Bombay High Court
Joaquin I.M. Dias vs R.S. Ravonkar And Others on 17 October, 1989
Equivalent citations: (1991)IILLJ432BOM
JUDGMENT H.H. Kantharia, J.
1. The petitioner joined the services as a Clerk on December 18, 1963 with Mormugoa Port Trust (hereinafter referred to as "the third respondent") whose Chairman is the second respondent. Thereafter, he was promoted to the post of Assistant Cashier on July 28, 1976. From August 1978 he was appointed as Cashier on ad hoc basis and then promoted to the said post on regular basis. Ultimately by an order dated 28th April, 1986 he was promoted to the post of Chief Cashier.
2. According to the petitioner in the hierarchy of the services in the Accounts Department of the third respondent, Assistant Cashier-III (in the grade of Rs. 800-1014-EB-1484) is the post from which the next promotional post is that of Cashier/Additional Cashier (in the grade of Rs. 880-982-EB-1542) from which post a promotion to the post of Chief Cashier could be had (in the grade of Rs. 965-1229-EB-1679), And the last promotional post is that of Assistant Accounts Officer (cash) in the grade of Rs. 980-1930 from the post of Chief Cashier. In other words, the petitioner contended that Assistant Accounts Officer (cash) could be promoted from the post of Chief Cashier alone.
3. However, his grievance is that the original recruitment rules (Exh.'C') in the Accounts Department of the third respondent were amended on March 17, 1986 (Exh. 'D') whereby the promotion to the post of Assistant Accounts Officer (cash) was mad available from the post of Chief Cashier/Cashier/Additional Cashier which would mean that unequals are treated as equals and that is how the amended rules of March 17, 1986 are bad in law, being arbitrary and discriminatory offending the provisions of Articles 14 and 16 of the Constitution. The petitioner further felt aggrieved that instead of following the original recruitment rules where by if promotion to the post of Assistant Accounts Officer (cash) was not possible the said post could have been filled up by transfer or deputation, with an ulterior motive to favour the first respondent, amended the recruitment rules which would benefit the first respondent alone as he was the only graduate in the department and that is so clear as, according to the petitioner, the post of Assistant Accounts Officer (cash) which was lying vacant from April 1, 1985 was not filled up and was filled up later by promoting the first respondent after amending the original recruitment rules. His further grievance is that by this method of favouritism the first respondent who was junior to him is now made his superior officer. He accordingly prayed to quash and set aside the amended recruitment rules (Exh. 'D') to the extent that they provided promotion by clubbing the posts of Cashier and Additional Cashier with that of Chief Cashier and the promotion of the first respondent.
4. The petition has been resisted by the first respondent on the ground that he and the petitioner were originally appointed as clerks on the same day. Thereafter, they were promoted and appointed in the cash section once again on the same day on July 28, 1976 and, therefore, he was not junior to the petitioner and there was nothing wrong if he was preferred to the petitioner, was not. The second and third respondents resisted the petition on the grounds that the original recruitment rules were amended as it was felt desirable that the eligibility criterion be enlarged without, in any manner, affecting the qualifications and experience for the post in question. This was done, it was further contended by the second and third respondents, to enable the appointing authority to have larger zone of consideration without, in any manner, relaxing the qualifications required for the post and that by amendment to the recruitment rules no prejudice could be said to be caused to the petitioner as he was not the Chief Cashier on the day when rules were amended on March 17, 1986 as he became Chief Cashier only on June 14, 1986 Further contentions raised by the second and third respondents are that the petitioner cannot maintain this petition because even under the original recruitment rules, as also under the amended recruitment rules, he could have never been considered for promotion to the post of Assistant Accounts Officer as he was not a graduate with ten years or without being graduate with twenty years of experience in the cash section. They denied the allegations made against them that the recruitment rules were amended in order to favour the first respondent.
