Gujarat High Court
Todarmal Jiva Jadav vs Kandla Port Trust And Anr. on 14 March, 1991
Equivalent citations: (1991)2GLR1295, (1992)IILLJ477GUJ
JUDGMENT
1. By this petition under Art. 226 of the Constitution of India, the petitioner has inter alia challenged the action of the respondents in not giving him promotion to the post of Chief Engineer on the establishment of respondent No. 1
2. It would be quite proper to narrate a few facts giving rise to the present petition most of which are not in dispute between the parties. The petitioner joined the services of respondent No. 1 as an Assistant Engineer (Civil) on October 1, 1965. He was promoted as Executive Engineer on September 19, 1974. He got his further promotion as Superintending Engineer with effect from 21st August, 1988. He was placed on probation for a period of two years on the promotional post of Superintending Engineer. The Chief Engineer of respondent No. 1 retired from service with effect from August 31, 1989 (A. N.) presumably on his attaining the age of superanuation. The petitioner herein was thereupon required to discharge the current duties attached to the post of Chief Engineer as he was the senior-most Superintending Engineer. It appears that some advertisement inviting applications for the post of Chief Engineer on the establishment of respondent No. 1 was issued sometime in November 1989. The petitioner submitted his application on November 29, 1989 in response to the said advertisement. A copy of his application is at Annexure 'B' to this petition. For some unknown reasons the advertisement inviting applications for the post of Chief Engineer on the establishment of respondent No. 1 was reissued sometime in March 1990. A copy of that advertisement is at Annexure 'A' to this petition. It was provided therein that the candidates who had made applications in response to the previous advertisement need for apply again. It appears that certain applicants in response to the aforesaid advertisement were summoned for interview. The petitioner herein was not among them. He therefore approached this court by means of this Special Civil Application with a prayer that this case also should be considered for his appointment to the post of Chief Engineer on the establishment of respondent No. 1 on the strength of his application and by virtue of his working as the senior-most Superintending Engineer on the very same establishment. It transpires from the record that this Court directed the respondents to interview the petitioner for the post of Chief Engineer, without finalising the result of such interview during the pendency of this petition. Apropos, the petitioner appeared for interview on September 19, 1990. It may be noted at this stage that, when this petition was placed for its preliminary hearing as to admission and some interim relief, notice was ordered to be issued making it returnable on October 3, 1990. During the pendency of this petition for its preliminary hearing as to its admission, a reply affidavit on behalf of respondent No. 2 came to be filed. Therewith was annexed as Annexure-II a copy of one telex message. Therein a reference was made that the post of Chief Engineer on the establishment of respondent No. 1 was required to be filled in by promotion in the first instance failing which by transfer/deputation and failing both, by direct recruitment. It was further mentioned therein that the first two methods had failed and the post was therefore required to be filled in by direct recruitment. It appears that the knowledge of this telex message stirred the petitioner to stake claim on the post of Chief Engineer by way of promotion instead of direct recruitment as he was the senior-most Superintending Engineer on the establishment of respondent No. 1 and the next higher post for promotion was that of Chief Engineer. He thereupon sought leave to amend the petition. Such leave was granted. By amendment the petitioner has challenged the action of the respondents in not giving him promotion to the post of Chief Engineer on the establishment of respondent No. 1
3. Respondent No. 1 alone has filed reply affidavits in this case. The case as set up by respondent No. 1 is to the effect that the petitioner is not eligible to the post of Chief Engineer by promotion mainly on two grounds. In the first place, he does not possess the requisite experience of five years as superintending Engineer and secondly he was still on probation as Superintending Engineer when the post of Chief Engineer fell vacant on retirement of its incumbent on August 31, 1989.
4. To meet with the case set up by respondent No. 1 in their affidavits, the petitioner has cited instances of promotion given to two Superintending Engineers to the post of Chief Engineer in past though neither of them was possessing the requisite experience of five years. The petitioner has also cited instances of several persons to whom promotions were given while they were on probation. In further affidavits, respondent No. 1 has tried to explain their position in that regard. I propose to advert thereto little later.
5. When this petition was taken up for its final hearing, a grievance was sought to be made by Shri Brahmbhatt for respondent No. 1 that the petitioner chose to file one more affidavit sworn on February 27, 1991 and served to the otherside on February 27, 1991 and served to the otherside on February 28, 1991 without obtaining any permission from the Court. It may be stated at this stage that when this matter was taken up for final hearing, the affidavit sworn by the petitioner on February 27, 1991 was on record. Shri Thakkar for the petitioner asserts that it was filed in Court after mentioning to the Court about his filing it in the proceedings. It is possible that Shri Thakkar for the petitioner might have filed this additional affidavit in absence of Shri Brahmbhatt. That fact by itself would not suggest that the further affidavit of the petitioner was filed without obtaining the Court's permission in that regard.
