A M PATEL SMT Vs. STATE OF GUJARAT
LAWS(GJH)-1979-4-4
HIGH COURT OF GUJARAT
Decided on April 11,1979

A.M.PATEL Appellant
VERSUS
STATE Respondents

JUDGEMENT

M.P.THAKKAR - (1.) This petition by 31 employees of the State Govenment working under the Director of Civil Supplies (Accounts) raises a question as regards their seniority vis a vis respondent Nos. 3 to 7. The petitioners were initially recruited as Clerks in the aforesaid directorate as temporary Government servants. At one time there was a dispute between the petitioners on the one hand and other employees of the afore said department by reason of the fact that the petitioners had been recruited directly by the Director of Civil Supplies. According to the other employees the recruitment of the petitioners was irregular in as much as they had not been recruited through the Gujarat Public Service Commission. The dispute between these two sections gave rise to a Writ Petition which was instituted by some of the petitioners. It was registered as Special Civil Application No. 767 of 1974. The Writ Petitioners in the aforesaid matter succeeded in this High Court. The other side carried the matter by way of an appeal by special leave to the Supreme Court of India. The Supreme Court of India by and large confirmed the decision of the High Court of Gujarat in P. C. Patel and Others v. Smt. T. H. Pathak and Others A. I. R. 1977 S. C. 101. The expression by and large has been employed in as much as a part of the order of the High Court of Gujarat was modified. The Supreme Court of India took the view that while the High Court was right in holding that the Writ petitioners of Special Civil Application 767/74 were regularly recruited and that Rule 29 of the Gujarat Non Secretariat Clerks Clerk typists and Typists (Direct Recruitment Procedure) Rules 1970 was not applicable the High Court should not have directed that the seniority of the aforesaid writ petitioners should be computed with effect from their respective dates of joining the service as clerks in the Directorate of Civil Supplies (Accounts) but should have left the question to the State Government with a direction to reexamine the question of fixing the seniority of the writ petitioners and to take appropriate action. Though Respondents Nos. 3 to 7 were parties to the afore said proceedings the question which is raised in the present petition was not agitated either before the High Court or the Supreme Court and the question of principle in regard to the fixation of seniority of the petitioners vis a vis respondent Nos. 3 to 7 in the context of the present controversy is wide open.
(2.) Spot light may now returned on the nature and content of the present controversy. Respondent Nos. 3 to 7 were initially recruited in some other departments of the State Government as temporary Government servants in the cadre of Clerks through the Gujarat Public Service Commission prior to 1970. Presumably due to the contraction of the cadre in 1970-71 in the respective departments where they were working they were declared as surplus. As they were temporary Government servants and as they were declared surplus their services were liable to be terminated. Instead of terminating their services they were allotted to the Directorate of Civil supplies (Accounts) (to which the petitioners belonged) for appointing them in the said directorate. They were accordingly appointed as temporary Government servants in the cadre of clerks by the Director of Civil Supplies (Accounts) in 1970-71. The dispute has arisen ins the aforesaid background as to whether the seniority of respondents Nos. 3 to 7 in the cadre of Clerks in the Directorate of Civil Supplies (Accounts) as temporary clerks should be fixed having regard to the respective dates of their appointment as temporary clerks in the aforesaid directorate in 1970-71 or whether their seniority should be determined having regard to their initial appointment in the other departments of the State Government where they were employed as temporary clerks and from where they were declared as surplus. The contention of the petitioners is that their seniority as temporary clerks in the aforesaid directorate should be computed only with effect from the date on which they were appointed as such in this directorate in 1970-71. Respondent Nos. 3 to 7 on the other hand contend that though they were appointed in 1970-71 upon being declared as surplus their seniority must relate back to their initial appointment in the other departments from where they were declared as surplus. The State Government has supported the stand taken by respondent Nos. 3 to 7 And it is this controversy which is required to be resolved in the present petition. On behalf of the petitioners reliance was placed on a Government Circular No. EST-1063-C dated February 14 1964 at Annexure III which reads as under; "Order issued under Government Circular General Administration Department No. EST-1062/C dated 16th July 1962 regarding allowing to count the service rendered by a Government servant in one Department on transfer to another Department at his own request for the purpose of seniority should be treated as cancelled. The cases of seniority which have been regularised in the light of the orders contained in the said Circular should be reviewed and seniority in those cases would be fixed in accordance with the normal rules. The seniority of the person coming to new cadre at his own request should be fixed below all the existing persons in the cadre except when there are grounds of public interest or exigencies of service or there are exceptional reasons for warranting grant of higher seniority for which orders of Government should be obtained". The aforesaid resolution provides that in case where a Government servant in one department is transferred at his own request to another department his seniority should be fixed in accordance with his date of appointment in the cadre to which he is appointed or transferred and that he would rank as junior to the employees appointed in the said department prior to his transfer to this department. If this principle could be applied to the case of respondent Nos. 3 to 7 the petitioners (except petitioners Nos. 20 to 24) must succeed. However it is contended on behalf of respondent Nos. 3 to 7 and on behalf of the State Government that this resolution will not apply by reason of the fact that there is nothing to show that respondents Nos. 3 to 7 were transferred to the Directorate of Civil Supplies (Accounts) at the request of the concerned respondents. It is no doubt true that there is nothing to show that they were