Eligibility for promotion and higher grade scales must include all prior service, irrespective of department transfers, highlighting the unconstitutionality of arbitrary restrictions on seniority and service recognition.

JUDGMENT :

Vaibhavi D. Nanavati, J.

1. The petitioners herein came to be appointed in the Irrigation department as Clerk-cum-Typist in the year 1980 upon undergoing the regular selection mode. On 29.12.1998, the petitioners were rendered surplus and transferred to the Sales Tax Department afresh. The petitioners herein are constrained to approach this Court under Article 226 of the Constitution of India praying for reliefs such as promotion, higher grade in lieu of promotion considering their original post in the original department and has prayed for the following reliefs:

“(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ directing the respondents to grant benefits to the petitioners of further promotion to which they are even otherwise entitled or in lieu of the said promotion directing the respondents to consider their case for higher grade as per the Government Resolution dated 16-8-94 ignoring the Item No.3(15) of the said resolution.

(AA) YOUR LORDSHIP be pleased to hold and declare that order dated 29-12-1998, rendering petitioners surplus and giving them fresh appointment in Sales Tax department is bad in law, discriminatory contrary to the government resolutions in force at relevant point of time and consequent upon such declaration, quash and set aside order dated 29-12-98 qua treating petitioners as declared surplus and appointed afresh in Sales Tax department.

(AAA) YOUR LORDSHIP be pleased to issue a writ of mandamus or any other writ in nature of writ mandamus or any other writ, directing the respondents to treat petitioners on deputation as envisaged in Government Resolutions dated 9th May, 1989 and 25th November, 1994, and consequent thereupon direct the respondents to pay the benefits of promotion or higher grade in lue of promotion as was admissible to them with all consequential benefits Alternatively.

(AAAA) YOUR LORDSHIP be pleased to issue writ of mandamus or any other appropriate writ or direction to Respondent No.1 for giving benefit to the petitioners of Government Resolutions dated 20th February, 2004 and 24th February, 2005 at Annexure - “K” and “L” to the Memo of Special Civil Application.

(AAAAA) Alternatively, YOUR LORDSHIP be pleased to direct Respondent No.2 to treat the service which petitioners have rendered in respondent no.1 department as continuous without break and consequent thereupon direct respondents to pay the petitioners second and third higher pay scales as admissible to them.

(B) YOUR LORDSHIPS may be pleased to hold and declare that the Item No.3(15) of the Government resolution dated 16-8-94 is bad, illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.

(C) YOUR LORDSHIPS may be pleased to direct the respondents to continue the petitioners lien on their Original Posts in their Original Department and given them further promotion to which they are entitled on the ground of that their immediate Junior is promoted.

(D) YOUR LORDSHIPS may be pleased to pass any other just and proper relief as may be deemed fit in favour of the petitioner.”

2. Heard Mr. S.P. Hasurkar, learned advocate appearing for the petitioners and Ms. Nidhi Vyas, learned AGP appearing for the respondent – State.

3. Mr. S.P. Hasurkar, learned advocate appearing for the petitioners, submitted that the petitioners ought not to have been rendered surplus and sent to the Sales Tax Department by way of fresh appointment. It is submitted that in view of the Government Circular dated 25.11.1994, ought to have treated the petitioners to be on deputation without deputation allowance and ought not to have permanently transferred the petitioners to the respondent No.2. It is