Gujarat High Court
Pareshkumar Mansukhlal Trivedi vs Principal District Judge on 6 March, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/15132/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15132 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 10512 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 14213 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 16628 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 17936 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 19031 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 23293 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV Sd/-
======================================================
1 Whether Reporters of Local Papers may be allowed to No see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?
=========================================================== PARESHKUMAR MANSUKHLAL TRIVEDI Versus PRINCIPAL DISTRICT JUDGE & 2 other(s) =========================================================== Appearance:
MR VK JOSHI and MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1 MS TRUSHA PATEL, MR. HEMANG SHAH for LAW OFFICER BRANCH(420) for the Respondent(s) No. 1,2,3 MS NISHA M THAKORE(3293) for the Respondent(s) No. 1,2,3 =========================================================== CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV Page 1 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT Date : 06/03/2020 COMMON CAV JUDGMENT
1. The petitioners are working as Peons under the establishment of the District Court in different districts. They are claiming their right of being promoted as Bailiffs. In some cases, the petitioners' names were also sent for consideration for promotion. The case of the petitioners is that on coming into force of the new Rules of 2017 ("The Non-Judicial Officers and Staff of the Courts (Recruitment and Conditions of Service) Rules, 2017), their right to promotion to the posts of Bailiffs have been taken away.
Facts of Special Civil Application No.15132 of 2017:
2. The petitioner joined services as Peon in the year 1999. On 26.12.1957, the then State of Bombay issued a Government Resolution by which it was decided to frame an Advisory Committee of District Judges for making appointments to Class-III and Class-IV services in the judicial department.
3. The petitioner, though became eligible in the year 2002 and passed his CCC examination in Page 2 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT 2006, no promotion orders were issued. Several requisitions were sent and consent of the petitioner was sought and granted but no action was taken though the petitioner was eligible for promotion.
4. By the impugned order dated 12.7.2017, the request of the petitioner was declined on the ground that he did not possess the qualification of Hon'ble Supreme Court as per the new Rules.
5. Vide a notification dated 10.4.2017, Rules called "The Non-Judicial Officers and Staff of the Courts (Recruitment and Conditions of Service) Rules, 2017" were published. Rule 2 stipulated will come into force on date of publication.
6. Ms.Harshal N. Pandya, learned counsel for the petitioner made the following submissions:
* Rules prevailing at that time though binding were not followed strictly and process of promotion were delayed which has resulted into stalling of promotion forever. Rules of 2017 operate prospectively and petitioner was eligible before such Rules came into force.
* Delay / inaction on the part of authorities Page 3 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT has virtually jeopardized right of petitioner leading to foreclose his right of promotion forever. Hence, rules in vogue when vacancies arose to be followed.
* Draft rules though directed to be acted upon, in many districts, cases were considered as per old rules and promotions were released. Equity demands similar treatment to Class-IV employees who have been waiting for their turn past two decades.
* Unamended / old rules are applicable to the vacancies arising prior to it.
* Employees while having no indefeasible right to claim promotion, should not be deprived of same only because of delay / inaction of authority or for want of proper rules at the behest of employer.
7. In support of the submissions, she relied on the following decisions:
* Union of India v. Hemraj Singh Chauhan reported in AIR 2010 SC 1682.
* Delhi Jal Board v. Mahinder Singh reported in AIR 2000 SC 2767 Page 4 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT * Y.V. Rangaiah v. J.Sreenivasa Rao reported in 1983(3) SCC 284 * State of Rajasthan v. R. Dayal reported in 1997 (10) SCC 419 * Arjun Singh Rathore v. B.N. Chaturvedi reported in 2007(11) SCC 605 * Kulwant Singh v. Daya Ram reported in 2015(3) SCC 177 * Ganpatlal Patel v. High Court of Gujarat in Special Civil Application No.3524/2019.
* Mayank Bhagwandas Shethwala v. High Court of Gujarat in Special Civil Application No.6231/2018 dated 24.6.2019.
* Raghunath Sinh v. Government of Bihar reported in AIR 1988 SC 1033 She would submit that vacancies had occurred prior to the Rules of 2017 having come into force and the petitioner's case should be considered in light of such facts and disqualified on the basis that the new Rules had come into force.
8. Mr.V.K. Joshi, learned counsel appeared in the following petitions and gave a tabular details of the service history of each petitioner in petitions where he is appearing which is reproduced Page 5 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT hereunder:
NO. SCA NO. DETAILS OF THE CASE
1 10512/2017 (I) Appointed as a Peon on
One 16.7.1997, since then he is
Petitioner serving as Peon.
