SCA/7408/1988 of GAJANAND BABURAO DALVI Vs STATE OF GUJARAT on 19 December 1995

1. Whether Reporters of Local Papers may be allowed to see thejudgements?

2. To be referred to the Reporter or not?

3. Whether Their Lordships wish to see the fair copy of thejudgement?

4. Whether this case involves a substantial question of law asto the interpretation of the Constitution of India, 1950 of anyOrder made thereunder?

5. Whether it is to be circulated to the Civil Judge?

GAJANAND BABURAO DALVI vs STATE OF GUJARAT

Appearance: MR PB MAJMUDAR for Petitioner Ms.S.K.Mandavia for Respondent No. 1 SERVED for Respondent No. 2, 3

Coram : MR.JUSTICE S.K.KESHOTE

ORAL JUDGEMENT

The petitioner who is holding a class-iv post in the office of the Director of Health & Medical Services(Medical)approached this Court by way of this writ petition under article226 of the Constitution of India. The petitioner has prayed inthis writ petition that the respondents be directed to give tothe petitioner the benefits of seniority on his transfer to SuratIt has been further prayed that the order of his transfer toSurat without protection of his seniority be quashed and setaside. Certain other prayers have also been made which areconsequential to the first two prayers.

2. The facts relevant to the filing of the present petitionare as under:

That the petitioner was appointed as chowkidar in theB.J.Medical College, Ahmedabad in the year 1957. Thereafter thepetitioner was transferred from time to time at different places.In the year 1968 the petitioner was transferred from ESIhospital, Ahmedabad to Medical College, Surat. Due to hispersonal family difficulties and circumstances the petitionermade a request to Government in the year 1982 to transfer himfrom Surat to Ahmedabad. The petitioner has given out that if heis to be transferred at his own request to Ahmedabad then he hasto sacrifice his entire seniority in the service. The petitionerwas in a difficult situation and he has come to Ahmedabad even atthe cost of sacrificing the seniority. On his posting atAhmedabad accordingly his request was accepted and he was postedat Ahmedabad in the year 1982 at the Civil Hospital. Thepetitioner stated that when he was transferred from Surat toAhmedabad the petitioner was working on the post of SeniorWatchman which is a post carrying higher pay scale than the postof watchman. He was the senior most watchman at Surat at therelevant time. What he has further contended that on takingofhis seniority onthe basis of his original appointment by now he could have beenpromoted to the post of Naik in case he would not have come toAhmedabad.

3. In the year 1988 the Government had taken a decision to terminate all the posts of chowkidars in the Civil Hospitatl,Ahmedabad as the security work was decided to be given to privateagencies. As a consequence of this decision vide order dt.20.5.88 all the chowkidars who have been working at the CivilHospital, Ahmedabad were ordered to be transferred to variousplaces In the aforesaid list, the petitioner's name stands atSr.No.22 and he was ordered to be transferred to SSG Hospital,Baroda. Thereafter, vide order dt. 30.7.88 certain changes weremade in the earlier order referred to above and the petitionerwas ordered to be sent to the Civil Hospital, Surat as chowkidarinstead of SSG Hospital, Baroda. Copy of this order has beenproduced at Annexure.D to the petition. While issuing Rule in

Conclusion

this petition on 26.12.1988, no interim relief was granted. Noreply has been filed by the respondents to the writ petition tillnow. Mr. P.B.Majmudar learned counsel appearing for thepetitioner argued that as far as the order of transfer of thepetitioner to Surat is concerned, it may not be interferred bythis court but the petitioner cannot be deprived of hisseniority. Mr. Majmudar contended that the petitioner has givenup his claim of seniority as he requested for his transfer toAhmedabad. But now for administrative reasons, the petitionerhas been sent back to Surat, he is entitled for the restitutionof his original seniority there and other consequential benefits.Mr. Majmudar further contended that by treating the petitioneras an appointee of the year 1957, he should be given all thebenefits of promotion . It has lastly been contended by thelearned counsel for the petitioner that in case the petitioner'sclaim for his original seniority is not accepted, then thepetitioner will be absorbed elsewhere at Ahmedabad rather thansending him to Surat. On the other hand the learned counsel forthe respondent no.1 contended that once the petitionervoluntarily given up his seniority to take the benefit of histransfer from Surat , then he gives up his seniority once forall. In the case of the transfer of the petitioner onadministrative exigency, it has arisen at Ahmedabad he has beensent back to Surat and therefore, he cannot be given seniorityabove the persons who are already there. It is the petitioner'sown voluntary action and not any action of the respondent bywhich he has been deprived of the seniority. So far as theabsorption of the petitioner at Ahmedabad is concerned, thelearned counsel for the respondent no.1 submits that thepetitioner has no right much less any legal right of absorptionat Ahmedabad. The petitioner's services are transferable and assuch the respondents were within their competence to transfer thepetitioner. I have given anxious thought to the rivalcontentions of the learned counsel for the parties. So far asthe claim of the petitioner of his absorption at Ahmedabaditself, I do not find any merits therein. The petitioner'sservices are transferable and once the respondents have taken adecision to transfer all the chokidars working at the CivilHospital, Ahmedabad to other places and to give the security workto private agency and admittedly the services of the petitionerare transferable no wrong much less any illegality has beencommitted by the respondent in transferring him to Surat. Thepetitioner has no legal right of his absorption elsewhereatAhmedabad as well as to continue at Ahmedabad. It is not asolitary case of the petitioner but all the chokidars have beentransferred and in view of this fact it is not a case where theposts have been abolished and work is not available in thedepartment to be given to the petitioner. The question ofabsorption may arise in the case of surplus staff in thedepartment and not otherwise. May be the respondents decided totake out all the chokidars from the civil hsopital, Ahmedabad but if is not a case of the petitioner becoming a surplus employee.The petitioner has been ordered to be adjusted in the departmentitself though at different places. So the grievance made in thisrespect is not tenable.

4. So far as the other grievance of the petitioner that therespondents be directed to restore him his original seniority, Ifind sufficient merits therein. The petitioner has sacrificedhis seniority as he wanted to come to Ahmedabad. It was his ownrequest transfer and at that time it was understandable that hewas to be put at the bottom of the seniority list. But transferfrom Ahmedabad to Surat is not made at his own request. It isa transfer which was made on administrative reasons. Thepetitioner has been sent back to Surat by the respondents fortheir own administrative reasons, certainly the petitioner canlegitimately claim for restoration of his seniority and all otherbenefits. The petitioner is a low paid employee and he cannot beput to double loss. The benefit which has been given to himconditionally has been taken away by the respondent for their ownreasons. Once that benefit has been taken away I do not find anyjustification in the contention of the learned counsel for therespondent that the condition subject to which benefit was givento the petitioner is still has to be insisted upon. This ishighly arbitrary and unjustified. The respondents cannot haveboth head and tail. When they have decided to transfer thepetitioner back to Surat for their own administrative reasons oradministrative exigencies the petitioner became entitled for therestoration of his original seniority and all consequentialbenefits Though the transfer order of the petitioner is held tobe valid, it is directed that the petitioner shall be entitled toseniority in the cadre concerned on the basis of his initialappointment with all consequential benefit i.e. in case anyperson junior to him on determining the seniority inter se,derives benefits, during the interregnum period, he shall also beentitled to those benefits.

5. In the result, the petition is partly allowed. Rule ismade absolute in the aforesaid terms. No order as to costs.

for correction pl.see original