I K SONI Vs. STATE OF GUJARAT
LAWS(GJH)-1988-8-1
HIGH COURT OF GUJARAT
Decided on August 29,1988

I K Soni Appellant
VERSUS
STATE OF GUJARAT Respondents


Cited Judgements :-

WILLIAM LEONG VS. ADDITIONAL DEPUTY COMMISSIONER, JAINTIA HILLS & ANOTHER [LAWS(GAU)-1990-3-16] [REFERRED TO]


JUDGEMENT

R.C.MANKAD - (1.)Conflict of interest between direct recruits and deputntionists from the Government working in the Gujarat State Civil Supplies Corporation Ltd. ( Corporation for short) respondent No. 1 herein has led to the filing of these petitions. The main questions which are raised on behalf of the direct recruits are: (1) all deputationists should be repatriated to their parent departments (2) seniority and promotion should only be given to the direct recruits and in the alternatives (3) the deputationists should be given seniority only from the date of their absorption in the Corporation. Deputationists from the Government on the other hand have prayed for direction against the Corporation to pass appropriate orders for their absorption in the Corporation. Since common questions arise for my determination in these petitions they are disposed of by this common judgment.
(2.)Facts giving rise to these petitions briefly stated are as under: Food and Civil Supplies Department of the Government of Gujarat Directorate of Civil Supplies Directorate of Civil Supplies (Accounts) and Directorate of Food were entrusted with the task of regulating and controlling the supply of food-grains and other essential commodities through the public distribution system. There were ills and disadvantages of bureaucratic administration and therefore it was decided to set up the Corporation to do away such ills and disadvantages. The Corporation a wholly owned Government Company incorporated under the Companies Act 1956 came to be constituted pursuant to Government Resolution dated 25/09/1980 passed by the Government of Gujarat (Government for short) in Food and Civil Supplies Department. The Corporation was mainly established for the purpose of undertaking supply of food-grains and other essential commodities through public distribution system in the State of Gujarat. On the establishment of the Corporation certain activities which wore hitherto carried on by the Department of the Government were transferred to the Corporation. The Corporation required staff to run its administration and to carry out the functions entrusted to it. The entire staff of the Corporation in the beginning was supplied by the Government by giving services of employees on loan to the Corporation. Since the activities of the Government were transferred to the Corporation certain employees of the Government were transferred along with the activities and posts 1o the Corporation. Such transfers of Government employees were made from the aforesaid three Directorates and the Food and Civil Supplies Department of the Government. The godowns in the State which were previously under the control of Food and Civil Supplies Department were also transferred to the Corporation. Services of large number of Government employees working in the said godowns were also transferred on deputation to the Corporation. It would thus appear that many Government employees came to be transferred alongwith the activities to the Corporation. This was found necessary because the Corporation had to be manned by experienced staff so that it could discharge its functions efficiently and effectively. The terms and conditions on which the Government employees were transferred on deputation to the Corporation were contained in Resolution dated 20/09/1980 of the Government in Food and Civil Supplies Department which is at Annexure A in Special Civil Application No. 1166 of 1986. Under the said Resolution at the end of one year Government employee on deputation to the Corporation if found suitable by the Corporation was to be given option for absorption in the Corporation on such conditions as the Corporation may decide. The Corporation issued a Circular dated 4/04/1981 inviting options from Government Employees on Deputation (Deputationists for short). In response to the Circular many deputationists exercised option to be absorbed in the service of the Corporation. The Corporation however; did not take any decision on the question of absorption of the deputationists as the Government had not finalised the guidelines for absorption/repatriation of the deputationists. The deputationists have therefore filed Special Civil Application No. 5242 of 1585 seeking direction against the Corporation for their absorption. By an order passed in the said petition by way of interim relief this Court directed the Government to finalise the guidelines for absorption/repatriation of the deputationists within a period of three months from the date of the order. The Government has therefore it appears by Resolution dated 20/02/1986 issued by the Government in Food and Civil Supplies Department Annexure II to the affidavit-in-reply filed on behalf of the Corporation in Special Civil Application No 1166 of 1986 framed Rules for the absorption of deputationists. The process of absorption of the deputationists however has not yet been completed by the Corporation.
(3.)The Corporation has besides taking services of the deputationists on loan from the Government directly recruited employees in accordance with its requirement. Petitioner No. 1 in Special Civil Applications Nos. 1166 of 1986 and 6733 of 1986 is an Association representing persons who have been directly recruited by the Corporation while rest of the petitioners in these two petitions are persons who are directly recruited. It is not disputed that whenever a person was directly recruited by the Corporation letter of appointment was in the form which is at Annexure III at page 55 of Special Civil Application No. 1166 of 1986. The terms and conditions on which the appointment was made by the Corporation were stated in these letters of appointments. Condition No. 10 in the letter of appointment was to the effect that no objections will be entertained in regard to seniority of deputationists working in the Corporation on decision being taken to absorb them with retrospective effects. Whenever a direct recruit was promoted by the Corporation the order of promotion was in from which is at Annexure II at page 53 of Special Civil Application No. 1166 of 1986. This order clearly stated: The promotion is temporary in view of the fact that the case of the deputationists working with the Corporation and for being absorbed in service are under consideration and in the event of such deputationists being absorbed in the service of the Corporation the inter se seniority in the post of Assistant/Assistants Depot Manager will have to be refixed. It would thus appear that whenever direct recruit was appointed or promoted by the Corporation it was subject to absorption of the deputationists and fixation of inter se seniority between the deputationists and direct recruits. It is however contended on behalf of the direct recruits that there is sufficient number of direct recruits to run the administration of the Corporation and discharge its functions and therefore there is no need to continue the deputationists on the establishment of the Corporation. The deputationists should therefore be repatriated to their parent department in the Government. In any case the deputationists are not the employees of the Corporation and therefore they can not be considered for promotion to higher posts in the Corporation. According to the direct recruits deputationists have no right to claim promotion or seniority in service against direct recruits. Deputationists if treated on par with direct recruits will have the effect of denial of right of seniority are promotion to the direct recruits. It is submitted that the deputationists have lien over the post which they were holding in the Government and they will be entitled to promotion in the Government in accordance with the Rules applicable to them. Direct recruits can claim promotion to higher posts only in the Corporation Therefore if the deputationists are treated on par with the direct recruits they will have double advantage or they will continue to get all the benefits including promotion as Government employees and in addition they will also be entitled to promotion to higher posts in the Corporation. It is therefore submitted that the action to treat the deputationists on par with the direct recruits so far as the service of the Corporation is concerned would be arbitrary and discriminatory and violative of Art. 14 of the Constitution. In the alternative it is submitted that the deputationists should be considered for promotion and other benefits available to employees of the Corporation only on their absorption in the service of the Corporation and their seniority in the service of the Corporation should be reckoned only from the date of their absorption in the service of the Corporation. On the aforesaid ground the direct recruits have prayed for the reliefs to the following effect in Special Civil Application No. 1166 of 1986:
(1) The Government and the Corporation be directed to repatriate all the deputationists to their parent departments.

(2) The Corporation be directed to give seniority and promotion only to the direct recruits.

(3) The Corporation be restrained from offering any option to any of the deputationists who have completed one years service with the Corporation or in the alternative:

(4) The Corporation be directed to give seniority to the deputationists only from the date of their absorption in the service of the Corporation.
In Special Civil Application No. 6733 of 1986 besides claiming the reliefs to the above effect the direct recruits have prayed for quashing and setting aside of the orders Annexure F and G to the petition by which the deputationists were appointed/promoted by the Corporation and the approval in that regard was granted by the Government.
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