2016 (1) TMI 871 - HC - Indian Laws

Job posting - The petitioner since was not comfortable on the post of Commercial Tax Inspector, he made a request to the Joint Secretary Services , Revenue Department on 2nd May 2014 to allow him to join back his duties as Deputy Mamlatdar on a plea that socially, physically and mentally, the work of Commercial Tax Inspector was not suitable to him. - it is the say of the respondent that once the resignation is tendered by the employee appointed on contractual basis, he cannot be reappointed without prior approval of the Revenue Department and condition no. 11 provides that once the service of a contractual employee ends, there is no provision to re-appoint him. Admittedly, the petitioner is a Government employee, selected for being appointed to the post of Deputy Mamlatdar by way of a regular procedure as per the prevalent recruitment rules. The petitioner was also selected after due procedure by the State for the post of Commercial Tax Inspector. Both the positions are equivalent in Class III cadre. The Government Resolution dated 4th May 2007 issued by the General Administration Department confers right in favour of regularly selected candidates for appointment after following recruitment process to be re-appointed in the original cadre. The person concerned also has a right to be reappointed in the original cadre with the seniority that he enjoined before joining another post. The Circular dated 21st November 2014 issued by the Revenue Department is at the most an administrative instruction. If the same is contrary to the Government Resolution dated 4th May 2007, the same cannot be allowed to prevail. The said circular clearly provides that once resignation is tendered by a Government employee appointed on contractual basis, he cannot be reappointed without prior approval of the Revenue Department. As discussed above, such policy is understandable as frequent hopping from one cadre to another cadre may cause lot of administrative issues, and therefore, prior approval of the Department would be necessary, if some body is desirous of rejoining the post. However, to say that once the service of the employee are ended who joined on contractual basis, there should be no provision to reappoint them is surely against the essence of Government Resolution dated 4th May 2007 and particularly when the Department itself has permitted such re-appointment in case of some of the employees who had already joined on fixed contractual services. Resultantly, the present writ petition succeeds with consequential reliefs. Respondent no.1 shall forthwith reappoint the petitioner on the post of Deputy Mamlatdar and thereby issue necessary orders of his reappointment on the said post by relieving the petitioner from the post of Commercial Tax Inspector.

Summary

Issues Involved:
1. Validity of conditions no. 3 & 11 of the Circular dated 21st November 2014.
2. Applicability of the Government Resolution dated 4th May 2007.
3. Entitlement of the petitioner to reappointment as Deputy Mamlatdar.
4. Judicial review of administrative instructions conflicting with government resolutions.

Detailed Analysis:

1. Validity of Conditions No. 3 & 11 of the Circular Dated 21st November 2014:

The petitioner challenged the conditions no. 3 & 11 of the Circular dated 21st November 2014, arguing they were discriminatory and violative of constitutional mandates. The court noted that these conditions were incorporated to regulate reappointments of employees who resigned from fixed pay posts without prior approval. Clause 11 emphasized that once an employee's service ends, reappointment is not permissible without prior approval. The court found that these conditions were administrative instructions aimed at preventing administrative disruptions but acknowledged that they could not override the Government Resolution dated 4th May 2007.

2. Applicability of the Government Resolution Dated 4th May 2007:

The petitioner argued that the Government Resolution dated 4th May 2007, which allows reappointment of employees in their original cadre, was ignored by the respondents. The court agreed with the petitioner, stating that the resolution applied to regularly selected candidates, including those appointed on fixed pay for five years. The resolution permits reappointment with seniority protection, which was applicable to the petitioner, despite his initial appointment being on a fixed pay basis.

3. Entitlement of the Petitioner to Reappointment as Deputy Mamlatdar:

The petitioner was initially appointed as Deputy Mamlatdar and later as Commercial Tax Inspector, both on fixed pay for five years. He sought reappointment as Deputy Mamlatdar, citing unsuitability of the new role. The court found that the petitioner was entitled to reappointment under the Government Resolution dated 4th May 2007, as he was a regularly selected candidate. The court noted that similar reappointments were made for other employees, and the petitioner could not be denied reappointment solely because he had not completed five years in either role.

4. Judicial Review of Administrative Instructions Conflicting with Government Resolutions:

The court emphasized that administrative instructions, like the Circular dated 21st November 2014, cannot prevail over government resolutions. The court held that the circular's conditions, which restricted reappointment without prior approval, were contrary to the Government Resolution dated 4th May 2007. The resolution allowed for reappointment during the probation period, and the court found that the petitioner's case fell within this provision. Therefore, the respondent's action of denying reappointment was subject to judicial review and found to be erroneous.

Conclusion:

The court concluded that the petitioner was entitled to reappointment as Deputy Mamlatdar under the Government Resolution dated 4th May 2007. The conditions no. 3 & 11 of the Circular dated 21st November 2014 could not override this resolution. The court directed the respondent to reappoint the petitioner as Deputy Mamlatdar and issue necessary orders, thereby granting the petitioner the relief sought. The writ petition was allowed with no order as to costs.