JUDGEMENT
P.M.CHAUHAN -
(1.)initially appointed as Clerks on 24/02/1961 and 17/06/1961 respectively by the Director of Ports Gujarat State Ahmedabad and subsequently promoted as Senior Clerks on 29/10/1977 were sought to be reverted to the post of Clerks by order dated Novem 15/11/1979 as their provisional seniority was sought to be fixed at a lower stage considering them as regularly appointed only from 17/04/1971 and not from the date of their appointment as they appeared and passed through the test by Gujarat Public Service Commissioner under the Gujarat Non-Secretariat Clerk-typists and Typists (Recruitment) Rules 1970 and the Gujarat Non-Secretariat Clerks Clerk-typists and Typists (Direct Recruitment Procedure) Rules 1970 The main contention of the petitioners is that they should be considered as regularly appointed Clerks from the date of their appointment and not from the date of passing the above referred examination held by the Gujarat Public Service Commission (hereinafter referred to as the Cr. P. S. C.) and accordingly they are not liable to be reverted. For the purpose of appreciation of the rival contentions and appreciating the subsequent developments after filing this Special Civil Application the facts may be stated in short.
(2.)Petitioner No. 1-B. P. Chauhan was recruited as a Peon on 20/12/1960 in the Office of the Director of Ports and by order dated 24/02/1961 he was appointed to officiate as a Junior Clerk temporarily until further orders against the existing vacancy as he was qualified and eligible to be appointed to the said post. He was then placed in the Selection Grade and promoted as Senior Clerk on 29/10/1979 After this petition was filed on 19/11/1979 the Gujarat Maritime Board was established under the Major Ports Act and the grievance of the petitioner No. 1 are mostly resolved. His seniority has been fixed at Sr. No. 36 In the Seniority List and was promoted as Head Clerk with effect from 20/07/1968 Petitioner No. 2-J. S. Patel was appointed as Junior Clerk on 17/06/1971 and was placed in the Selection Grade on 1/04/1976 and promoted as Senior Clerk on 20/10/1977 He has however voluntarily retired from service on 1/10/1983 Even though he has retired he has asserted his rights so that he may get other service benefits.
(3.)The State of Gujarat came into existence on 1/05/1960 on bifurcation of bi-lingual Bombay State and the Office of the Director of Ports was established at Ahmedabad. After the formation of the State of Gujarat Government of Gujarat issued various Government Resolutions for the recruitment of clerks and other such Class III services by Government Resolution No. A.S.C. 20269-B dated 21/11/1960 the Government of Gujarat in supersession of the previous Government Resolutions regarding the recruitment of the Clerks; Junior Assistants Typists Steno-typists Stenographers Gr. I and Gr. II implemented the Scheme for the recruitment of the above cadres in the Government Department and other Head Offices as specified in Schedule B to the Resolution. For that purpose the Government has also considered the Bombay State Political and Service Department Resolution dated September 18 1952 It is also directed in the Government Resolution dated 21/11/1960 that from 1/05/1960 and after that the Head of the Departments and the offices specified in Schedule B should not appoint the clerks or other categories of the employees specified above except on temporary basis and on the condition that such employees will be replaced by candidates selected by the G. P. S. C. By that Government Resolution the specified departments and the Head Offices were placed within the purview of the G. P. S. C. In the Schedule the Office of the Director of Ports was not included and therefore the Office of the Director of Ports was not placed within the purview of the G. P. S. C. It is also clear that by that Government Resolution previous Government Resolutions were superseded and therefore the previous Government Resolutions by which the recruitment of the clerks in the Office of the Director of Ports was covered did not govern the recruitment of the clerks in that department. The Centralised Recruitment Scheme for ministerial posts and particularly for posts of clerks in District and Regional Offices of different departments was promulgated by Government Resolution No. RAC-1062-F General Administration Department Government of Gujarat dated 21/01/1963 and by that Government Resolution the scheme for centralising in the recruitment of clerks in District and Regional Offices of various departments which were not within the purview of the G. P. S. C. was implemented. Centralised Recruitment Scheme also provided for temporary employment and replacement of such temporary employed clerks by regularly appointed clerks under the Scheme. It is not the case of either of the parties that the Centralised Recruitment Scheme was applicable and therefore it is not necessary to consider the details of that Scheme. It is not contended by the respondents that the recruitment of the clerks was governed by that Scheme. On the contrary the Contention as stated in the affidavit-in-reply Sled by Mr. P. J. Jadeja Admini- strative Officer is that the recruitment of the clerks in the Office of the Director of Ports at Bombay was within the purview of the Public Service Commission. It is also admitted position that the Office of the Director of Ports is a State level Office and not a District or Regional Office. The Office of the Director of Ports is situated at Ahmedabad. The Government Resolution dated 21/01/1963 was modified and the Government sanctioned the revised scheme by Government Resolution dated 9/07/1964 and it was specified that the recruitment of the clerks in District and Regional Offices of all departments which were not within the purview of the Gujarat Public Service Commission may be made as per the said Scheme. It is not necessary to consider the details of the Centralised Recruitment Rules for the purpose of this petition. After the Government Resolution dated 21/11/1960 the Government issued another Government Resolution Addendum No. ASC 1063/14523-A dated 28/10/1963 by which the Office of the Director of Ports Ahmedabad was added in Appendix B to the Government Resolution General Administration Department No. ASC- 2260 dated 21/11/1960 by which the Scheme for the recruit- ment to the post of Junior Assistants Clerks etc. in the departments of secretariat and offices of the Heads of Departments etc. at Ahmedabad was specified. The Office of the Director of Ports Ahmedabad being office of the Head of Department was added in Appendix B to the aforesaid Govt. Resolution but it was not specifically stated that the Scheme will be applicable from 1-5-1960. Before the Government Resolution dated 28/10/1963 was issued and Schedule B was amended both the petitioners were already appointed as Clerks in 1961. The Director of Ports considered that the recruitment of the clerks in that department also came within the purview of the Gujarat Public Service Commission from 1/05/1960 in view of the Government Resolution dated 10/10/1963 and therefore issued the Circular dated 19/02/1964 directing the clerks and typists appointed by that office after 1/05/1960 that it was in their interest to get through the test by the Public Service Commission to continue in the service and their services could be continued subject to their passing the G. P. S. C. examination. They were also advised to pass through the examination before the C.P.S.C. selectees were posted in that department. They were also informed that not more than two trials will be afforded and in case of repeated failure they will be replaced by the candidates selected by the Public Service Commission. Such clerks and typists were also reminded by another Circular dated 21/09/1964 Petitioners did not appear in the test by the Public Service Commission possibly because they were asserting their right to continue in the service as they were regularly appointed by the competent authority. It also transpires that the department also did not take it seriously and the G. P. S. C. selectees were not posted vice the petitioners.
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