District
Court, (II) possess the standard 9th
Bhavnagar passed. CC passed on 29.1.2015.
(III) Experience - Given charge of Driver Class-III during the period between 12.1.2015 to 2.4.2015 and thereafter also.
(IV) 11.1.2017-PDJ, Bhavnagar call for consent to be appointed as a Bailiff.
(V) 13.1.2017-given in written
consent to the PDJ, to be
considered for the post of Bailiff.
(VI) Total vacant post of Bailiff -
15.(VII) Last promotion order issued on 11.11.2013 for Bailiff. Since Page 6 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT then, no promotion order has been issued.
2 14213/2017 (I) Appointment as a Peon on
Two 16.7.1998
petitioners
District (II) Passed 9th standard, and CCC
Court, examination, pass
Bhavnagar
(III) Given a written consent for appointment to the post of Bailiff on 13.8.2017 as per the details as stated hereinabove at Sr. No.5 to 7. 3 16628/2017 (I) Appointed between 1996 to Thirteen 2000 petitioners District (II) Impugned order No.893/2017 Court, dated 3.8.2017 challenged Bhavnagar whereby juniors to the present petitioners promoted to the post of Bailiff with a condition to work as a Peon subject to outcome of Special Civil Application No.10512/2017 under Rule 10.4.2017.
(III) Qualification - standard 9th pass and CC examination passed.
Page 7 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT(IV) Details regarding consent to be considered him for the post of Bailiff given to District Judge on 13.1.2017.
4 19031/2017 (I) Appointed as a Peon on
One 15.3.1990.
petitioner
District (II) Exempted to pass the CCC
Court, examination on completion of 50
Bhavnagar years age.
(III) 4.7.2004 promoted as a
Bailiff but promotion order not accepted for limited periods, hence, PDJ, Bhavnagar debarred for promotion to the post of Bailiff for three years only.
(IV) Impugned orders
No.893/2017 dated 3.8.2017
challenged whereby the juniors were promoted to the post of Bailiff.
(V) Petitioner given written
consent on 13.1.2017 to be
considered for promotion to the Page 8 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT post of Bailiff.
5 17936/2017 (I) Appointed as a Peon during
Eighteen the period between 1996 and
petitioners 2008.
District (II) Total vacant post of Bailiff
Court, available - 21
Navsari. (III) Qualification - Standard 9th
and 10th (SSC) passed.
(IV) No promotion order for bailiff passed due to rules dated 10.4.2017.
6 23293/2018 (I) Appointment since 1991
Sixteen onwards.
petitioners
District (II) Impugned orders
Court, No.296/2017 dated 1.8.2017
Mehsana. challenged whereby 6 juniors to
present petitioners promoted to the post of Bailiff.
(III) Qualification - 9th and 10th Standard passed.
9. In addition to the submissions of Ms.Pandya, Mr.Joshi relied on the decision of Hon'ble Supreme Court order dated 7.10.2009 which considered the report of Shetty Pay Commission. The relevant extract of the Shetty Pay Page 9 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT Commission reads as under:
A report of clearly provides for improvement of service conditions of Judicial Staff is accepted in toto and all impleadment applications came to be allowed by Supreme Court report.
(ii) Provisions under Shetty Commission Report, (Page 11):
For the post of Bailiff qualification required standard 8th passed.
Method of Recruitment of Bailiff (Page 22) (A) Purely a promotion cadre from the feeder cadre of Peon.
(B) 50% by direct recruitment and 50% by promotion from feeder cadre of Peon.
(iii) He has relied on Division Bench judgment being Special Civil Application No.7813/2010 dated 7.9.2011 and submitted as under:Page 10 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT
(A) Government Resolution dated 2.9.2011 is a part of the Judgment.
(B) Qualification for feeder cadre of Peon is prescribed standard VIIth passed.
(C) 75% of vacant post of Bailiff to be filled up from the feeder cadre of Class-IV i.e. Peons and 25% of vacant posts from feeder cadre to be filled up for entry level of Class-III i.e. Junior Clerk.
Therefore, his submission is that on the basis of the recommendation of the Shetty Pay Commission and the Division Bench Judgments a much less rigorous criteria for promotion was prescribed.
(iv) All the petitioners are serving as Peons for more than 1 to 3 decades and possess requisite experience in the feeder cadre of the Peons. All posts have fallen vacant prior to the new Rules of 2017 published on 10.4.2017.
