Past Service Of Transferred Employees To Be Included For Assessing Promotions, Other Benefits: Gujarat High Court
In a recent order, the Gujarat High Court has affirmed that when a person is transferred on his own request, his past service is counted while granting promotion or higher pay scale, particularly when the same department is involved. Thus, Justice Biren Vaishnav allowed the petition of workmen who were challenging a resolution of 2017 passed by the Finance Department stating that...
In a recent order, the Gujarat High Court has affirmed that when a person is transferred on his own request, his past service is counted while granting promotion or higher pay scale, particularly when the same department is involved.
Thus, Justice Biren Vaishnav allowed the petition of workmen who were challenging a resolution of 2017 passed by the Finance Department stating that incumbents who had worked for five years would be considered for seniority, promotion, higher pay and terminal benefits from the initial date of engagement but not from the date of regularisation as was the case of the Petitioner. The bench reiterated:
"In the case before the Supreme Court and of the Division Bench of this Court, the Court held that if the petitioners were transferred to a new department, they may not get seniority but the past experience would count for the purposes of promotion and higher pay scale etc."
It was observed that the Petitioners were initially appointed as revenue Talatis on a fixed wage basis and later got the benefit of an inter-district transfer post their period of regular service of 5 years. The order of transfer indicated that the incumbent would lose seniority and an undertaking to the same effect was signed by the Petitioner. Due to this undertaking, the Petitioner effectively lose two years of his service on a regular basis for the purpose of seniority.
In the instant case, the Petitioner challenged the notice of 2017 with the contention that all employees would get benefits of the initial date of appointment for all purposes but the Petitioners who were appointed prior to the resolution, due to the transfer, would lose 2 years of seniority. Further, their past service of 5 years would also not be taken into account for any purpose. Reliance was placed on State of Maharashtra v. Uttam Powar, to aver that when a person is transferred on his own request, his past service has to be taken into account for promotion.
Relying on Uttam Pawar, the Bench observed:
"Therefore, in view of the consistent approach of this court, it is no more res integra that the incumbent on transfer to the new department may not get the seniority but his experience of the past service rendered will be counted for the purpose of other benefits like promotion or for the higher pay scale as per the Scheme of the Government."
It was further opined that the Petitioners had a much better case than the workmen in Uttam Pawar since they had a transfer within the department on a fixed pay.
Hence it was held that the loss of two years would cumulatively damage the case of the Petitioners in matters of promotion and they will continue to stagnate because other appointees post these resolutions would 'steal a march' over the Petitioners. This could not have been the intention of the undertaking, per the Bench.
Hence, the undertaking was deemed inoperative and seniority was held to be counted from the date of initial appointment post five years.
Case No.: C/SCA/8463/2022
Case Title: MANISHKUMAR RAMESHCHANDRA PAREKH v/s STATE OF GUJARAT
Citation: 2022 LiveLaw (Guj) 354
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