transferred at their own request. On the other hand it is not in dispute that they were rendered surplus and their services were liable to be terminated. Instead of terminating their services by way of an ameliorative measure they were allotted to the Civil Supplies Department (Accounts). They were not allotted to this department against their wishes. In fact they were allotted to this directorate for their benefit in order to protect them from their services being terminated as they had been rendered surplus in the departments in which they were initially recruited as temporary clerks. The principle of seniority embodied in Circular Annexure III would therefore apply in spirit if not in letter. Be that as it may barring the aforesaid Circular dated February 14 1964 there was no other Govt. circular or resolution designed to meet a situation like the one which has bee created in the context of the aforesaid circumstances. The General Administration Department Government of Gujarat has on April 18 1978 issued Circular No. SNR-1078/1605/G as per Annexure E which according to the petitioners squarely covers a situation like the present one. The circular deserves to be quoted in extenso. The preamble clearly shows that the Government was facing the problem as regards the seniority of Government servants in two types of cases (1) where at his own request an employee was transferred to some other department and (2) when upon an employee being declared surplus he was absorbed in a post in a corresponding pay scale or in a lower pay scale elsewhere. Paragraph 3 of Annexure E deals within the second category of cases. It is provided that when an employee is rendered surplus by reason of closure of a department or for any other reason on reduction of post the employee concerned would be liable to have his services terminated on being declared as surplus. However the matter required sympathetic consideration in view of the fact that such an employee would find it difficult to secure employment elsewhere. On compassionate ground therefore the Government policy is to absorb him in a post in corresponding pay scale or in a lower pay scale as far as possible. In such a case the seniority of the employee concerned will have to be fixed below the existing employee in that cadre in the department in which such an employee is absorbed. If an occasion arises for retrenchment the junior most employee on the basis of the fixation made in accordance with the aforesaid principle would be liable to be retrenched.
(3.) The aforesaid instructions issued by the State Government in this behalf squarely cover a situation like the present one. The principle of seniority so evolved is both rational and fair. Mercy to one cannot be at the cost of cruelty to another. It would be a self defeating measure. It is no fault of the employee of the transferee department that there is contraction in another cadre. The misfortune of the employees of the said cadre cannot be transferred to the employees of the transferee cadre. If in order to ameliorate the misfortune of the other cadre the surplus employees are to be transferred and absorbed in the transferee cadre it can be done without hurting the existing employees of the transferee cadre. There is no reason why the existing employee should be made to suffer in the matter of seniority. Those who are absorbed in this department on compassionate ground would naturally rank junior to those who were already appointed prior to the absorption of the employees rendered surplus in other departments. The principle embodied in the aforesaid circular stands to reason and meets the test of fairness. In view of these instructions the petitioners (except petitioners Nos. 20 to 24) must succeed in their plea that the seniority of respondents Nos. 3 to 7 should be fixed with effect from the date they were absorbed on compassionate ground in the directorate of Civil Supplies (Accounts) in 1970 or 1971. On behalf of respondents it is however contended that Annexure F. would have prospective operation only and would not have retrospective operation. In other words the argument is that if such an eventuality arises and employees of a department are rendered surplus after April 18 1978 (the date of issuance of the Circular) and there is an occasion to absorb them then this principle of seniority would apply. It cannot be applied (such is the argument) to those whose services were rendered surplus and were absorbed 7 years earlier in 1970 or 1971. It is not possible to accede to this argument. There in no question of prospective or retrospective operation at all. The Government had not so far formulated the principle of seniority in respect of the employees rendered surplus in one department and absorbed in other department on compassionate grounds in similar circumstances. There was no existing policy decision and no existing rule for fixing their seniority in the department wherein they were absorbed. There was a vacuum. This vacuum has been filled in by evolving a policy decision as per Annexure E. It will therefore apply to all outstanding disputes pertaining to such employees whose seniority requires to be determined in accordance with the same principle whether they were declared surplus and absorbed in the past or whether such occasion arises after the issuance of Annexure E. It would have been a different matter if there was a policy or principle which had already been formulated by the State Government prior to the issuance of Annexure E and all that was sought to be done was to modify the said policy or principle as per the new directive calculated to operate prospectively. In the present case it is not shown that there was any rule or policy decision for fixing the seniority of the employees rendered surplus in one department and absorbed in a different department vis a vis the existing employees of that department on the date of absorption. Under the circumstances the State Govt. is bound to apply the principle formulated by itself at Annexure E which is a rational and reasonable principle. In fact respondent Nos. 3 to 7 have not even contended that the principle embodied in Annexure E is either unreasonable or irrational or unfair. It is surprising that the State Government which has evolved this principle of fixing seniority after due consideration could have thought it proper to side with respondent Nos. 3 to 7 and to contend that a contrary principle should be applied in respect of fixation of seniority of the petitioners (except petitioners Nos. 20 to 24) vis a vis respondents Nos. 3 to 7.;


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