(v) All the petitioners are appointed under the Bombay Recruitment Rules, 1957 and Page 11 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT as per the guideline issued by the Hon'ble High Court dated 10.12.1991.
(vi) Hon'ble Supreme Court vide order dated 7.10.2009 accepted the recommendation of the Shetty Pay Commission Report in toto and, therefore, provisions made in Shetty Pay Commission Report is applicable in the case of the present petitioners, wherein, qualification required for promotion for the post of Bailiff in feeder cadre in standard 8th. So far as the State of Gujarat is concerned, as per the Shetty Pay Commission Report, 75% posts of Bailiff are required to be filled up for the feeder cadre of Class-IV i.e. Peons and 25% filled up by way of direct recruitment.
(vii) Division Bench of this Hon'ble Court directed to implement the recommendation of the Shetty Pay Commission in toto and accordingly standard 7 qualification is prescribed for feeder cadre of Class-IV which are required to be filled up as per the Seniority, 75% of posts of Bailiff is to be filled by way of promotion from the feeder cadre of Class-IV and 25% posts are to be reserved for the entry level of Class-III i.e. Junior Clerk.
Page 12 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT(viii) Notification dated 10.4.2017 (New Rules, 2017) came into the effect from the date of its publication i.e. 10.4.2017 which cannot be made applicable under Rule 2 with retrospective effect. Under Rule-15 of Rules, 2017 (Schedule B) at Sr. Nos.14, 15 and 16, the post of Xerox Operator, Driver and Bailiff are to be filled up from the feeder cadre of Class-IV, 75% by way of promotion and 25% by way of direct recruitment.
10. Mr.Joshi relied on the following decisions:
(I) Y.V. Rangaiah v.
J.Sreenivasa Rao reported in 1983(3) SCC 284, Para 8 & 9 (II) Maharashtra Forest Guards and Foresters Union v. State of Maharashtra reported in 2018(1) SCC 149, Para 17 (III) Rakesh Kumar Garg v. State of Uttar Pradesh reported in 2018(1) SLR, 364 (SC) (IV) C,M. Parikh v. V.M. Mehta reported in 1987(1) GLR, 362 (DB), Para 9 & 12 (V) Sasidhar Reddy Sura v. State of Andra Pradesh reported in 2014(2) SCC, 158 (VI) President, Industrial Court v. Rasikbhai Parshotamdas Patel Page 13 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT reported in 2004(3) GLH 136.
11. Ms.Trusha Patel, Mr.Hemang Shah and Ms.Nisha Thakore, learned counsels have appeared on the administrative side of the High Court and their submissions are as under:
* That when the case of the petitioner was being considered, the Rules of 2017 were already in force. There can be no argument of retrospective application as when the case was considered, Rules of 2017 were in force.
* The High Court has wide powers to make Rules under Article 235 of the Constitution of India and issue directions in administrative matters relating to service conditions. The Rules, 1957 are just in the form of resolutions and are always subject to powers of the High Court.
* Draft Rules of 2015 were already in force and therefore administrative instructions vide letter dated 23.12.2015 were written to act as per the Draft Rules.
12. Learned counsels relied on the following decisions:
Page 14 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT* P.Suseela and others v. University Grants Commission reported in 2015 (8) SCC 129 * High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat reported in 2003(2) GLH 96 * Abraham Jacob v. Union of India reported in 1998(4) SCC 65 * N.S. Joshi v. Principal District Judge reported in 2013(3) GLH (NOC) 2 * Division Bench decision of this High Court dated 3.7.2013 in Letters Patent Appeal No.794 of 2013 and allied matters rendered in the case of Y.P. Kumpavat v. State of Gujarat.
13. Mr.Hemang Shah & Ms.Nisha Thakore, learned counsels made the following submission:
* The present petitions are filed after the Rules have come into force on 10.4.2017. Thus, the date of consideration would play an important role in the granting of promotion as the same would be placed for consideration before the advisory committee now. The Rules of 2017 prescribe the eligibility criteria as required for promotion to the post of Bailiff; the mode of recruitment; name of feeder cadre and experience. The Rules prescribed that, 75% of Page 15 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT the post would be filled up on the basis of efficiency and past performance while 25% of the post would be filled in through direct recruitment on the basis of competitive examination. For getting promotion the feeder cadre would be Class-IV services and should have not less than 5 years experience in the feeder cadres and should also possess HSC certificate or its equivalent examination, possess knowledge of driving cycles or two wheelers, sufficient knowledge of Gujarati and / or Hindi and basic knowledge of Computer as prescribed by the government. Thus, it is mandatory that an employee seeking promotion to the post of Bailiff from the post of Peon is required to fulfill the eligibility criteria as prescribed in Rules of 2017. The contention raised by the advocate on behalf of the petitioners that the executive instructions should be invoked and applied would thus not be tenable. This would in-fact amount to opening up a pandora's box.
