SHASHIKANT KANJI; RACHANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Since common point is involved in both the petitions, both are hereby disposed of by this common judgement and order. So far as Special Civil Application No.949 of 1987 is concerned, the same is filed by the concerned employee - Shashikant Kanji Rachani challenging the order passed by the Gujarat Civil Services Tribunal dated 15th October, 1986 passed in Appeal No.434 of 1985 by which the Tribunal has allowed the appeal filed by the respondent no.5 herein. So far as Special Civil Application No.1035 of 1987 is concerned, the same is filed by the Superintending Engineer, Public Health Circle, Gujarat Water Supply and Sewerage Board, Ahmedabad, challenging the said order of the Tribunal in the aforesaid appeal. Respondent no.5 approached the Service Tribunal on the ground that in view of Rule 13(i) of the Training and Examination Rules, he is senior to the present petitioner. The case of the respondent no.5 before the Tribunal was that he and the present petitioner have passed the prescribed examination on 16th November, 1977 but since he has secured higher percentage of marks as compared to the present petitioner, he was required to be treated as senior. The respondent no.5 accordingly preferred an appeal before the Tribunal, with a prayer that he be declared as senior to the present petitioner for the purpose of promotion to the post of senior clerk and consequently for a further promotion to the post of head-clerk. The Tribunal has narrated the facts in paragraph 4 of the judgement and as per the same, the respondent no.5 was appointed as work-charged clerk on 10.10.1973 while the present petitioner was appointed as work-charged clerk on 1.4.1973. It is accordingly not in dispute that the present petitioner was appointed earlier in point of time as compared to respondent no.5 so far as the post of work-charged clerk is concerned. Subsequently, the petitioner as well as respondent no.5 appeared at the same time in the examination, which is prescribed for the purpose of appointment to the post of clerk on temporary establishment from the work-charged establishment. It is the say of the respondent no.5 that since he had secured higher percentage of marks as compared to the present petitioner, he was required to be shown senior to the petitioner. According to respondent no.5, he was placed at serial no.26 in the list of successful candidates while the petitioner was placed at serial no.43. As per rule 11, the clerks of work-charged establishment are not eligible for appointment to the post of clerks on temporary establishment unless they pass the post training examination and have put in 5 years' service. So far as the present petitioner is concerned, at the relevant time, he had completed 5 years of service ahead of respondent no.5 as he was appointed earlier in point of time as a clerk in the work-charged establishment. Since the Department has considered the petitioner as senior to respondent no.5, ultimately, by an order dated 13.12.1984, the petitioner was posted as Head Clerk. Being aggrieved by the aforesaid order, by which the petitioner was posted as Head Clerk, respondent no.5 approached the Tribunal by way of Appeal, as, according to the respondent no.5, he was required to be shown as senior to the present petitioner in view of Rule 13 of the PWD Resolution dated 30.1.1972 (the Training and Examination Rules). The Tribunal decided the question about inter se seniority between the petitioner and respondent no.5. The Tribunal came to the conclusion that the respondent no.5 (appellant before the Tribunal) had passed the examination by obtaining higher percentage of marks as compared to the present petitioner and as both of them, i.e. respondent no.5 and the petitioner, have passed the examination on the same day, the respondent no.5 was required to be treated as senior to the petitioner as per Rule 13(i). The Tribunal accordingly allowed the said appeal. The Tribunal also came to the conclusion that respondent no.5 herein is required to be promoted to the post of Deputy Accountant in preference to the present petitioner. The Tribunal also granted consequential reliefs to respondent no.5 regarding deemed date of promotion to the post of head clerk. The aforesaid order of the Tribunal is under challenge at the instance of the petitioner-employee as well as at the instance of the State Government and accordingly two Special Civil Applications are filed before this Court challenging the said order of the Tribunal.

(2.) The question which is required to be decided in both these Special Civil Applications is whether the view of the Tribunal is correct in connection with fixing of inter-se seniority between the petitioner and the respondent no.5. The Tribunal has mainly relied upon Rule 13(i) of Training and Examination Rules, 1982. It is required to be noted that the seniority of Class-III employees, i.e. persons to be taken up on temporary establishment from the work-charged establishment is provided in sub-rule (i) of Rule 13 of the said Rules. The relevant rule reads as under:-

(3.) At this stage reference also is required to be made to Rule 11, which reads as under:-