DHIRAJLAL SUNDARJI THAKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this petition under Art. 226 of the Constitution of India the petitioner has prayed for fixing deemed date of 30/12/1968 for the purpose of fixing his seniority in the cadre of Head Clerk. He has further prayed for acceptance of his option for re-allocation to the State Service in the cadre of Head Clerk in the Education Department of the State Service and for consequential relief by directing promotion to the post of Class-II in the Education Department of the State Service pursuant to the creation of post by the Government of Gujarat vide Government Resolution dated 22/07/1981.

(2.) It is the case of the petitioner that on 13/01/1955 he was appointed in the Education Department of the then State of Saurashtra and by way of ordinance his services were allocated to the District School Board. By virtue of the order dated 1/08/1957 he was confirmed as Junior Clerk in the District Education Board and since then till upto 1/04/1963 he was serving as such in District Education Board which is known as District School Board. With effect from 1/04/1963 the State of Gujarat established Panchayat Rajya and by virtue of Sec. 155 of the Gujarat Panchayats Act, 1961 the District School Boards which were governed prior to that date were dissolved and the functions thereof were transferred to Taluka and District Panchayats. Consequently in exercise of the powers conferred on the Authority by virtue of Sec. 206(1 )(2) the petitioner's services came to be allocated as per order dated 3 1/03/1963 (Annexure 'A') to the District Panchayat, Junagadh. The petitioner has referred to a Notification dated 5/12/1964 which will he dealt with at an appropriate place hereafter. It is the case of the petitioner that the petitioner appeared and passed required Departmental examination provided for Accountant and the Supervisors. According to his say he was promoted to the post of Accountant equivalent to the post of Head Clerk on 1/02/1969 with effect from 30/12/1968. It is his further case that he was promoted to the post of Office Superintendent/Head Clerk on 28/07/1976. Accordingly his seniority came to be recognised in Education Department (it should be education branch of Panchayat Service). He has accordingly been working as Head Clerk/ Office Superintendent in the District Panchayat. According to the petitioner somewhere in the year 1978 the State of Gujarat issued an Ordinance inviting the option from the allocated employees and petitioner submitted and opted for the State Service. This he did by a forwarding letter dated 1 7/01/1979. It is further case of the petitioner that in the year 1980 another Ordinance was issued by the State of Gujarat and Sec. 206 was amended by the said Ordinance and again options were given to the employees who were allocated to the Panchayat services under Sec. 206 of the Gujarat Panchayats Act. The grievance of the petitioner is therefore that the petitioner's option ought to have been accepted by the respondents, but has not been so accepted till today. It is, therefore, the case of the petitioner that since the petitioner opted for State Service there is no Authority whatsoever in the respondents to deny the petitioner's claim for re-allocation to the State Service where there is a further promotional avenue in the Education Department of the State Service (as distinguished from the Education Branch of the Panchayat Service) from the post of Head Clerk to the post of Office Superintendent is a Class-11 Gazetted Post. Reference, in this connection, is made to Annexure 'E' being the Gujarat Panchayat Services (Promotion to the Cadre in the State Service) Rules, 1972.

(3.) In reply the facts are more clarified. Accordingly, when the Panchayat came into existence from 1/04/1963 the petitioner was working as Junior Clerk at Ranavav in the District School Board. Upon formation of the panchayat with effect from 1/04/1963 the petitioner was allocated to Junagadh District Panchayat as Junior Clerk. He passed necessary examination for the post of Clerk in October, 1967. According to the respondents the petitioner was a temporary servant in the School Board and came to be confirmed upon his passing the aforesaid examination in October, 1967 in the Panchayat Service. Reference is made to Sec. 155 of the Gujarat Panchayats Act, 1961 and other relevant provisions. It is the say of the respondents that State Government did not invite any option from the Panchayat Servants for their absorption as the State servants. According to the Circular dated 25/02/1980 options were given under Secs. 157 and 158 of the said Act. The petitioner having been allocated under Sec. 155 of the said Act he was not entitled to any option. The petitioner was appointed in Accountant cadre on 1/02/1969 in the Panchayat Service and his seniority was fixed in that cadre, he was therefore, not entitled to get any promotion on the administrative side. It was submitted that by mistake the petitioner was placed as Office Superintendent. The objections were raised in that respect and the D.D.O. Junagadh heard the objections and cancelled the above post of Office Superintendent and decided to put the petitioner again on his original post. The petitioner filed one Suit in the Junagadh Court and obtained stay against the implementation of the aforesaid order of the D.D.O. Consequently the petitioner was not put to his original post of Accountant and he is still continued as Head Clerk. In reply to the case of Mr. Bathia set up in para 27 of the petition it has been asserted that Mr. Bathia was a confirmed Government Servant and was allocated to the Panchayat under Sec. 157 of the Panchayat Act and therefore the petitioner's case could not be compared with the case of Mr. Bathia. This petition is, therefore, sought to be dismissed.