TMI Blog2016 (1) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... Administration Department confers right in favour of regularly selected candidates for appointment after following recruitment process to be re-appointed in the original cadre. The person concerned also has a right to be reappointed in the original cadre with the seniority that he enjoined before joining another post. The Circular dated 21st November 2014 issued by the Revenue Department is at the most an administrative instruction. If the same is contrary to the Government Resolution dated 4th May 2007, the same cannot be allowed to prevail. The said circular clearly provides that once resignation is tendered by a Government employee appointed on contractual basis, he cannot be reappointed without prior approval of the Revenue Department. As discussed above, such policy is understandable as frequent hopping from one cadre to another cadre may cause lot of administrative issues, and therefore, prior approval of the Department would be necessary, if some body is desirous of rejoining the post. However, to say that once the service of the employee are ended who joined on contractual basis, there should be no provision to reappoint them is surely against the essence of Government R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Class III] dated 7th December 2013. The petitioner made a request to the authorities to allow him to join as Commercial Tax Inspector, and therefore, the respondent no. 2 issued an Order dated 12th December 2013 relieving him from the post of Deputy Mamlatdar after office hours on 12th December 2013 to join as Commercial Tax Inspector under the control of respondent no.3. 4. The petitioner since was not comfortable on the post of Commercial Tax Inspector, he made a request to the Joint Secretary [Services], Revenue Department on 2nd May 2014 to allow him to join back his duties as Deputy Mamlatdar on a plea that socially, physically and mentally, the work of Commercial Tax Inspector was not suitable to him. A reminder was also sent to the respondent no. 1 on 3rd December 2014 to reappoint him as a Deputy Mamlatdar. The respondent no. 1 therefore issued a Circular dated 21st November 2014 stating therein that the procedure to be followed in case of the petitioner is of resignation of the employee appointed on contractual basis in the fixed pay. In other words, it is the say of the respondent that once the resignation is tendered by the employee appointed on contractual basis, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial Tax Inspector. It is further the case of the respondent that the case of Mahendra Parmar v. State of Gujarat Ors. [Supra] differs materially from the facts in the instant case. The resolution dated 4th May 2007 is applicable to the employees who are on permanent basis. The petitioner has been appointed only on fixed contractual period of five years, and therefore, he is not entitled to any benefits which are likely to be given to the permanent employee as per condition no. 1 laid thereupon in the appointment letter of the petitioner, and hence, the resolution dated 4th May 2007 is not applicable in his case. 7. Rejoinder-affidavit is also filed by the petitioner. According to him, under the Right to Information Act, information has been received from the Office of Director of Accounts Treasury, Gandhinagar that the benefit of Government Resolution dated 4th May 2007 is already given to {a} Varshaba N. Rathod; and {b} D.M Parakhiya, Sub Accountants and they were reappointed in their original cadre by protecting their seniority. It is further the say of the petitioner that the Finance Department is implementing the Government Resolution dated 4th May 2007 issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial review. In the instant case, this Court need not strike down both these clauses as the circular permits prior sanction of the concerned authority, in the event of any request is made for re-appointment after the person resigns from the post which is permissible as the superior authority may not want any anarchy and would surely insist on streamlining the issue when employee chose to get themselves reappointed. 8.5 The question, therefore, is whether the respondentauthority has committed an error in denying the benefit of the Circular issued by the General Administration Department dated 4th May 2007 while considering the question made by the petitioner to once again join duty as Deputy Mamlatdar. The answer shall have to be in affirmation. 9. Admittedly, the petitioner had been appointed initially on a fixed pay for a period of five years. His first appointment was made on the post of Deputy Mamlatdar, after due selection and he also cleared examination conducted by GPSC for the post of Commercial Tax Inspector. It was since found out within six months that it was not conducive for him to continue as Commercial Tax Officer,he has shown his willingness to return back to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter following the procedure laid down under the Recruitment Rules. There shall be no relaxation in educational or any other qualifications, nor shall there be any relaxation in the recruitment process. All persons being appointed under the scheme would be appointed on a fixed salary for a period of five years. Even the appointment on compassionate basis would be governed and regulated according to this scheme. The period of five years shall not count towards any service benefits. Significantly, the last clause 22 of the said scheme provides that the person being appointed under this scheme for a period of five years on fixed salary, having been already discharged his duties, at the time of consideration of his appointment on regular pay-scale, there would be no need for a fresh appointment on probation. 19. In our opinion, the entire scheme and in particular the last noted clause which is of great significance leaves no manner of doubt about the nature of appointment under the scheme. The scheme itself envisages appointment after full regular selection process without slightest deviation in the qualifications required or in the procedure for selection to be followed. The initial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be below 30 years of age, which would be relaxed for a candidate belonging to Scheduled Castes/Scheduled Tribes by five years. This criteria would be judged at the time of the selection process and not at the time when the candidate, after five years of service on fixed salary basis, is brought within the regular pay-scale. If we accept the contention of the learned AGP that appointment to the post takes place after five years, it would amount to appointing a person to a post under the Government well after he has crossed the maximum age limit prescribed for such a post. 23. The petitioner, as a Government servant, also had a right to apply for the post in question for direct recruitment as long as he fulfills the educational and other qualifications, including the age criteria. The petitioner, admittedly, fulfilled all such criteria and was therefore, considered for the post in question. If he is now asked to surrender all his past service benefits, and is also directed to accept appointment on fixed salary for another period of five years, it would virtually be taking away his avenue of direct selection to the post. Surely, Articles 14 and 16 of the Constitution strike at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, and the judgment has been stayed. We are, therefore, given our reasons quite apart from the question of the validity of the Government Resolution dated 16th February, 2006 itself. 25. In the result, the Government's decision to offer appointment to the petitioner under order dated 28th May, 2014, on the post of Accountant on fixed salary basis is quashed. It is further directed that the petitioner shall be appointed on the said post of Accountant by protecting his current pay in the cadre of Sub Accountant, as provided under Rule 23, read with Rule 13 of the Pay Rules, 2002. The respondents shall not insist on the petitioner giving an undertaking as provided in the prescribed proforma, appended to the order dated 28th May, 2014. It is however, clarified that the petitioner shall not claim any seniority in the post of Accountant for such period of five years, and this period would be treated as appointment on probation, and ultimately, if he successfully completes the period of probation, after five years, his seniority will be judged on the basis of his rank in the select list. 10. The petitioner in the above referred case was appointed on the post of Sub-Accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. And moreover, the Resolution dated 4th May 2007 was already in existence which permits reappointment of a person who chose to join on his original post during the probation period. Admittedly, the petitioner is a Government employee, selected for being appointed to the post of Deputy Mamlatdar by way of a regular procedure as per the prevalent recruitment rules. The petitioner was also selected after due procedure by the State for the post of Commercial Tax Inspector. Both the positions are equivalent in Class III cadre. The Government Resolution dated 4th May 2007 issued by the General Administration Department confers right in favour of regularly selected candidates for appointment after following recruitment process to be re-appointed in the original cadre. The person concerned also has a right to be reappointed in the original cadre with the seniority that he enjoined before joining another post. 13. The Circular dated 21st November 2014 issued by the Revenue Department is at the most an administrative instruction. If the same is contrary to the Government Resolution dated 4th May 2007, the same cannot be allowed to prevail. The said circular clearly provides that once ..... X X X X Extracts X X X X X X X X Extracts X X X X
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