1. This petition is filed by the employees of the Gujarat University, who at a relevant time belonged to the cadre of Junior Clerk. This petition has two facets. First is the decision of the Gujarat Universities Services Tribunal ('Tribunal' for short) dated 04.11.1999, rendered in Application Nos.38 of 1999 and 39 of 1999. Second facet of challenge is in respect of common seniority list, prepared by the University, pursuant to the said decision of the Tribunal.
2. Facts in brief are as follows:-
1. The petitioners belong to the cadre of Junior Clerk and Respondent Nos.2 to 11 (herein after referred to as 'private respondents') belong to the cadre of Typist. These private respondents had approached the Tribunal by filing the applications being Application Nos.38 of 1999 and 39 of 1999 contending that they were being illegally denied promotion to the post of Senior Clerk. They claimed their right according to seniority. The Tribunal allowed their petitions by common judgment dated 04.11.1999. This judgment was challenged by the University. Separate Special Civil Applications No.225 of 2000 and 226 of 2000 were filed. Since the present petitioners, who belonged to the cadre of Junior Clerk who were eligible for promotion to the post of Senior Clerk; the judgment of the Tribunal adversely affected them. They were not joined as respondents before the Tribunal. They, therefore, have filed this petition. One of the prayers is to set aside the judgment of the Tribunal dated 04.11.1999.
2. Pursuant to the decision dated 04.11.1999, since the University failed to get stay from this Court, the exercise of preparation of common seniority list was undertaken. A provisional seniority list was published on 28.02.2000. In such provisional seniority list one S.C.Shah holding the post of Typist, who is respondent No.2 in this petition was shown to have been appointed with effect from 21.09.1983. His seniority was provisionally fixed accordingly. The petitioners were not aggrieved by such positioning of respondent No.2. They raised no objection to the provisional seniority list. However, in the final seniority list S.C.Shah shown to have been appointed on 09.08.1977. His seniority was accordingly revised. He was placed ahead of Junior Clerks and Typists, who were appointed subsequently. Counsel for the petitioners submitted that all the petitioners were treated as regular appointees with effect from 01.04.1982. They thus became junior of S.C.Shah.
3. Second limb of the challenge in this petition, is in respect to such fixation of seniority of respondent No.2 S.C.Shah in final seniority list published by the University shortly after publication of provisional seniority list. The revision of seniority of S.C.Shah appears to be on his representation dated 21.03.2000, in which he objected to his assignment of place in the provisional seniority list. Though no such representation has been produced on record, learned counsel for the private respondents tendered a copy of the representation, which is taken on record.
4. The petitioners raised objection to the revision of seniority of S.C.Shah under their representation dated 27.12.2000. Such representation was not considered. Hence, this petition.
3. I may record that in prayer clause (C) of Paragraph No.12, the petitioners have prayed as under:-
“(C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order and/ or direction under Article 226 of the Constitution of India restraining the respondent No.1 to make further promotion on the basis of the existing final seniority list till the questions of promotional chanel and seniority of the Junior Clerks and typists are determined by this Hon'ble Court.”
4. Reading of such prayer may not include challenge to the seniority of S.C.Shah. However, if one reads entire petition, the replies that respondent No.2 filed to such petition and the rejoinder of petitioners, it becomes abundantly clear that question of assignment of seniority to S.C.Shah is the central controversy. Ignoring such minor error in drafting the prayer and also taking into account, prayer for granting any other and further relief in facts and circumstances of the case, I have examined the challenge to the seniority of S.C.Shah in the final seniority list.
5. With respect to the decision of the Tribunal, I have separately dealt with in the petitions filed by the University. In an order passed today, I have dismissed such petitions and confirmed Tribunal's order. It is not necessary to duplicate the discussion in this order.
6. This brings me to the sole surviving question namely, that of assigning appropriate seniority to S.C.Shah. It is not in dispute that S.C.Shah was appointed as Typist in the University on the regular basis with effect from 21.09.1983. The petitioners have produced a copy of such appointment order at Annexure “F”, which records that S.C.Shah is appointed on permanent post on probation for one year. It was stated in the appointment order that he should join his duties immediately. In the provisional seniority list his position is shown on the basis of this date of appointment i.e. 21.09.1983. In his representation, however, he pointed out that he was engaged as a Assistant (Type) in the Polyvalent Centre in the year 1977 where he had been working continuously from 09.08.1977. When he was appointed as Typist by order dated 20.09.1983, he was granted six advance increments. This was to give weightage to service already rendered by him. Therefore, his seniority should be counted of the year 1977, instead of 1983. On this basis the University revised his seniority in the final seniority list and he was shown to have been appointed with effect from 09.08.1977.
