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2016 (1) TMI 871 - GUJARAT HIGH COURT

2016 (1) TMI 871 - GUJARAT HIGH COURT - TMI - Job posting - 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. - it is the say of the respondent that once the resignation is tendered by the employee appointed on .....

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rcial 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.

The Circular dated 21st Nov .....

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adre 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 Resolution dated 4th May 2007 and particularly when the Department itself has permitted such re-appointment in case of some of the employees who had al .....

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HE RESPONDENT : Mr RASHESH RINDANI, AGP ORAL ORDER 1. Brief facts necessary for the purpose of adjudication in the present writ petition preferred under Article 226 of the Constitution are as follow :- 2. The petitioner applied for the post of Deputy Section Officer [Secretariat Department]; Deputy Section Officer [Legislative Assembly]; Deputy Section Officer [GPSC] and Deputy Mamlatdar [Revenue Department] pursuant to an advertisement dated 28th January 2011 issued by the Gujarat Public Servic .....

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per the conditions mentioned in the Government Resolution No. Est/102012/1767/N dated 11th June 2012. 3. The petitioner had also applied for the post of Commercial Tax Inspector [Class III] in response to another advertisement issued by the GPSC wherein also he came to be selected at merit no. 356 and the order came to be issued in favour of the petitioner on 7th December 2013 appointing him as Commercial Tax Inspector [Class III] in the fixed monthly pay of ₹ 10,000/= for five years. It .....

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urs 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 De .....

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dition no. 11 provides that once the service of a contractual employee ends, there is no provision to re-appoint him. 5. Reliance is placed on the decision of this Court rendered in case of Jayeshkumar Mahendrabhai Parmar v. State of Gujarat & Ors. [Special Civil Application No. 10928/2014 :: Decided on 29th September 2014] wherein the Court has held that for those appointed on fixed pay, reference to a contractual employment is wholly de hors the scheme itself. Such contractual appointment .....

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esolution dated 4th May 2007 issued by the General Administration of the State. Therefore, the present writ petition seeking quashment of the Circular dated 21st November 2014; and particularly Conditions No. 3 & 11 with consequential relief of directing the Revenue Department to re-appoint the petitioner on the post of Deputy Mamlatdar on the strength of Government Resolution dated 4th May 2007. 6. On issuance of notice, affidavit-in-reply is filed on behalf of the respondent no. 2 contendi .....

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cepted or in the event of terminating the services, he should not be appointed again. 6.1 Much reliance is placed on the Circular dated 21st November 2014 which according to the respondent restricts re-appointment. The petitioner has resigned from the earlier service and was permitted to join as Tax Department as 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 insta .....

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er. 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 .....

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PSC after following the selection process. He was declared successful in the recruitment of the Commercial Tax Inspector conducted by GPSC on 7th December 2013. He was relieved on his request on 12th December 2013. His request for re-joining at his original post came on 2nd May 2014 ie., less than six months' period. He sent reminders on 22nd July 2014 and 3rd December 2014. His request has been denied only on the aspect that he has not completed five years' of service. 8.1 Therefore, a .....

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appointed on contractual basis and on fixed pay. This has come into being as in case of one of the employees, after he resigned without seeking prior permission of the State Government, was taken back in service which was treated as a major lapse. It is, therefore, made incumbent upon the concerned Officer to seek prior approval of the Revenue Department in case of request of the employee appointed on fixed pay. 8.3 Clause 11 also emphasizes that once the service comes to an end, there is no pr .....

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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 Dep .....

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not conducive for him to continue as Commercial Tax Officer,he has shown his willingness to return back to the Department from where he has resigned, taking recourse to the Circular issued by General Administration Department which permits such re-appointment. It is not even the case of the respondent authority that there are no vacancies available on the post of Deputy Mamlatdar nor also that large number of such requests are coming often disrupting smooth functioning of administration. It is .....

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Commercial Tax Inspector. Thus, the only reason for denying him the benefits of Resolution dated 4th May 2007 is his not being the permanent employee in the department he seeks reappointment. It would be necessary at this stage to take recourse to the decision rendered by this Court in case of Mahendra Parmar v. State of Gujarat & Ors. [Supra], wherein it is observed thus - 18. The Government Resolution dated 16th February, 2006 under which the fixed salary regime is set up, itself envisages .....

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ixed salary basis, it would result into considerable savings for the Government, and the appointees would receive salary in the regular scale after five years, which would maintain their dedication to the work and spirit. The Resolution therefore, provides that the appointments under the Government in Class III and IV posts made through direct selection would be for a period of five years on fixed salary on probation. The terms of the GR further provides that all such appointments would be made .....

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antly, 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 s .....

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rently, the petitioner's performance would already be judged and his suitability for confirmation in service would be examined before he is brought on regular scale. 20. The scheme thus, envisages appointment on a post, with a fixed salary. It is not the case of a contractual appointment on a fixed salary basis. The entire scheme envisages a regular selection process meant for direct recruitment, scrupulous and strict adherence to the educational and other qualifications. It is aimed only at .....

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ntractual employment, is wholly dehors the scheme itself. In our opinion, such contractual appointment is not envisaged in the Government Resolution. It is not part of the scheme framed by the Government and could not have been slipped into the appointment order, which is not backed by any Government decision. The Government decision was to make appointment against a regular post, after regular selection and recruitment process being followed, but only the salary on the regular pay was differed .....

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was undertaken. For example, for direct recruitment to the post of Accountant, a candidate must 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 ta .....

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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 arbitrariness of the Government agencies. No interpretation of the Government scheme, which brings about such an incongruent situation, would be permissible. As a Government servant, the petitioner would be virt .....

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urrender all his past service benefits for direct selection to higher post would be entirely unreasonable, arbitrary and therefore violative of Articles 14 and 16 of the Constitution. It would also be discriminatory. We may recall, the fix salary scheme applies only to Class III and Class IV services. Only in cases of such services this "double jeopardy" of being placed again on fixed salary upon direct recruitment of a candidate who is already holding a Government post would apply. In .....

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y to the extent it is against the said Rules, must yield to the statutory provisions. If Rule 23 applies, the Government policy cannot be pressed in service to deny benefit of pay protection to the Government employee. 24. We are quite alive to the fact that the entire fixed salary regime of the Government envisaged under the said Government Resolution dated 16th February, 2006, has been declared as unconstitutional by this Court in the judgment in the case of Shree Yogkshem Foundation for Human .....

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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 no .....

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ght on the regular pay scale. He came to be appointed on the post of Accountant through direct selection on 28th May 2014 wherein his appointment was made on a fixed monthly salary of ₹ 10,000/= for a period of five years and also subject to his giving an undertaking in the prescribed form. Therefore, the Division Bench quashed the decision of the Government offering appointment to the petitioner on fixed salary basis vide Order dated 28th May 2014 and thereby directed that the petitioner .....

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Inspector, when an order of appointment came on 7th December 2013, he did not resign, but in fact, had sought permission of the authorities to join as Commercial Tax Inspector and thereupon the respondent no. 2 issued an order relieving him from the post of Dy. Mamlatdar. Had he any intention of simply resigning and joining as Commercial Tax Inspector, there was no need for him to seek any permission and mere tendering of his resignation would have been sufficient. 12. It is to be noted that in .....

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signation and the order of relieving the petitioner would tantamount to his having resigned and his joining the Tax Department was his fresh appointment then also, what he has done afterwards is to seek permission of the competent authority to be reappointed in the Revenue Department. 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 G .....

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itment 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 resignation is tendere .....

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