ABICHANDANI - (1.). The Appellants, who were original-respondents Nos. 3 and 5, seek to challenge the order passed in Special Civil Application No. 101 of 1978 on 10/11-4-1979, partly allowing the petition directing the concerned authorities to determine the seniority of the .writ petitioners in light of the principles contained in the Government Circular dated 18/04/1978 and in light of the observations made in the Judgment.
(2.). The writ petitioners (Respondents Nos. 3 to 33 in Letters Patent Appeal No. 155 of 1979) were appointed in the Office of the Director Civil Supplies (Accounts) as Clerks. A dispute had earlier arisen in Special Civil Application No. 767 of 1974 before this Court since the petitioners who were recruited by the Director of Civil Supplies (Accounts) were being treated as irregular recruits as they were not appointed either through the Gujarat Public Service Commission or under the Centralised Recruitment Scheme. In that Special Civil Application No. 767 of 1974 which was decided on 28/02/1975, this Court had taken a view that the Centralised Recruitment Scheme was not applicable when those writ petitioners were appointed in the Directorate of Civil Supplies (Accounts) or in the Office of the Deputy Director of Civil Supplies (Accounts) and that their posts were not within the purview of the Gujarat Public Service Commission until 1/03/1969. It was held that the appointments of those writ petitioners were regular and were not therefore required to be regularised under Rule 29 of the Gujarat Non-Secretariate Clerks, Clerk-Typists and Typists (Direct Recruitment Procedure) Rules, 1970. The Supreme Court upheld the decision of the High Court that those writ petitioners were not irregular recruits and found that the State Government had erred in thinking that their initial appointments were irregular and had to be regularised in accordance with the provisions of Rule 29 of the said Rules (P. C. Patel & Ors. v. T. H. Pathak and Ors., AIR 1970 SC 101). As regards seniority, the Supreme Court observed that it was advisable for the State Government to re-examine the whole matter and to take appropriate action to give effect to their intention of ameliorating the lot of those writ petitioners and directed that the State Government may examine the question of fixing their seniority and to take action to ameliorate their lot as temporary employees. Thus, the question of the fixation of seniority of those writ petitioners (which included some of the present writ petitioners) vis-a-vis, the respondents Nos. 3 to 7 (in the Special Civil Application No. 101 of 1978) who were selected through the G. P. S. C. and other departments and initially recruited in other departments, was kept wide open. Thereafter, by their Circular dated 1 7/10/1977, the Directorate of Civil Supplies (Accounts) published a seniority list of Clerks, Clerk-Typists and Typists as on 1-1-1977. As per the said Circular, it was decided that the seniority of Clerks, Clerk-Typists and Typists appointed prior to 1/03/1969 in the Directorate of Civil Supplies (Accounts) should be determined from the date of their appointment to the cadre Irrespective of the fact whether they were appointed through the Employment Exchange or by direct selection from open market. It was further decided that in case of Public Service Commission candidates, their seniority Was to be determined from the date of their appointment as P. S. C. Candidates as per existing instructions. It was however clarified in paragraph 6(1) that the seniority of the P. S. C. selected candidates had been finalised according to the Government orders dated 13-6-1977 pending final decision of the Government on the various representations received against those Government orders. Since these original respondents Nos. 3 to 7 were admittedly appointed in the Directorate of Civil Supplies (Accounts) after the appointment of the writ petitioners, they felt aggrieved against these original respondents Nos. 3 to 7 having been shown senior to them on the basis of the dates of their original appointment in other departments from where they were ultimately declared to be surplus, and therefore were accommodated in the Directorate of Civil Supplies (Accounts). The learned single Judge found that, as these original respondents Nos. 3 to 7, who had been appointed in other departments which were within the purview of the Public Service Commission were declared surplus, their services were liable to be terminated as they were only temporary Government servants. However instead of terminating their services they were re-allocated to the Directorate of Civil Supplies (Accounts) to which the writ petitioners belonged for appointing them in the said Directorate. They were accordingly appointed in the Directorate of Civil Supplies (Accounts) in 1970-71. The learned single Judge rejected the contention of the original respondents Nos. 3 to 7 that though they were appointed in the Directorate of Civil Supplies (Accounts) in 1970-71, on being declared surplus in other departments, their seniority in this Directorate must relate back to the date of their initial appointment in the other departments where they were declared surplus. The learned single Judge, having regard to Clause 6(1) of the impugned Circular dated 17/10/1977, found that since the fixation of seniority of the P. S. C. candidates was done pending final decision of the Government on various representations received against the Government orders pertaining to seniority of P. S. C. candidates, the Government was seized of the matter of resolving the question of fixation of seniority on a principle and in the wake of the said Circular dated 17/10/1977, this question was resolved by the Government by taking a policy decision by Circular dated 18/04/1978 which adopted a rational and fair principle of seniority and the principle of seniority so formulated applied to all outstanding disputes pertaining to such employees whose seniority required to be determined in accordance with the same principle irrespective of whether they were declared surplus and absorbed in the post or whether such action arose after the issuance of the Circular dated 18/04/1978.
(3.). Two of the original respondents Nos. 3 to 7 being respondents Nos. 3 and 5, have challenged the said decision of the learned single Judge in Letters Patent Appeal No. 155 of 1979 and the State of Gujarat has also challenged the same in Letters Patent Appeal No. 38 of 1980. At the hearing of these appeals, it was contended by the learned Counsel Mr. S. N. Shelat appearing for the appellants in Letters Patent Appeal No. 155 of 1979 that the Circular dated 18/04/1978, which was sought to be used against the appellants for fixation of their seniority below all the employees who were already working in that Directorate when they were appointed after being declared surplus from the other departments, could not have been made applicable to the appellants since it was not in existence at the time when they were appointed in the Directorate of Civil Supplies (Accounts), Mr. Shelat further contended that in view of the Government Circular dated 23/12/1977, which was issued in context of Rule 21(3) of the said Rules, the seniority of the employees which is fixed from the date of passing the post training examination or the date of regular appointment whichever is later is protected in the event of re-allotment of the candidates from one office to other office on administrative grounds. It was contended that merely because the original respondents Nos. 3 to 7 were transferred to or posted in another office their seniority cannot be disturbed and should have been kept intact. Reliance was placed in support of this contention on the decision of this Court in Special Civil Application No. 1138 of 1979 and 3136 of 1981 decided on 24/06/1986 and the decision in Letters Patent Appeal No. 348 of 1982 decided on 6/02/1991. The learned Counsel appearing for the State supported these contentions.