* The Hon'ble Supreme Court of India in various judgments has held that draft recruitment rules can be implemented provided that there were no rules governing the field. In the present case, there were no rules under Article 309 of the Constitution of India Page 16 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT governing the field. It was only executive instructions of 1957 which were framed under Article 162 of the Constitution of India that were holding the field.
Learned advocates for the respondents have relied upon the following Judgments:
(A) Union of India v. V.Ramakrishnan reported in 2005(8) SCC 394, Para Nos.23 to 28.
(B) Oral Judgment dated 7.12.2017 passed by this Hon'ble Court in Letters Patent Appeal No.1927 of 2017 and connected matters in the case of High Court of Gujarat v. Principal Secretary and another.
(C) CWP No.385/2011 decided on 26.03.2018 -Ramesh Chand v. State of HP Para Nos.6, 9, 10
to 13 (D) Rajasthan State Sports Council and others v. Uma Dandhich and others reported in 2019(3) SCALE 90 decided by Hon'ble Supreme Court - Para No.8 * In the present case, the demand of the petitioners that they should be granted Page 17 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT promotion to the post of Bailiff from deemed date by applying the executive instructions of 1957 or even over looking the Rules of 2017 would not be tenable. The new rules have come into force for all purposes. There is no challenge to the Rules of 2017 in any of the Special Civil Applications. The petitioners are only standard 10 pass. Hence, the reliefs as sought for by the petitioners ought not to be granted by this Hon'ble Court and the same be dismissed.
14. Considering the respective submissions of the learned advocates appearing for the petitioners and the High Court on its administrative side, what needs to be appreciated is, whether the petitioners, can claim the benefit of the Resolution of 26.12.1957 and communication dated 10.12.1991.
15. The Government Resolution dated 26.12.1957 reads as under:
"Government has decided that Advisory Committee should be formed in every District to assist the District Judges in making appointments to Class-III and Class- IV services in the judicial department. The Advisory Committee for each District should compose of the District Judge, the Assistant Judge and the Civil Judge, Senior Division. In a District, where there is no Assistant Judge, the Advisory Committee should compose of the District Judge and the Civil Judge, Senior Division.Page 18 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT
2. The rules for recruitment of candidates to Class III and IV Services in the District are contained in the Appendix attached.
BY ORDER AND IN THE NAME OF THE GOVERNOR OF BOMBAY.
Sd/ Asst. Secretary to the Government of Bombay, Home Department."
16. The relevant accompanying recruitment rules to Class-III and Class-IV services in the subordinate Judicial Sources read as under:
Rule 1 The District Judge shall maintain a list of candidates for Class-III and Class-IV posts in his District and no candidate whose name is not on that list shall be employed in any Civil or Criminal Court.
Rule 2 The list shall contain names of candidates for recruitment to Class III and Class IV posts separately namely for (A) Clerks, (B) Section Writers, (C) Stenographer, (D) Bailiffs and (E) Peons. Each part of the list shall be a separate one.
BAILIFFS:
(i) Regional Language final examination or an equivalent examination;
(ii) Active habits and temperament.
Rule 19:
The District Judge may, however, promote any Section Writer to the post of a Clerk, a Clerk or a Section Writer to the post of Page 19 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT Stenographer, a Bailiff to the post of a Regional Section Writer or a Peon to the post of a Bailiff, provided they are properly qualified and, in the opinion of the District Judge, fit for promotion to the higher post.
17. On 22.11.1982, guidelines were reiterated for guidance as regards promotion to the posts of Bailiff from the cadre of peons under Rule 19 wherein, it was resolved that 25% of the posts of Bailiffs shall ordinarily be filled in by promotion from amongst persons in the cadre of peons who have put in not less than 3 years' service.
18. On 10.12.1991, an intimation was sent by the administrative side of the High Court enhancing the ratio for promotion of peons to Bailiffs to 75%. A selection committee was to prepare a list for such purposes in February every year. According to the communication, the rules were to be followed scrupulously and, therefore, the submission is that till such Rules of 2017 came into force, it was incumbent for the High Court, on the administrative side to follow such rules.
19. The letters of 22.11.1982 and 10.12.1991 read as under:
"No.B.1421/82 Date: November 22, 1982 From C.C. Morakhia, Esq.