5. Now, the first contention raised by Mr. Rebello in support of this petition is that the post of Chief Cashier, Cashier and Additional Cashier could not be clubbed together for promotion to the post of Assistant Accounts Officer. The submission of the Learned Counsel is that the Additional Cashier and Cashier are the posts inferior to that of the post of Chief Cashier inasmuch as a person could be promoted as Chief Cashier only from the post of Cashier and/or Additional Cashier are also different from those of Chief Cashier, being less. The emoluments which Chief Cashier gets are higher than what Cashier or Additional Cashier gets. In other words the point that the Learned Counsel makes is that Additional Cashier or Cashier who are unequals to Chief Cashier could not have been clubbed together by the amended recruitment rules.
6. We find sufficient substance in the argument of Mr. Rebello because the well settled position in law is that unequals cannot be treated as equals and equals cannot be treated as unequals. That is to say, equals and unequals cannot be clubbed together for the purpose of promotion from one post to another. The principle of equality enshrined in and guaranteed by Article 14 of the Constitution mandates that all those who are subjected to any legislative or executive action should be treated alike under similar circumstances. Equals and have to be treated equally unequals should not be treated equally Article 14 thus strikes at the capricious nature of the legislative or executive action because an arbitrary action necessarily negatives equality.
7. In the case of Bireshwar Chatterjee and others v. State of West Bengal and others 1984 Lab I.C. 979 a Learned Single Judge of the Calcutta High Court, while analysing Rule 5 of the West Bengal Fire Services Rules had held that Firemen were to work and report to the Leader inasmuch as the Firemen were jointly and severely responsible to the Leaders for their work and the nature of the work of the Firemen indicated that they did not have the same work of Leaders and under such circumstance categorising them in the same level amounted to treating unequals as equals and hence sub-rule 5 of the West Bengal Fire Services Rules which enabled the Firemen to the promoted to the post of Sub-Officer was unfair and contrary to the tenets of the Constitution. Mr. Nadkarni, Learned Advocate-General, who represented respondents Nos. 2 and 3, in the regard brought to our notice a judgment by a Division Bench of the same Court in State of West Bengal and Others v. Subrata Majumdar and another, 1988(1) SLR 280 wherein a different view was taken as under :
"We are not prepared to accept as correct the legal proposition that it would be violative of Article 14 of the constitution to provide for promotion to a post from more than one category or cadre of posts. No question of treating as equal the unequals would arise in the event. A recruitment to a promotional post may be lawfully effected from more than one classes of feeder posts. Recruitment go Government services are often made partly by direct appointment and partly by promotion from among the existing employees. It is not necessary those different categories or cadres of feeder posts must always have same scale of pay."
This Judgment of the Division Bench of the Calcutta High Court can be distinguished on facts as there the Learned Judges were dealing with clubbing of the different categories or cadres of feeders to the promotional posts whereas in our case Cashier and Additional Cashier and Chief Cashier are from the same cadre and Additional Cashier and Cashier who are unequals to the post of Chief Cashier who are unequals to the post of Chief Cashier could not be treated as equals.
8. In C. C. Padmanabhan v. Director of Public Instruction, it was held by the Supreme Court that the post of Assistant Education Officer (A.E.O.) lies in a category and carries a grade higher than those of the post of High School Assistant (H.S.A) and was, therefore, a post of promotion vis-a-vis the other so that the two could not be considered as interchangeable, especially because their was no rule, direction or instruction laying down expressly or by necessary implication that they are equivalent to each other. While coming to such a conclusion the Supreme Court considered two important factors; firstly, that the post of A.E.O. carried a special pay of Rs. 50/- per month and, therefore, ensured for its incumbents higher emoluments than were available to an H.S.A. and secondly; that the special pay was counted towards pension. Accordingly, the post of an A.E.O. carried with it not only benefits enjoyable by an incumbent so long as he held the post but also such as were available to him after retirement. The Supreme Court further held that the substantial improvements in the benefits which an H.S.A. thus enjoyed after his posting as an A.E.O. constituted a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. and vice versa so that mere caprice did not deprive an A.E.O. of the benefits enjoyed by him. In the result, the Supreme Court held that the direction contained in the latter dated 19th May, 1977 was wholly arbitrary and not based on any principle and was, therefore, violative of Article 14.
9. In All India Station Master's and Assistant Station Master' Association, Delhi and others v. General Manager, Central Railway and others, it was held that the equality of opportunity in matters of promotion must mean equality as between members of the same class of employees and not equality between members of separate, independent classes.
