KRISHNAKANT MAGANLAL BRAHMBHATT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The short facts of the case are that the order dated 3.1.1996 came to be passed for posting of the petitioner as Sr. Clerk (Accounts) on the basis of the seniority and it was expressly provided in the said order that if the petitioner does not resume the duty at the transferred place, the petitioner would not be entitled to the benefits of resolution dated 16.8.1994. It is an admitted position that the petitioner did not resume duty in pursuance of the transfer order, nor the petitioner challenged the said transfer order and the fact remains that the transfer order operated. As per the petitioner, the competent authority had not issued the transfer order and, therefore, he did not obey the transfer order. It appears that thereafter the petitioner applied for conferring the benefits of higher pay-scale in pursuance of the Government Resolution dated 16.8.1994 and the said request of the petitioner is rejected as per the decision dated 10.3.1997 of the competent authority on the ground that the petitioner did not obey by the conditions of posting as Sr. Clerk (Accounts) and, therefore, he would not be entitled to the benefits of the said benefits of the said Government Resolution. It appears that the petitioner challenged the said order by preferring appeal No.213 of 1997 before the Gujarat Civil Service Tribunal and the Tribunal dismissed the appeal as per the decision dated 24th October, 2001 and thereafter the petitioner has approached this Court by preferring the present petition. Heard Mr.Brahmbhatt, learned Counsel for the petitioner and Mr.Desai, learned AGP for the State Authorities.

(2.) As such the reasons recorded by the Tribunal from paragraph 7 onwards shows that the Tribunal rejected the appeal of the petitioner on the ground that the opportunity was given to the petitioner to get the benefits of the higher pay-scale in pursuance of the Resolution dated 16.8.1994 at the time when the order dated 3.1.1996 came to be passed. However, the petitioner himself did not resume the duty at the transferred place and consequently would not be entitled to the benefits of the Government Resolution dated 16.8.1994. The reasons recorded by the Tribunal further shows that the Tribunal found that if the person is not resuming the duty at the transferred place, which was found by the Tribunal as that of a promotional avenue, and thereafter sticks to the post and claims only higher pay-scale conferring of such benefits, the same would be a mockery and, therefore, the Tribunal has not accepted the appeal of the petitioner.

(3.) Mr.Brahmbhatt, learned Counsel for the petitioner, submitted that the order by which the petitioner was posted as Sr. Clerk (Accounts) cannot be said as promotion avenue, but can be said as a transfer order. He submitted that, therefore, the Tribunal has not properly considered the said aspect.