Jt. Registrar, Page 20 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT High Court of Gujarat Ahmedabad-380009 To The Chief Judge, Small Causes Court, Ahmedabad.
FILLING IN POSTS OF BAILIFFS FROM THE CADRE OF PEONS BY PROMOTION:
Sir, With reference to the subject noted above, I am directed by the Hon'ble the Chief Justice and the Hon'ble Judges to state that Rule 19 of the Recruitment Rules for recruitment to Class III and IV service inter alia provides that the District Judge may promote a Peon to the post of Bailiff provided he is properly qualified and in the opinion of the District Judge fit for promotion to the higher post. It has been represented to this High Court that these discretionary powers are sparingly used by the Judicial Officers and there are few promotional outlets for the Peons. Their Lordships have considered the same and have been pleased to lay down the following rules of guidance as regards promotion to the posts of Bailiffs from the cadre of Peons under Rule 19 of the Recruitment Rules for Recruitment to Class III and IV services in the subordinate judicial services.
(1) 25% of the posts of Bailiffs shall ordinarily be filled in by promotion from amongst persons in the cadre of Peons including Havaldars, Naiks, Watchmen, and Jail Warders having put in not less than 3 years' service and possessing requisite Educational Qualifications for being appointed on the post of a Bailiff and also other side otherwise suitable for such post.
(2) The Selection Committee shall prepare select list for this purpose (to be known as the select list of promotees) in February every year beginning from Page 21 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT February, 1983.
(3) As many persons shall be enlisted in this select list as it is necessary for filling up by promotion 25% of the expected vacancies during the following year subject to the availability of persons duly qualified and fit for promotion.
(4) Normal rules of promotion will govern such promotion.
(5) Rules or instructions regarding Roster System as are made applicable in regard to promotion shall also be followed in preparing the select list or promotees.
(6) The appointment to the post in the cadre of Bailiffs shall be made on one to three basis from the select list of promotees and the select list of candidates selected for direct recruitment.
(7) If the number of persons enlisted in the select list of promotees is not sufficient for filling up 25% of the available vacancies during the year, the deficiency shall be made good by appointment from the select list of direct recruits.
I am, therefore, to request you to be so good as to follow the above rules of guidance scrupulously.
Yours faithfully, Sd/ Joint Registrar."
"No.B.1421/82 Date: December 10, 1991 From Jt. Registrar, High Court of Gujarat Ahmedabad-380009 To The District Judge, The Chief Jusdge, Page 22 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT Small Causes Court, Ahmedabad.
FILLING IN POSTS OF BAILIFFS FROM THE CADRE OF PEONS BY PROMOTION:
Sir, In partial modification of this High Court letter of even number dated 22.11.1982, on the subject noted above, their lordships have been pleased to lay down following revised rules of guidance as regards promotion to the posts of Bailiff from the cadre of Peons under Rule 19 of the Recruitment Rules for Recruitment to Class III and IV services in the Subordinate Judicial Services, subject to finalization of framing / amendment in Recruitment Rules of 1957: -
1. 75% of the posts of Bailiffs shall be filled in by promotion from amongst persons in the cadre of Peons including Havildars, Naiks, Watchman and Jail Warders having put in not less than 3 years' service and possessing requisite Educational Qualification for being appointed on the post of a Bailiff and is otherwise suitable for such post.
2. The Selection Committee shall prepare select list for this purpose (to be known as the select list of promotion) in February every year.
3. As many shall be entitled in this select list as it is necessary for filling up by promotion 75% of the expected vacancies during the following years subject to the availability of persons duly qualified and fit for promotion.
4. Normal Rules of promotion will govern such promotion.
5. Rules or instructions regarding roster system as are made applicable in regard to promotion shall also be followed in Page 23 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT preparing the select list of promotes.
6. The appointment to the post in the cadre of Bailiffs shall be made on three to one basis from the select list of promotes and the select list of candidates selected for direct recruitment.
7. If the number of persons enlisted in the select list of promotes is not sufficient for filling up 75% of the available vacancies during the years, the deficiency shall be made good by appointment from the select list of direct recruits.
I am, therefore, to request you to be so good as to follow the above rules of guidance scrupulously, henceforth, Receipt of this letter may kindly be acknowledged.
Yours faithfully, Sd/ Joint Registrar."
20. The case of the petitioners as submitted through their respective advocates is that Rules of 1957 operated during the currency of their eligibility for promotions to the posts of Bailiff. True it is that the right to be considered for promotion is now virtually a fundamental right but such a right to be so considered cannot be de-hors the statutory rules or the structure of department in context of its rules.
