STATE OF GUJARAT Vs. A.D. DAMOR

JUDGEMENT

(1.) Both these petitions have been clubbed for its hearing by virtue of the order dtd. 23/3/2018 passed by the Coordinate Bench of this Court. As a result of this, the Court has taken up the hearing conjointly by treating Special Civil Application No. 5656 of 2008 as a lead matter for sake of convenience.

(2.) In this lead matter, the respondent was working as a Senior Assistant at Community Health Center, Medhasan and was appointed under the Central Recruitment Scheme on 21/11/1984 under the office of Collectorate of Banaskantha and was placed at the office of Mamlatdar, Diyodar. On account of discontinuance of certain posts of Junior Clerk in the Collectorate of Banaskantha, the respondent was allotted to the office of Collector, Sabarkantha by virtue of order dtd. 13/10/1988 and was required to resume on 14/10/1988. However, on account of certain circumstances, he could not resume on 14/10/1988. The Collector, Sabarkantha had appointed the respondent as a Clerk in the office of the Mamlatdar, Vijaynagar and later on, since he did not resume, was appointed as a Clerk in Community Health Center, Medhasan on 3/12/1988. There, the respondent was required to resume duty on 4/12/1988, but he could not resume the duty and after a lapse of 4 months, he could resume the duty on 11/4/1989, by claiming benefits at par with juniors Shri D.B. Bodat and Shri R.P. Katara who have been granted benefit of continuity of service and were also given promotions accordingly, but, still the respondent was denied the benefit of continuity of service and as such, the respondent appears to have requested before the Tribunal to consider his service as continuous one from 16/4/1999 but was not promoted to the higher post though his juniors were already promoted. The respondent was placed at serial No. 96 in the seniority list prevailed as on 1/1/1998 and Shri B.D. Bodat and Shri R.P. Katara have been placed at serial Nos. 114 and 107 though they were found to be junior to the respondent and still promoted to the post of Office Superintendent and as such, the respondent was deprived of his legitimate claim. On the basis of such assertion, the respondent preferred an appeal before the Tribunal asking deem date available to him at part with his juniors who have already been promoted to the respective posts, as indicated above, and break in service may be condoned. After considering the rival submissions and after hearing at length, learned Tribunal directed the petitioner to consider the claim of deem date, as canvassed by the respondent, whichever is admissible to the respondent right from joining of his service from the year 1984 and it is against this order passed by learned Gujarat Civil Services Tribunal in Appeal No. 111 of 2004 dtd. 19/10/2007, the State authorities have filed present Special Civil Application under Articles 226 and 227 of the Constitution of India.

(3.) So far as the cognate matter, i.e. Special Civil Application No. 18333 of 2017 is concerned, the facts are that respondent No. 1 employee was initially appointed on 22/2/1989 by the Collector, Surendranagar under the Centralized Recruitment Scheme as Junior Clerk in the Revenue Department and he resumed on 28/2/1989. In view of the lack of posts, respondent No. 1 was declared as surplus. Thereafter, by virtue of order dtd. 30/6/1989, Collector, Surendranagar under public interest had posted respondent No. 1 to the Health Department from the Revenue Department and in view of that, he was relieved from the work on 30/6/1989 and joined the services in Health Department without any break on 1/7/1989. In this petition, the respondent resumed the duty without any break and as such, by virtue of the order dtd. 4/10/1991, services rendered from 28/2/1989 to 30/6/1989 was considered as continuous for the benefit of pension and leave encashment as well to consider his service from the date when the respondent joined the service in Health Department, i.e. from 1/7/1989. On 25/4/1996, the respondent employee made a representation to consider his earlier services, i.e. from 28/2/1989 to 30/6/1989 as continuous for calculating seniority towards his service performed under Health Department and by virtue of circular dtd. 23/12/1977 issued by the General Administration Department vide order dtd. 10/5/1996, it was ordered to consider his earlier service as indicated above for the purpose of considering seniority list in the cadre of junior Clerk/Senior Clerk in the Health Department and accordingly, vide order dtd. 1/1/2002, seniority list was published, wherein respondent No. 1 was placed at serial No. 240.