THAKKER - (1.)This group of 102 petitions is filed by the State of Gujarat against orders passed by the Gujarat Civil Services Tribunal in Appeal Nos. 439 of 1982 and others on 13/10/1983 and also against an order passed in Review Application No. 7 of 1984, on 31/05/1984.
(2.)To appreciate the controversy in question, few facts may now be stated. The respondent in each petition was selected by the Gujarat Public Service Commission (GPSC for short) for the post of Clerk in Secretariat Department and other offices at Ahmedabad. The Recruitment Rules for the purpose of appointment to the post of Clerks in Lower Division of Subordinate Secretariat Service have been framed under the proviso to Art. 309 of the Constitution of India on 14/06/1966. The relevant rules are Rules 1 and 2 and they read as under :
"(1) The appointment shall be made either - (a) by direct selection on the result of the Competitive Examination held by Gujarat Public Service Commission; OR (b) by promotion of members of Class-IV service of proved merit and efficiency. (2) To be eligible for appointment by direct selection the candidates must - (a) have attained the age of 18 years and not have attained the age of 25 years on the first day of the month, immediately following the month in which a period of ninety days from the date of the first publication of the notification or the advertisement for the post by Commission expires, (b) have passed the S. S. C. Examination or an examination recognised by Government as equivalent to it, and (c) the candidate appointed by direct selection, shall be required to undergo such training and to pass such departmental examination as are prescribed by Government from time to time according to the procedure prescribed in an Annexure to these rules, before he is appointed to the regular post of Clerk."
Reading the above rules, it becomes clear that an appointment to the post of Clerk can he made by direct selection on the basis of the result of the competitive examination held by the GPSC and, to be eligible for appointment by direct selection, the candidate must undergo training and must pass departmental examination as prescribed by the Government from time to time in accordance with the rules. The case of the State-Government is that the statutory scheme for filling posts of directly recruited clerks has been prepared and as per that scheme, the candidates who have been selected by the GPSC and recommended for the appointment as Clerks will have to be sent for training for a period of two months (1-1/2 month for theoretical training and 1/2 month for practical training). After the period of training is over, all the candidates will be required to pass departmental examination and only after the training is over and the candidate successfully passes the examination, he can be appointed as a regular clerk. The statutory scheme also provides that the selected candidate will be appointed to a supernumerary post of Clerk in a Secretariate Department and he shall have to undergo training and pass the examination in accordance with the training scheme and his recruitment will be subject to the terms and conditions specified in it. He will be continued against supernumerary post till his appointment to a regular post which will be made after he has received prescribed training and passed the examination in accordance with the training scheme. In case of his failure in examination at first attempt, he will be required to proceed on leave without pay and appear in the subsequent examination. He will be required to remain on leave without pay till he has passed that examination. If a supernumerary clerk does not appear in the examination after completion of the training, he may be required to proceed on leave without pay till such time as he passes the posttraining examination and qualifies himself for the appointment to a regular post. A bond is required to be executed by the candidate. The scheme for the post-entry training of directly recruited clerks provides for payment of the fixed amount without any allowance to supernumerary clerks. Clause (ii) states that a supernumerary clerk 'will start getting full pay and allowances of a clerk only after he has been appointed to regular post of clerk'. (emphasis supplied) Clause (v) is relevant and it reads as under :
"(v) An examination will be held after the training period is over and Supernumerary Clerks who have completed the training programme will be required to pass this examination. Interval between the completion of the training period and commencement of this examination will not be more than 15 days. During this period Supernumerary Clerks will be required to work in different departments of Secretariate or other offices. If, however a Supernumerary Clerk wishes to take leave during this period he may be granted leave without pay."
Looking to clause (v), it clearly appears that during the period before a candidate is appointed as a regular clerk after declaration of the result, he will be required to work in different departments of the Secretariate or other offices and if a supernumerary clerk wishes to take leave during the said period, such leave may be granted without pay. Clause (ix) is also material which reads as under :
"(ix) A Supernumerary Clerk will be appointed to a regular post of Clerk in a Secretariate Department or in an office of Head of Department after he has passed the post-training examination. He will continue to work as a supernumerary hand during the period between the completion of the examination and declaration of the result of the examination. He will be appointed in a regular post immediately after the declaration of the result if he passes in the examination. In the event of failure in the examination in this first attempt, he will be required to proceed on leave without pay, and to appear in the subsequent examination. He will be required to remain on leave without pay till he has passed the prescribed post training examination. He will be appointed to a regular post only after he has passed this examination."
(Emphasis supplied) Clause (xi) provides for seniority and it enacts that a supernumerary Clerk who passes the post-training examination earlier will become senior to those who pass it later. Inter-se seniority of those who pass the said examination on the same day will be determined according to their rank in the competitive examination held by the GPSC.
(3.)More than 100 employees of the State Government approached the Gujarat Civil Services Tribunal by filing appeals for various reliefs inter alia contending that after they were selected by the GPSC for the posts of Clerks in Secretariate Department and other offices at Ahmedabad, they were required to take training and after passing the post-training examination they were required to be appointed as regular clerks in the Departments of the Secretariate and other offices. Ordinarily, after the selection by the GPSC, such Candidates were to be given training and only after the post-training examination and declaration of the result of the said examination, they were to be appointed as Clerks. However, in view of the administrative exigencies at the relevant point of time the General Administration Department (GAD for short), decided to appoint them as untrained temporary Clerks and before they were given training and before they could clear the examination, they were appointed as supernumerary Clerks. During the period of training and upto the date of the result of the examination, the candidates were to be paid a fixed amount of Rs. 250/- by way of stipend in view of the fact that they were not to be appointed to the post of Clerk. But if a regular appointment is made to the post of Clerk, such candidate would be entitled to get regular pay scales. It was the case of the appellants before the Tribunal that in view of the fact that the GAD wanted services of the appellants even prior to sending them for training and declaration of the result of departmental examination, they were appointed as supernumerary clerks and they were paid salary for the said period. In due course, they were sent for training for a period of two months (1 1/2 month for the theoretical training and for 1/2 month practical training), they appeared for the post-training examination and all of them had successfully cleared the said examination. However, during the period of training of two months as well as till the result of the examination was declared the appellants were paid only Rs. 250.00 per month by way of stipend. The said action was clearly illegal, ultra vires and unconstitutional and was required to be interfered with. It was also submitted by the appellants before the Tribunal that since they were appointed as supernumerary Clerks after they had cleared the GPSC before the training as well as post-training examination, their seniority was required to be considered in the light of the original appointment as supernumerary Clerks and the action of the respondent-State Government in ignoring their seniority till they came to be regularly appointed for the first time after the declaration of the result was also contrary to law.