21. Judgments have been pressed into service to submit that the eligibility must be decided on the basis of the Rules prevailing at the time when the vacancies arose. The case of the Page 24 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT petitioner is that prior to 2015 and 2017, the petitioners were eligible for consideration and that they were invited by obtaining their consent and, therefore, a subsequent higher qualification prescribed by the notified rules, would not apply retrospectively. In addition thereto, there can be no consideration on the basis of draft rules of 2015.
22. Mr.V.K. Joshi, learned counsel for the petitioners also has placed on records judgments to support the submission that the Rules of 2017 cannot operate retrospectively so as to deprive the petitioners who were otherwise eligible as per the Rules, 1957 read with 1981 and 1991 communications.
23. In addition thereto, extensive references have been made to excerpts from the Shetty Commission's report to suggest that for the post of Peons, the requisite educational qualification is standard VII pass.
24. The question is that can the Resolution of 26.12.1957 read with the communication dated 22.11.1991 and December, 1991 be said to have statutory character. The answer to such question has to be in the negative. The Page 25 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT resolution dated 26.12.1957 and the appended recruitment rules are not of a statutory nature akin to the Rules framed under Article 309 of the Constitution of India. Such instructions cannot bind the High Court, on its administrative side to compel the employer to act in accordance with such Rules / Advisories.
25. Rule 19 of the Rules, therefore, cannot be claimed it to be statutory in character. No right to claim promotion based on such administrative instructions can be claimed.
26. Pending consideration of the petitioners for promotion, the High Court on its administrative side framed the Draft Recruitment Rules namely The Non-Judicial Officers and Staff of Courts (Recruitment and Conditions of Service) Rules, 2015. The relevant paras of the letter dated 29.9.2015 reads as under:
"In this respect, I am to state that, the Government has vide Legal Department, Resolution No.PGR/102010/14/Par-III/D, dated 02.09.2011, granted benefits of the recommendations of the Hon'ble Shetty Pay Commission to the Staff of the Subordinate Courts in the State and revised pay scales of the certain posts. In the said Resolution dated 02.09.2011, the Government while accepting most of the recommendations of the Hon'ble Shetty Pay Commission, has requested this High Court to take necessary steps on certain points / cadres for Page 26 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT implementation of recommendations of the Hon'ble Shetty Pay Commission. Accordingly, revised Draft Recruitment Rules for recruitment of employees in the Subordinate Courts in the State have been prepared by incorporating the recommendations of the Shetty Pay Commission, which have been approved by the High Court.
I am, therefore, directed by the Hon'ble the Acting Chief Justice and the Hon'ble Judges of this High Court to forward herewith a copy of Draft Recruitment Rules namely "The Non-Judicial Officers and Staff of the Courts (Recruitment and Conditions of Service) Rules, 2015," for recruitment of employees in the Subordinate Courts of the State, with a request to move the Government and place the same before the Hon'ble Governor, for finalization of the said Draft Recruitment Rules namely "The Non-Judicial Officers and Staff of the Courts (Recruitment and Conditions of Service) Rules, 2015" and for approval and issuance of necessary Notification thereof, at the earliest.
This may be taken up on most priority basis.
Yours faithfully, Sd/-
Registrar General"
27. That submission of Mr.V.K. Joshi that the Shetty Pay Commission Recommendations must be enforced and the qualification of process servers be standard VII pass has not found favour with the Government as is evident from the Government Resolution dated 2.9.2011 in the cadre-wise recommendation as far as Class IV is concerned, the qualification recommended is Page 27 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT Minimum standard VII pass except for process servers.
28. Even the letter dated 23.12.2015 indicates implementation of such recommendations on urgent basis. Relevant portion reproduced hereunder:
"I am, therefore, further directed to request to be so good as to initiate the process for implementing the Government Resolutions dated 02.09.2011 and 29.10.2015 granting benefits of the recommendations of the Shetty Pay Commission to the Non-Judicial Staff Members working on your establishment, as per the Draft Recruitment Rules, on an urgent basis, in view of the judgment dated 16.03.2015 passed by the Hon'ble Supreme Court and directions issued by the Hon'ble Court (Coram:
Hon'ble Ms. Justice Sonia Gokani) in Special Civil Application No.12845/2015 vide order dated 17.12.2015."