6. Shri Brahmbhatt's grievance in that regard really is that the last minute affidavit of the petitioner has not given an opportunity to respondent No. 1 to controvert several averments made therein. This petition was taken up for final hearing on March 11, 1991 in the second sitting. As aforesaid a copy of the latest affidavit sworn by the petitioner was admittedly severed to both the respondent on February 18, 1991. The respondents thus had ample opportunity to call for the remarks thereon within a period of 12 days therefore. Ordinarily I would have readily acceded to the request made by Shri Brahmbhatt for respondent No. 1 to adjourn the hearing of this matter in order to enable him to get instructions from respondent No. 1 as to the points raised in the latest affidavit sworn by the petitioner in this case, but for the order passed by the Division Bench of this Court on January 29, 1991 in Letters Patent Appeal No. 2 of 1991 ordering vacating of interim relief in Favour of the petitioner herein if this Special Civil Application did not stand disposed of by March 15, 1991. It may be mentioned at this stage that Letters patent Appeal No. 2 of 1991 was preferred by respondent No. 1 herein against the interim order passed by this Court on December 3, 1990 in this petition restraining the respondent from filling up the post of Chief Engineer during the pendency of this petition. It appears that the respondents No 1 was in hurry to fill up the post of Chief Engineering on it establishment. That explains why Letters Patent Appeal No. 2 of 1991 was preferred on its behalf. It is stated at the Bar that, while the aforesaid Letters Patent Appeal was taken up for disposal it was pointed out to the Court that rule issued on this petition was made returnable on February 12, 1991 and that presumably promoted the Division Bench to restrict the operations of the interim relief upto March 15, 1991 thinking that the petition would be disposed of latest by that date. In the course of the order, the Division Bench reasonably expected that the learned Counsels for the parties would co-operate to get the matter disposed of by the Court sitting as single Judge and taking it up for final hearing. In view of the aforesaid order passed by the Division Bench of this Court on January 29, 1991 in Letters Patent Appeal No. 2 of 1991, Shri Brahmbhatt's request for adjournment cannot be entertained. In fact, in these days of advanced scientific technology, it would not be difficult to call for the required information from the concerned authorities to controvert any case set up by any party in the respective pleadings. It must be stated at this stage that one more affidavit on behalf of respondent No. 1 has been tendered today to meet with the case introduced by the petitioner in his latest affidavit sworn on February 27, 1990. I have permitted it to be tendered even after completion of arguments yesterday and when the matter is taken up today for dictation of judgment after the admission work was over. Again, the vital party concerned with this petition is respondent No. 2, that is, the Central Government. As will be pointed out hereinafter, it is the appointing authority for the post of Chief Engineer on the establishment of respondent No. 1. It has chosen neither to file any reply affidavit nor to pray for any adjournment on the ground that there was no sufficient time to call for the necessary instructions to meet with the petitioner's case as set up in his latest affidavit sworn on February 27, 1991.
7. It is an admitted position that the post of Chief Engineer is that of the Head of the Department. It cannot be gainsaid that the affairs of respondent No. 1 would be governed by the Major Port Trust Act, 1963, ('the Act' for brief). Section 24 thereof provides that appointment to the post of the Head of the Department is to be made by the Central Government in consultation with the Chairman of the Board of Trustees of the concerned port. It needs no telling that consultation cannot be equated with concurrence. In order to understand the scheme of the Act it would be quite proper at this stage to look at certain other provisions thereof. Section 28 thereof empowers the Board of Trustees of every port to make regulations inter alia for appointment and promotion of it employees. Section 124 thereof requires that such regulations have to be approved by the Central Government and published in the Official Gazette after laying them before each House of Parliament as provided in sub-section (4) thereof. Section 125 thereof empowers the Central Government to issue directions to any Board of Trustees of a port inter alia to make any regulations for all or any of the matters specified inter alia in Section 28 thereof. It further empowers the Central Government to frame regulations in that regard if such direction is not complied with.
8. It is an admitted position that no regulations with respect to appointment to any of the post of Heads of Departments have come to be in existence so far. It is again as admitted position on record that the Central Government by its letter dated September 21, 1988, suggested to respondent No. 1 to offer it views on draft regulations in that regard. A copy of that communications is annexed as Annex. - 1 to be reply affidavit sworn by one Shri L. G. Bhatt on behalf of respondent No. 1 on November 19, 1990.