10. In Govind Dattatray Kelkar and others v. Chief Controller of Imports and Exports and others, it was held (1967-I-LLJ-691 at 695) :
"The relevant law on the subject is well-settled and does not require further elucidation. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be reasonable classification of the employees for the purpose of appointment or promotion. The concept of equality in the matter of promotion can be predicated only when the promotees are drawn from the same source."
11. In Mohd. Usman and others v. The State of Andhra Pradesh (1971-I-LLJ-534 at 536) it has held :
"The proposition of law that the doctrine of equality is attracted not only when equals are treated as unequals but also when unequals are treated as equals and that Article 14 is offended both by finding difference when there is none and by making no difference when there is one, is unexceptionable. But the rule of equality is intended to advance justice by avoiding discrimination."
12. The next contention raised by Mr. Rebello is that before the recruitment rules were amended on 17th March, 1986 the petitioner was the only person who could have been considered, he being the Chief Cashier, but the recruitment rules were amended to the advantage of the first respondent alone as he was the only graduate in the accounts section of the third respondent and he alone and none else could be benefited by the amended rules. Further submission of the Learned Counsel is that in the past also allegations were made by the petitioner that the first respondent had been favoured for which he had to make representation which was considered and justice was done to him. Mr. Rebello urged that the petitioner rose to the position of the Chief Cashier by way of promotions although he was only a matriculate and there was no sudden need to amend the recruitment rules to bring in an element of graduate of fill up the post of Assistant Accounts Officer which, according to him, was not only arbitrary but also discriminatory and cannot be sustained in law.
13. We once again find force in the arguments of Mr. Rebello because the record shows that in the past the first respondent who was junior to the petitioner was treated as his senior for which the petitioner had to made representation and his grievance was redressed by giving a feeble and seemingly afterthought explanation that there was a mistake. Whether there was a genuine mistake or not on the part of the officers of third respondent, the fact remains that but for his representation injustice would have been done to the petitioner in the matter of his seniority. But that apart, it should be borne in mind that the entire cadre in the Accounts Department of the third respondent was based on promotions. Thus, a clerk could be promoted as a senior clerk who could be promoted as Accountant/Selection grade clerk who could further get a promotion to the post of Cashier or Additional Cashier from among whom alone a promotion could be made to the post of Chief Cashier and that a person who is a mere matriculate could be appointed as clerk and in fact the petitioner who was a mere matriculate was appointed as clerk and rose to the position of the Chief Cashier. If thereafter he could not be promoted to the post of Assistant Accounts Officer, the post could have been filled up by transfer or deputation, or direct recruitment. In other words, there was no immediate need for amending the rules so as to fill up the post of Assistant Accounts Officer the beneficiary of which would be, in the facts and circumstances of the case, none but only the first respondent. If the third respondent was really interested in appointing a competent person to the post of Assistant Accounts Officer because the petitioner could not have been promoted to that post as he had not completed twenty years in the cash section, they could have very well filled up the post by transferring someone from some other department or by getting one on deputation or by a direct recruitment as the original rules provided. But instead of following the original recruitment rules, the third respondent chose to amend the said rules solely to favour the first respondent which is writ large on the face of the record. The record shows that the post of Assistant Accounts Officer was laying vacant since 1st April, 1985 but was not filled up and thereafter just a few months prior to the first respondent completing ten years of service in the cash section when he would be eligible for promotion because he was a graduate, the relevant rule was amended by including Cashier and Additional Cashier into the zone of consideration along with the Chief Cashier so that the first respondent alone could be promoted as he was working as Cashier. It is pertinent to note down here the relevant dates. Thus, the first respondent entered cash section on July 28, 1976 and, therefore, he could be entitled for promotion to the post of Assistant Accounts Officer on completion of ten years of service in that section only on July 28, 1986. The post was kept vacant from April 1, 1985 and the recruitment rule in question was amended on March 17, 1986 so that the first respondent could be promoted as a matter of course on or soon after July 28, 1986. We find no force in the contention raised by the second and third respondents in the return filed on their behalf that the recruitment rules were amended as it was considered desirable that the eligibility criterion was to be enlarged without in any manner affecting the qualifications and experience for the post and it was done that way to enable the appointing authority to have a larger zone of consideration.