Yours faithfully, Sd/-
Registrar General High Court of Gujarat"
29. Therefore, when the petitioners were considered the Draft Rules of 2015 were in place. By the Draft Rules of 2015 which were subsequently modified in 2017 i.e. 10.4.2017 a higher eligibility qualification was prescribed. The petitioners only had a right to be considered for promotion. Such right of course is subject to their satisfaction of a minimum eligibility Page 28 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT qualification.
30. It will be relevant to reproduce paragraph No.15 of the Judgment in the case of P.Suseela (Supra).
"15. Similar is the case on facts here. A vested right would arise only if any of the appellants before us had actually been appointed to the post of Lecturer/Assistant Professors. Till that date, there is no vested right in any of the appellants. At the highest, the appellants could only contend that they have a right to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such time as the appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the appellants is affected, nor does it mean that the regulation laying down such minimum eligibility condition would be retrospective in operation. Such condition would only be prospective as it would apply only at the stage of appointment. It is clear, therefore, that the contentions of the private appellants before us must fail."
31. Article 235 of the Constitution of India gives an absolute right to the High Court to frame statutory rules.
32. That Draft Rules can be pressed into service is so held in the case of V.Ramakrishan and others (Supra). Relevant paragraph Nos.23 to 28 are Page 29 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT reproduced hereunder:
"23. As has been noticed by this Court in Abraham Jacob and Others Vs. Union of India [(1998) 4 SCC 65] and Vimal Kumari Vs. State of Haryana and Others [(1998) 4 SCC 114], such draft rules can be acted upon to meet urgent situations when no rule is operating.
24. In High Court of Gujarat and Another Vs. Gujarat Kishan Mazdoor Panchayat and Others [(2003) 4 SCC 712], it was observed:
"27. It is now trite that draft rules which are made to lie in a nascent state for a long time cannot be the basis for making appointment or recommendation. Rules even in their draft stage can be acted upon provided there is a clear intention on the part of the Government to enforce those rules in the near future. (See Vimal Kumari v. State of Haryana)"
25. But, therein the question as to whether a draft rules can constitute a valid rules or not, did not arise for consideration either in Gujarat Kisan Mazdoor Panchayat (supra) or in Abraham Jacob (supra) and Vimal Kumari (supra).
26. The rules did not become inoperative only because the two scales of pay of the Superintending Engineer and the Chief Engineer became same in terms of revised pay scales. A rule does not become inoperative only because the UPSC says so. A rule validly made even if it has become unworkable unless repealed or replaced by another rule or amended, continue to be in force. As regard, scale of pay, the matter should have been referred to the anomaly removal committee. In terms of the new rules, the criteria prescribed under the old rules were modified. Thus, till the new rules were given effect to, no promotion to the post of Chief Engineer could be effected in derogation to the criteria prescribed under Page 30 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT the existing rules.
27. In Dr. Rajinder Singh Vs. State of Punjab and Others [(2001) 5 SCC 482], this Court held:
"5. It has not been disputed before us that on the relevant date when Respondent 3 was recommended for promotion, he had not completed 10 years of service within the meaning of Rule 9-A read with Rule 2(2) of the PCMS Class I Rules. As Respondent 3 was not possessing the requisite qualifications on the relevant date, he could not be considered for promotion to the post of Deputy Director, Health Services."
It was further held :
"7. The settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution."
28. Valid rules made under proviso appended to Article 309 of the Constitution of India operates so long the said rules are not repealed and replaced. The draft rules, Page 31 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT therefore, could not form the basis for grant of promotion, when Rules to the contrary is holding the field. It can safely be assumed that the principle in Abraham Jacob (supra), Vimal Kumari (supra) and Gujarat Kisan Mazdoor Panchayat (supra) that draft Rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution of India."
33. It will also be in the fitness of things to reproduce paragraph Nos.9 to 13 in the case of Ramesh Chand (Supra) reported in 2008(2) ShimLC, 85.
"9. Their Lordships of the Supreme Court have held in the following cases that the Court, Tribunal, cannot direct the Government to frame statutory rules or amend Existing statutory rules under Article 309 of the Constitution of India. Their Lordships have held in Mallikarjuna Rao and Ors. v. State of Andhra Pradesh and Ors. MANU/SC/0450/1990 : (1990) 2 SCC 707, as under:
Special Rules have been framed under Article 309 of the Constitution of India, The power under Article 309 of the Constitution of India to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. The Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner. The Courts cannot assume to itself Page 32 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India.
