JUDGMENT :

Biren Vaishnav, J.

1. Rule returnable forthwith. Mr. Soaham Joshi learned AGP waives service of notice of Rule on behalf of the respondent State.

2. With the consent of learned advocates for the respective parties, the petitions are taken up for final hearing.

3. By way of these petitions under Article 226 of the Constitution of India, the petitioners who were initially appointed as Revenue Talatis on fixed wage basis and got the benefit of inter district transfer post their period of regular service after five years, seek to challenge the resolutions dated 18.01.2017 and 20.01.2018.

4. The petitioners were appointed as Revenue Talatis in the year 2010 on a fixed pay for a period of five years. For the purpose of considering the issue, chronology of dates of service of petitioner no. 1 are considered. He was appointed on 03.04.2010 for a period of five years. On completion of five years of service, the petitioner was regularized in service vide an order dated 11.04.2016. A request of transfer was made on he being regularized and by an order dated 16.06.2016, the petitioner was transferred from Valsad to range Deesa. The order of transfer would indicate that on his transfer, the incumbent would lose his seniority and an undertaking was given by the petitioner that he had no objection of losing such seniority. In other words, for the purposes of reckoning his seniority since at the relevant time there was no policy of the State for considering the past period of five years of initial appointment for regular benefits, the petitioner in effect lost two years of his service on a regular basis for the purposes of seniority.

5. Subsequent to the orders on which the petitioner accepted the transfer, the State came up with a resolution dated 18.01.2017 through the Finance Department. The resolution provided for a policy of considering the period of five years of the incumbents who were appointed on a fixed pay for the purposes of seniority, promotion, higher pay scale and terminal benefits from their initial date of engagement and not from the date of their regularization as in the case of the petitioner.

6. Mr. Gautam Joshi learned Senior Advocate would emphasize on the language of the resolution to indicate that the resolution was prospective and should therefore be read as such. The General Administration Department by a resolution dated 20.01.2018 has laid down the yardstick for computing seniority in case of such fixed pay employees who were granted the benefit of seniority etc. as per the resolution dated 18.01.2017. The resolution stipulated that those fixed pay employees who were engaged after 18.01.2017 would get the benefits of that initial date of appointment for all purposes whereas the present petitioners who were appointed prior to the resolution would in effect by virtue of his transfer not only lose the two years of their seniority but there will be no regard and the benefit for other purposes even of the past five years. The policy therefore is under challenge.

7. Alternatively, Mr. Joshi would rely on the decision of the Supreme Court in case of State of Maharashtra vs. Uttam Powar, (2008) 2 SCC 646 and submit that the Supreme Court while considering the decision in the case of Scientific Advisor to Raksha Mantri and Another vs. V.M. Joseph, (1998) 5 SCC 305 opined that when person is transferred on his own request his past service has to be counted for the benefits while promotion on higher pay scale.

8. Reliance is also placed on the decision of this Court in the case of M.U. Shah vs. State of Gujarat, 2016 SCC Online Guj. 9932, wherein the Court relying on the decision in case of Uttam Vishnu Pawar (supra) held as under:

“5. Having considered the rival contentions and the judicial pronouncements as above it is more than clear that while on request transfer ex cadre one may lose seniority, the right to higher grade pay scale is required to be considered on altogether a different criteria laid down in the relevant s