7. Learned counsel for the petitioners submitted that S.C.Shah become employee of the University only in the year 1983. He cannot be given his seniority for past service, which was not rendered in the University. She has relied upon the decision of this Court in case of Gujarat University Vs. Gujarat University General Employees Union reported in 2004(4) GLR 3222. It was a case wherein persons employed for doing work of Shramik Vidhyapith, which was an autonomous body, set-up and financed by the Central Government approached the Industrial Tribunal. The Industrial Tribunal directed the University to treat such employees on par with the employees of the University. Such decision of the Industrial Tribunal was challenged before this Court. Learned Single Judge referring to the decision of Apex Court in case of Jawaharlal Nehru Technological University Vs. Smt. T.Sumalatha reported in JT 2003 (6) SC 507 reversed the decision of the Industrial Tribunal holding that when there are salient features in the constitution of the Shramik Vidhyapeeth and its administration, it is difficult to hold that it is not an autonomous body and it is completely dependent on the management of the petitioner University. Merely because some orders regarding appointment have been issued pursuant to the advertisement given by the petitioner University under the signatures' of the Registrar of the University, they would not become the employees of the University. Learned Single Judge reversed the decision of the Industrial Tribunal accordingly.
8. On the other hand learned counsel Mr.Yagnik for the private respondents opposed the petition contending that the University has, by forming Rules adopted the principle of continuous officiation for seniority. S.C.Shah was appointed by the Vice Chancellor, after regular selection process. He has rendered his duties continuously, since he was appointed as Typist in the Centre. Six advance increments were granted for the past service already rendered. The final seniority list, therefore, suffered from no defects.
9. Learned counsel relied on the following decision, in support of his contentions:-
1. U.P. Electricity Board, Lucknow Vs. P.L.Kelkar reported in AIR 1987 SC 1701
2. B.K.Mohapatra Vs. State of Orrisa reported in AIR 1988 SC 24
3. Chief Engineer and Secretary, Engineering Department Vs. K.S. Brar & Anr. reported in 1988 SC 2106
4. M .B. Hiregoudar Vs. State of Karnataka and Ors. reported in AIR 1992 SC 410
10. I have also heard learned counsel Mr.Shelat for the University.
11. Having heard learned counsel for the parties, seniority of S.C.Shah is concerned, I am of the opinion that this aspect is squarely covered by the decision of the learned Single Judge in case of Gujarat University General Employees Union (Supra). Learned Single Judge held that the post in Shramik Vidyapeeth was under a centre run by the University, which was autonomous body. Service rendered in such organization, therefore, could not count towards seniority of Typist in the University. Appointment order of S.C.Shah was clear that he was appointed by order dated 20.09.1983, on probation of one year. He was required to join the duty immediately.
12. His service in the Polyvalent Centre, therefore, cannot be linked with his seniority in his ultimate absorption in the University. Admittedly, the post under the Polyvalent Centre was separate, distinct and not interchangeable. His rendering duty in whatever capacity, regular, ad-hoc or permanent, therefore, cannot be counted towards seniority in the eventual appointment as Typist on the post created by the University. This would be amply clear by the decision of the learned Single Judge.
13. The fact that he was granted six advance increments would not be sufficient to grant benefit of past service for seniority. The decision State Electricity Board UPSE Board (Supra) was rendered in background of the statutory provisions, which itself provided for the benefit of past service for seniority. In case a person was appointed by granting advance increment. No such rule of the University is pointed out to me in the present case. The Decision in case of B.K.Mohapatra (Supra) was rendered in the background, where upon merger of princely State of Orrisa, a rationalisation scheme for integrating services of teachers in different types were formed, granting the benefit of past service. In this background, Apex Court uphold the right of the employees to seek such benefits.
14. In case of Chief Engineer and Secretary, Engineering Department(Supra), the Apex Court on the basis of rule position upheld the employees’ demand for past seniority upon his transfer of service.
15. In case of M.B.Hiregoudar (Supra), the Apex Court was of the opinion that the employees were appointed in the year 1970 by the Director, who was appointing Authority. Subsequently he was regularly recruited and therefore, his seniority could not be disturbed.
16. The fact of the present case differs from above noted decisions. In the result, this petition is allowed in part. The seniority granted to S.C.Shah-respondent No.2 herein in the final seniority list, is set aside. He shall be considered to have been appointed on 21.09.1983. His seniority in final seniority list of the year 2000, shall be revised accordingly. His promotion to the post of Senior Clerk and further promotion, if any, shall be reconsidered on the basis of such revised seniority position. It is, however, clarified that by virtue of such exercise, if his promotions are being disturbed, the pay and allowances already granted to him for rendering service on higher post shall not be recovered. If by virtue of such exercise, any of the petitioners become eligible for consideration for promotion with retrospective date, the same shall also be considered. With the above directions, the petition is disposed of.
17. Learned counsel for respondent No.2 request to stay this order. The judgment is stayed till 15.04.2012.
..mitesh..
[AKIL KURESHI, J.]