10. Their Lordships of the Supreme Court have held in State of Jammu and Kashmir v.
A.R. Zakki and Ors. MANU/SC/0293/1992 :
1992 Supp (1) SCC 548, that the power to frame rules is legislative in nature and a writ of mandamus cannot, therefore be issued directing the State Government to make the rules. Their Lordships have held as under:
In our opinion there is considerable merit in this submission. A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. Section 110 of the J and K Constitution, which is on the same lines as Article 234 of the Constitution of India vests in the Governor, the power to make rules for appointments of persons other than the District Judges to the Judicial Service of the State of J and K and for framing of such rules, the Governor is required to consult the Commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court.
The aforesaid observations leave no room for doubt that the purport of the direction that has been given by the High Court is that the amendments that have been recommended by the High Court should be incorporated in the rules. In our opinion, such a direction was impermissible and cannot be upheld.
11. The Hon'ble Supreme Court has further observed in Union of India and Ors. v. Syed Mohd. Raja Kazmi and Ors.
MANU/SC/0180/1994 : 1992 Supp (2) SCC 534, that it is not open for the Page 33 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT Administrative Tribunal or for the Courts to interfere with and to dictate the avenues of promotion, which the department should provide for its various employees. Their Lordships have held as under:
It is not for the Administrative Tribunal or for the Courts to interfere with and to dictate the avenues of promotion which the department should provide for its various employees. The Courts cannot, we think, direct that T As should be made a direct feeder post to HCs superior to Udcs.
12. Similarly, their Lordships of the Supreme Court have reiterated in Government of T.N. and Anr. v. S. Arumugham and Ors. MANU/SC/0912/1998 :
(1998) 2 SCC 198, that the Government has a right to frame a policy to ensure efficient and proper administration and to provide suitable channels of promotion to officers working in different departments and offices. Their Lordships have held as under:
The Tribunal itself came to the conclusion that combining all the departments and having a common seniority list was neither justified nor feasible. But it has given directions for a different kind of allocation and a different scheme. These directions pertain to policy matters. The Tribunal ought not to have directed the Government to change its policy. The Government has a right to frame a policy to ensure efficiency and proper administration and to provide suitable channels of promotion to officers working in different departments and offices. In Indian Rly. Service of Mechanical Engineers 'Assn. v. Indian Rly. Traffic Service Assn., this Court reiterated that the correctness of a policy should not be questioned by the Tribunal. The Appellants in their affidavit before the Tribunal have given in detail the history of these provisions and the justification for these provisions in the interests of Page 34 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT efficiency and proper administration. The Tribunal cannot substitute its own views for the views of the Government or direct a new policy based on the Tribunal's view of how the allocation should be made. The three groups which have been formed as far back as in 1977 for the purposes of allocation consist of officers performing different functions and having different prospects and different avenues of promotion. They cannot be equated for the purposes of Articles 14 or 16. In the case of Govind Dattatray Kelkar v. Chief Controller of Imports and Exports, this Court held that the concept of equality in the matter of promotion can be predicated only when promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the difference between the two sources, the recruitment can be justified as legitimate classification. This reasoning directly applies in the present case. Therefore, the scheme does not violate Articles 14 or 16, nor is it arbitrary. The quota which should be fixed or the allocation which should be made for the purpose of deputing officers to the Tamil Nadu Revenue Subordinate Service is basically in the domain of the executive. Unless there is a clear violation of any provision of the Constitution, the Tribunal ought not to have given directions for formulating a new policy and a different quota.
13. In view of the observations made here in above, and the law laid down by the Hon'ble Supreme Court we are of the considered opinion that the Petitioner has not made out a case for striking down the rules notified on 30.11.1996 and 19.7.1997 for the post of Technical Assistant and Assistant Radio Engineer. The rules are neither violative of Articles 14 or 16 of the Constitution of India Page 35 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020 C/SCA/15132/2017 CAV JUDGMENT nor are they arbitrary, oppressive or unreasonable. There is no illegality in the orders passed by the learned Tribunal whereby the O.A. preferred by the Petitioner has been dismissed. We uphold the order passed by the learned Tribunal and consequently the writ petition is dismissed. However, before parting with the judgment, we are of the opinion that if the State deems just and proper a separate quota to the category to which the Petitioner belongs taking into consideration their higher qualification be carved out for promotion to the post of Technical Assistants. This observation has been made only to mitigate the hardship faced by the Petitioner after coming into force of the rules as noted above."
34. Keeping these in mind, the petitioners being ineligible in view of Rules of 2017 have no right to be promoted and the petitions are accordingly dismissed. Rule is discharged.
Sd/-
[ Biren Vaishnav, J. ] *** Vatsal Page 36 of 36 Downloaded on : Sat Mar 07 10:58:43 IST 2020