Service Prior To Regularization To Be Counted For Seniority, Contrary Undertaking Given By Employee No Bar: Gujarat High Court

"The petitioners' undertaking shall not count to their detriment for the purposes of their seniority. The undertaking shall not operate and their seniority shall be counted from the date of their initial appointment post the period of five years in view of the resolutions dated 18.01.2017 and 20.01.2018."

It was of the view that such could not have been the intention of the undertaking when the petitioners filed such undertakings in the year 2014 when they opted for transfer. 

The Petitioners herein were appointed as Van Rakshaks in 2008 on a fixed pay for 5 years. On completion of five years of service, the Petitioner was regularised in service vide an order of March 2013. Subsequent to the request of transfer made by the Petitioner on being regularised, the Petitioner was transferred on the condition that he would lose his seniority.

The Petitioner then signed a no-objection undertaking for this transfer thereby losing one year of service on a regular basis. In 2017, a resolution was passed by the Financial Department for a policy of considering the period of five years of incumbent officers who were appointed on a fixed pay for the purposes of seniority, promotion, higher pay scale and terminal benefits from the initial date of engagement and not from the date of regularisation as in the Petitioner's case.

It was averred that the resolution was prospective in nature and laid down the yardstick for computing seniority and benefits for the employees. Therefore, the resolution stipulated that those fixed pay employees engaged after January 2017 would get benefits from initial date of appointment whereas the Petitioners were appointed prior to the resolution and so would be entitled to lose one year of seniority and there will be no benefits for past five years of service.

Reliance was placed by the Petitioners on State of Maharashtra v. Uttam Powar (2008) 2 SCC 646 and other cases where the Apex Court had opined that when a person is transferred on his own request, his past service has to be counted for benefits while promotion on a higher pay scale.

Noting the precedent, Justice Vaishnav opined that the Petitioners have a much better case considering that they were transferred within the same department on a fixed pay. It was remarked:

"In the case before the Supreme Court and of the Division Bench of this Court, the Court held that if the petitioners were transferred to a new department, they may not get seniority but the past experience would count for the purposes of promotion and higher pay scale etc. In the case on hand where the petitioners are concerned, in fact, they have a better case inasmuch as they were within the same department appointed on a fixed pay.

Merely because by resolutions post their appointment i.e. on 18.01.2017 and 20.01.2018, the benefit of the entire period of five years of fixed pay services is being given to the petitioners, the loss of seniority of one year will cumulatively damage the case of the petitioners in the matters of promotion etc., inasmuch as, by virtue of the resolutions and the appointees post these two resolutions of 2017 and 2018, the petitioners will continue to stagnate because the appointees post these resolutions will steal a march over the petitioners."

Accordingly, the Special Civil Application was allowed.

Case Title: RAMESHBHAI DALSANGBHAI KUNIYA Versus STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 151

Case No.: C/SCA/9530/2019

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