TaxTMI 
TaxTMI 
2016 (1) TMI 871
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....mlatdar in the pay scale of Rs. 9,300-34,500 with Grade Pay of Rs. 4,400 initially on the fixed pay of Rs. 10,000/= per month for five years, as per the conditions mentioned in the Government Resolution No. Est/102012/1767/N dated 11th June 2012. 3. The petitioner had also applied for the post of Commercial Tax Inspector [Class III] in response to another advertisement issued by the GPSC wherein also he came to be selected at merit no. 356 and the order came to be issued in favour of the petitioner on 7th December 2013 appointing him as Commercial Tax Inspector [Class III] in the fixed monthly pay of Rs. 10,000/= for five years. It is his case that under the control of the respondent no. 1-Revenue Department, he was already appointed and had resumed duties on 18th June 2012 by the time, he received an order appointing him as a Commercial Tax Inspector [Class III] dated 7th December 2013. The petitioner made a request to the authorities to allow him to join as Commercial Tax Inspector, and therefore, the respondent no. 2 issued an Order dated 12th December 2013 relieving him from the post of Deputy Mamlatdar after office hours on 12th December 2013 to join as Commercial Tax Inspe....
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....iled on behalf of the respondent no. 2 contending inter alia that the petitioner was relieved by the Office of Collector, Narmada-Rajpipla so that he could be appointed on the post of Commercial Tax Inspector, however, there is no provision for the person who is on the contractual basis, if has resigned to be re-appointed without prior approval of the Revenue Department and the Revenue Department did not respond to the petitioner as per the condition no. 11 of the Circular dated 21st November 2014 which states that once the resignation is accepted or in the event of terminating the services, he should not be appointed again. 6.1 Much reliance is placed on the Circular dated 21st November 2014 which according to the respondent restricts re-appointment. The petitioner has resigned from the earlier service and was permitted to join as Tax Department as Commercial Tax Inspector. It is further the case of the respondent that the case of Mahendra Parmar v. State of Gujarat & Ors. [Supra] differs materially from the facts in the instant case. The resolution dated 4th May 2007 is applicable to the employees who are on permanent basis. The petitioner has been appointed only on fixed cont....
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....This has come into being as in case of one of the employees, after he resigned without seeking prior permission of the State Government, was taken back in service which was treated as a major lapse. It is, therefore, made incumbent upon the concerned Officer to seek prior approval of the Revenue Department in case of request of the employee appointed on fixed pay. 8.3 Clause 11 also emphasizes that once the service comes to an end, there is no provision to re-appoint him in the job. No proposal also shall be made before the Government for the said purpose. 8.4 Clause 12 provides that the guidance should be sought of the State Government, if any issue arises in relation to the resignation of an employee. Even without striking down clauses 3 & 11 of the Circular dated 21st November 2014, the action of the respondent-authority is not immune to the judicial review. In the instant case, this Court need not strike down both these clauses as the circular permits prior sanction of the concerned authority, in the event of any request is made for re-appointment after the person resigns from the post which is permissible as the superior authority may not want any anarchy and would surel....
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....mble to the Resolution itself discusses reasons for formulation of the scheme. It provides that the appointment of the staff on contractual basis has not worked out satisfactorily, and it did not result in any substantial saving of Government fund. On the other hand, it led to demoralization of the employees. If instead, appointments are made for five years on fixed salary basis, it would result into considerable savings for the Government, and the appointees would receive salary in the regular scale after five years, which would maintain their dedication to the work and spirit. The Resolution therefore, provides that the appointments under the Government in Class III and IV posts made through direct selection would be for a period of five years on fixed salary on probation. The terms of the GR further provides that all such appointments would be made only after following the procedure laid down under the Recruitment Rules. There shall be no relaxation in educational or any other qualifications, nor shall there be any relaxation in the recruitment process. All persons being appointed under the scheme would be appointed on a fixed salary for a period of five years. Even the appointm....
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....ould not have been slipped into the appointment order, which is not backed by any Government decision. The Government decision was to make appointment against a regular post, after regular selection and recruitment process being followed, but only the salary on the regular pay was differed for a period of five years, subject to the appointee proving his suitability. Thus seen, the scheme itself envisages appointment to a post. The case of the petitioner is thus covered under Rule 23 of the Pay Rules, and his pay fixation therefore, should be made in terms of Rule 13 of the said Rules. 22. The situation can be looked from a slightly different angle as well. It is undisputed that the respondent examined all qualifications and other criteria as on the date when the selection process was undertaken. For example, for direct recruitment to the post of Accountant, a candidate must be below 30 years of age, which would be relaxed for a candidate belonging to Scheduled Castes/Scheduled Tribes by five years. This criteria would be judged at the time of the selection process and not at the time when the candidate, after five years of service on fixed salary basis, is brought within t....
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....is not to be accepted, it would amount to the Government policy being in conflict with the statutory Rules. Rule 23 of the Pay Rules, 2002 speaks of pay protection in such cases. The Government policy to the extent it is against the said Rules, must yield to the statutory provisions. If Rule 23 applies, the Government policy cannot be pressed in service to deny benefit of pay protection to the Government employee. 24. We are quite alive to the fact that the entire fixed salary regime of the Government envisaged under the said Government Resolution dated 16th February, 2006, has been declared as unconstitutional by this Court in the judgment in the case of Shree Yogkshem Foundation for Human Dignity (supra). Only on the basis of this judgment, the Government stance would be rendered invalid, however, we are conscious that the Government has challenged this judgment before the Supreme Court, and the judgment has been stayed. We are, therefore, given our reasons quite apart from the question of the validity of the Government Resolution dated 16th February, 2006 itself. 25. In the result, the Government's decision to offer appointment to the petitioner under order....
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....ed for him to seek any permission and mere tendering of his resignation would have been sufficient. 12. It is to be noted that in case of one employee, earlier an issue had arisen which necessitated issuance of Circular dated 21st November 2014 which requires seeking of approval of the Revenue Department before a person who resigned earlier from the post when is desirous of reappointment. Here the petitioner can be said to have resigned from the post after seeking permission from the Department to join as Commercial Tax Inspector, and he so did after he was relieved by the competent authority. Even in fact this was his resignation and the order of relieving the petitioner would tantamount to his having resigned and his joining the Tax Department was his fresh appointment then also, what he has done afterwards is to seek permission of the competent authority to be reappointed in the Revenue Department. And moreover, the Resolution dated 4th May 2007 was already in existence which permits reappointment of a person who chose to join on his original post during the probation period. Admittedly, the petitioner is a Government employee, selected for being appointed to the post of Depu....