The seniority of employees should not be affected by resolutions resulting in loss of seniority, and compliance with specific rules regarding examinations should be considered based on the circumstances of the appointment.

ORDER :

1. Rule returnable forthwith. Mr. Sharma, learned Assistant Government Pleader, waives service of notice of rule on behalf of the respondent – State.

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

3. The prayer in the petition of SCA No.9309/2020 is to quash and set aside the action of the respondent authorities of making the petitioner lose his seniority in the Final Seniority list dated 4.7.2020.

4. In the case 16299 of 2018 and allied matters, this Court vide order dated 8.3.2022 held as under:

“RULE returnable forthwith. Mr.Kurven Desai learned AGP waives service of notice of Rule on behalf of the respondent State.

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

By way of these petitions under Article 226 of the Constitution of India, the petitioners who were initially appointed as Forest Guards 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.

Facts of Special Civil Application No.16299 of 2018 are to be considered for the purposes of this judgment.

All these petitioners were appointed as Van Rakshaks in the years 2007 to 2009 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 11.09.2009 for a period of five years. Before the petitioner completed the period of five years on 03.09.2013, he made a request for transfer which was rejected by the authorities purportedly on the ground that the petitioner was not on a regular establishment and was still on fixed pay basis. On completion of five years of service, the petitioner was regularized in service vide an order dated 11.02.2015. A request of transfer was made on he being regularized and by an order dated 17.06.2015, 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.

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.

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.

Alternatively, Mr.Joshi would rely on the decision of the Su