T S PANDYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner's case is that from 20th January 1958, he was appointed as Vaccinator in the Public Health Dept. (on the basis of the selection made for the said post) vide order dated 20th Jan. 1958, he was then promoted as Sanitary Inspector on 23rd January 1959, on which post he joined on 26th January, 1959. He was then promoted as Malariya Inspector and posted as such vide order dated 10th August, 1959 on which post he joined on 22nd August, 1959.

(2.) In the year 1971, notification was issued by the Panchayat and Health Deptt. on 24th November 1971 framing recruitment rules for the post of Laboratory Technician Malaria/Fileria in the Public Health Deptt. in exercise of the powers conferred under Proviso to Art. 309 of the Constitution. According to this scheme of the Rules, appointments on the post of Laboratory Technician could be made by promotion or by direct recruitment of persons who had passed SSC Examination or its equivalent with English who had rendered seven years' continuous service as Malaria Inspector or Malaria Surveillance Inspector or Fileria Inspector and who had successfully undergone Sanitary Inspector's Basic Health Workers Training Course. Even those who had not undergone the said course could be considered on the basis of proved merit and efficiency subject to the condition of passing the said course within three years from the date of promotion. According to Rule 5 of this scheme of the Rules, appointments by direct selection are to be made only if no eligible employee is available for promotion. It is the further case of the petitioner that by an order dated 17th February, 1973, issued by the Director of Health Services, the petitioner was promoted and transferred as Laboratory Technician at Rajkot and in the seniority list of Sanitary/Malariya/Fileria Inspectors, notified on 31.5.70, his name was shown at Sr. No. 171. It appears from the affidavit in reply dated 21st February, 1983, filed in this petition by the Chief Officer in the office of the Director of Health, Medical and Medical Education (Health), Ahmedabad-respondent No. 2 herein, that there were two cadres namely Malaria Cadre and Sanitary Inspector Cadre ("SI Cadre" for short) and by notification dated 1st February, 1978, by virtue of sec. 157 of the Gujarat Panchayats Act, 1961, Malariya Scheme was transferred to the District Panchayat and accordingly, the petitioner was called upon to give option as to whether he wanted to remain in panchayat service or not. The option was given to the petitioner and the petitioner opted for the panchayat service on 19th July, 1980. It is not disputed by the learned AGP Mr. Pujari that the entire cadre of the post or which the petitioner was working in the year 1978 had been allotted to the panchayat cadre in the year 1978 although the options were taken later on in the year 1980. While the petitioner was working in the panchayat cadre as allotted in the year 1978, the petitioner preferred appeal No. 41/80 before the Gujarat Civil Service Appellate Tribunal raising a grievance that one Shri T. R. Sharma who was much junior to the petitioner in the cadre of Sanitary Inspector had been promoted to the post of Para-Medical Assistant in the pay scale of Rs. 425-700 by an order dated 22nd March, 1979 and that in the seniority list of SI Cadre as on 31.5.70, his name was shown at Sr. No, 189 and Shri T. R. Sharma was at Sr. No. 430 as mentioned in the order passed by the Service Tribunal in its order dated 13th March, 1981 in appeal No. 41/80 which also shows that the petitioner had been allocated to the panchayat service as Malariya Laboratory Technician with effect from 1.2.78. The Tribunal found that in this seniority list, the petitioner's name was at Sr. No. 189 and that of one Shri T. R. Sharma was at Sr. No. 430 and there were number of Sanitary Inspectors in between the petitioner and Mr. Sharma but the Tribunal found that the list of SI Cadre as on 31.5.70 was not relevant for the purpose of deciding the claim of the petitioner because he had been sent out of the cadre and was allocated to the panchayat service and that Shri Sharma was Sanitary Inspector in the State Cadre and was allocated to the Panchayat in the same cadre of Sanitary Inspector whereas the petitioner was allocated as Malariya Laboratory Technician and, therefore, the petitioner and Shri T. R. Sharma were in different cadres and on that ground, the petitioner could not claim promotion in the SI Cadre in panchayat till the date of allocation was changed from the post of Malariya Laboratory Technician to the post of SI Cadre. While deciding the appeal, the Tribunal also noted that the Director of Health Services had issued circular in February, 1981 to all the District Development Officers pointing out that though the Cadre of Malariya was transferred to the Panchayat service by the State, it was necessary to give option to the members of the staff working in the Malariya Scheme and without giving them option, they could not be straightway allocated to the panchayat and, therefore, they were treated as State servants posted in the cadre of Malariya Laboratory Technician and, therefore, he could not be given promotion in the SI Cadre in the District Panchayat, Rajkot. The Tribunal further held that even if the Circular dated 2.2.81 issued by the Director of Health Services as referred to above is ignored, the petitioner could not be promoted in the Cadre of SI in panchayat services as he was allocated in the cadre of Malariya Technician and not in the cadre of SI in the panchayat services. Accordingly, the petitioner was not found to be entitled to promotion in the panchayat in the SI Cadre and his appeal was, therefore, dismissed by the appellate Tribunal on 30th March, 1981. In para 8 of the petition, it has been stated by the petitioner that after his promotion to the post of Laboratory Technician, several employees junior to the petitioner in the seniority list dated 31.5.70 had been promoted to the higher post of Treatment Organiser and that the petitioner though senior to them had not been considered for promotion to the said post without any legitimate reason. It has been submitted in para-9 that he made several representations to various authorities but without any success. The petitioner submits that he failed before the Tribunal because the Tribunal did not consider the petitioner as a member of panchayat service and found that the petitioner belongs to the State Cadre. The petitioner's grievance against the promotions accorded to the juniors in the panchayat service was turned down by the Tribunal by observing that he was in the State Cadre and so far as the State Cadre is concerned, he was not given promotion because he had been posted in the Panchayat Cadre and his juniors had been promoted to the next higher post in the pay scale of Rs. 425-700.

(3.) In this matter, rule was granted in March, 1983 after issuing notice and the reply affidavit filed by the respondent is one page affidavit dated 21st February, 1983 in which it has been mentioned that the petitioner himself had opted on 19th July, 1980 for panchayat service but the fact remains undisputed between the parties and it is the common case between the parties that though the petitioner was made to work in the panchayat, in fact, he was never absorbed in the panchayat cadre and he continued in the State Cadre and the judgement of the Tribunal had already attained finality and in view of the finality between the parties, the petitioner has to be treated as if the petitioner throughout continued under the State Cadre in the sense that even if he was made to work in the panchayat, he was never uprooted from be State Cadre and his lien continued in the State Cadre itself and he was entitled to the considered for promotion in the State Cadre according to his seniority and to that extent, his grievance is found to be legitimate. It is a dismal fact that no details have been given by the petitioner as to on which date, his juniors were promoted as Treatment Organiser or Senior Health Inspector in the pay scale of Rs, 425-700 but the allegation as has been made that his juniors were promoted in the higher pay scale has not been disputed by the other side and it is clearly discernible that the Juniors to the petitioner have been promoted to the post in the pay scale of Rs. 425-700 after the petitioner's promotion as Laboratory Technician in the year 1973. In this view of the matter, in case any junior to the petitioner in the seniority list as on 31.5.1970 on which reliance has been placed by both the sides and which is also referred to in the order passed by the Tribunal has been promoted as alleged, the petitioner is also entitled to the pay scale of Rs. 425-700 from the same date from which his next junior was given the pay scale of Rs. 425-700.