14. Now we shall deal with the submissions made by Mr. Nadkarni which were adopted by Mr. Mavolkoor who appeared for the first respondent. According to Mr. Nadkarni, the petitioner was not, is not and will never be eligible for promotion to the post of Assistant Accounts Officer till he retires as he would not have twenty years of service in the cash section and, therefore, he cannot be said to be an aggrieved person to maintain this writ petition. Further, Mr. Nadkarni submitted that even if the amended recruitment rules (Exh. 'D') are quashed and set aside the petitioner cannot get promotion because if Exh. 'D' is quashed then the original recruitment rules (Exh. 'C') become alive and even then the petitioner cannot be considered for promotion to the post of Assistant Accounts Officer as he will not have twenty years of service till he retires and so long as the element of graduate is concerned there is no change in Exh. 'D' and Exh. 'C'. It is not doubt true, and in fact it is conceded by Mr. Rebello, that either under original recruitment rules (Exh. 'C') or under the amended recruitment rules (Exh. 'D') the petitioner would not be entitled to promotion to the post of Assistant Accounts Officer but that does not mean, further submitted Mr. Rebello, that he is not an aggrieved person. According to Mr. Rebello, the petitioner feels aggrieved that by amending the recruitment rules the first respondent who was junior to him in rank was sought to be promoted to the post above him which would humiliate him. We agree with Mr. Rebello because by this method if the petitioner is sought to be promoted to the post above him which would humiliate him. We agree with Mr. Rebello because by this method if the petitioner is sought to be humiliated he is really an aggrieved person who can maintain this petition. Therefore, it would not be correct to say that the petitioner is not a person aggrieved and cannot maintain the writ petition. In this view of the matter, we find no force in the contention of Mr. Nadkarni that this petitioner cannot be maintained by the petitioner who cannot be said to be a person aggrieved by the amendment of the recruitment rules. In support of his contention Mr. Nadkarni relied upon a Supreme Court Judgment in the case of B. N. Nagaraj etc. v. State of Karnataka and others etc (1979-II-LLJ-209) in which it was laid down the one who is not aggrieved cannot file a writ petition. But the said decision is not relevant to the facts of this case as we are of the opinion that the petitioner here is an aggrieved person.
15. Relying upon a judgment of the Supreme Court in Suresh v. Vasani and another , Mr. Nadkarni submitted that the relief, if granted, in this petition will be futile a the petitioner cannot be promoted, being not eligible. However, we are of the opinion that it is not quite correct to say that relief, if granted, would be futile merely because the petitioner cannot be promoted to the post of Assistant Accounts Officer. The useful purpose that will be served by quashing the amended recruitment rules (Exh. 'D') is that clear principle of law is laid down that clubbing of unequals is not permissible under the Constitution, being violative Articles 14 and 16. What will be the practical utility of quashing Exh. 'D' is for the parties to consider but the purpose of the petitioner would be served that one who was junior to him cannot become his superior the next day by unconstitutional means.
16. Relaying upon the case of The State of Maharashtra and another v. Chandrakant Anant Kulkarni and others (1981-II-LLJ-433). Mr. Nadkarni submitted that mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion of the petitioner did not tantamount to the change of conditions of service as an employee can have a right only to be considered for promotion. Mr. Rebello does not dispute this proposition of law that an employee can never demand promotion as a matter of right but he can only request that he be considered for the promotion. Here, however, we are not concerned with the promotion part of the of the petitioner because he is not eligible.
17. In this view of the matter, the writ petition succeeds and the same is allowed. The amended recruitment rules (Exh. 'D') are quashed and set aside being arbitrary and discriminatory and thus offending the provision of Articles 14 and 16 of the Constitution. The promotion of the first respondent made in pursuance of the said amended recruitment rules is also quashed and set aside. Rule is accordingly made absolute but with no order as to costs.
18. Mr. Nadkarni makes an oral application for leave to appeal to the Supreme Court. We do not think that leave to appeal to Supreme Court should be granted as the matter is decided in the light of the various Judgments of the Supreme Court. Leave is, therefore, refused. However the operation of this Judgment is stayed for six weeks.