8A. A copy of the draft regulations purposed to be accompanying the aforesaid letter of September 21, 1988 is annexed as Annexure 'I' to the reply affidavits sworn by one Shri A. S. Kelkar on October 2, 1990. It appears that a schedule was part of the said draft model regulation. Some extract thereof pertaining to the post of Chief Engineer is made part of Annexure 'I' to the affidavit sworn by Shri L. G. Bhatt on November 19, 1990. It appears that these model draft regulations accompanying the aforesaid letter of September 21, 1988 issued by the Central Government were approved by respondent No. 1 vide Resolution No. 106 at its meeting held on March 28, 1990. It appears that thereafter some Trustees suggested modification therein the remarks under column 8 of the Schedule where the posts of deputies in the feeder category were two or more. It appears that a suggestion in that regard was made to the Central Government for its consideration and presumably for approval and the Central Government by its telex message on September 25, 1990 conveyed its approval in principle and requested the Board to submit the necessary proposal for approval of the Central Government and publication in the Official Gazette. It appears that revised Regulations were thereupon framed and the office noting shows that they were to be placed before the Board for consideration and approval thereof subject to approval of the Central Government under sec 124(1) of the Act. Neither Shri Brahmbhatt nor Shri Raval has been able to enlighten me as to what has happened to such revised draft regulations thereafter. In absence of any definite information in that regard, it will not be unreasonable to presume that the said regulations have still not seen the light of the day. In that view of the matter there is no hesitation in coming to the conclusion that no regulations are in existence governing the field of appointment to the post of Chief Engineer on the establishment of respondent No. 1.
9. It appears from the record that the post of Chief Engineer on the establishment of respondent No. 1 was created sometime in 1972. The first incumbent to the post was one Shri E. G. D'mello. He was appointed as Chief Engineer though the did not posses the requisite experience of five years as Superintending Engineer. His successor was one Shri H. K. Asani. He was appointed as Chief Engineer with effect from December 11, 1979 though he also did not possess the requisite experience of five years as Superintending Engineer. It has been pointed out in the reply affidavit sworn by one L. G. Bhatt on behalf of respondent No. 1 on November 22, 1990, that Shri D'mello had rendered 4 1/2 years service as Superintending Engineer before he was appointed as Chief Engineer and Shri Asani had worked for nearly 3 1/2 years as Superintending Engineer before his appointment as Chief Engineer. It is not in dispute that both of them were the then senior-most Superintending Engineers when they were promoted as Chief Engineer at the relevant time. In their cases, it appears that the only eligibility criterion made applicable was that they were the senior-most Superintending Engineers. No insistence on experience of five years as Superintending Engineer before appointment to the post of Chief Engineer was made in their cases or in the case of either of them. It is the grievance of the petitioner before me that the respondents have made an undue departure in his case when the post of Chief Engineer fell vacant while he was working as the senior-most Superintending Engineer.
10. It may be mentioned at this stage that there are no administrative or executive instructions in force governing the question of appointment inter alia to the post of Chief Engineer. It is well settled that in absence of any statutory rule governing the question of appointment of Chief Engineer's post or administrative or executive instruction, the policy adopted by the concerned authority should furnish the guiding principles regarding the criterion or criteria to be followed for filling up such post. It is difficult to agree with the submission urged on behalf of the respondents to the effect that there was no declared policy on the part of the respondents for filling up such vacancies as that of Chief Engineer. As pointed out hereinabove, in past the post of Chief Engineer was filled by appointment of the senior-most Superintending Engineer, named, Shri D'mello and thereafter by appointment of then senior-most Superintending Engineer, named, Shri Asnani presumably when Shri D' mello retired, It is difficult to accept the submission urged before me on behalf of the respondents to the effect that two past instances would not constitute a policy on the part of the respondents laying down any criterion or criteria for filling up the post of Chief Engineer. In absence of any rule or administrative or executive instructions, the manner and method of filling up such vacancies as and when arising would show the policy adopted by the concerned authorities for the purpose. Even at the cost of repetition, it has to be reiterated that the policy to fill up the post Chief Engineer on the establishment of respondent No. 1 was by appointment of the senior-most Superintending Engineer. In other words, it was filled up by promotion.
11. Such past practice was in vague becomes clear from the aforesaid letter of September 21, 1988 sent down on behalf of the Central Government to the Chairman of respondent No. 1. It has been clearly mentioned there in - 'It has been found that in the case of the most of the posts the Port Trusts have proposed promotion as the first method of filling up and transfer/deputation has been suggested only as the 2nd method after exhausting the possibility of promotion'. This observation was made in the light of considerations by the Central Government of the proposals received from various Port Trusts for framing of recruitment rules for H.O.D. (Head of Department) level post in the ports. This observation found in the aforesaid letter of September 21, 1988 is quite eloquent and unequivocal to the effect that the post of Chief Engineer was filled up by promotion to the senior-most incumbents in the feeder category that is, the senior-most Superintending Engineer.
12. The non-promotion of the petitioner to the post of Chief Engineer is sought to be justified also on the ground that he was on probation as the Superintending Engineer. As pointed out hereinabove, there existed nor are in existence even today any Rules or Regulations laying down any criterion or criteria for filling up the post Chief Engineer on the establishment of respondent No. 1, nor were or are any administrative or executive instructions in that regard. It is difficult to find any prohibition against promotion of a probationer to the next promotional post as and when his turn ripens for the purpose. If any such attempt is made to disregard the petitioner's claim to the promotional post on such ground, such action has to be styled only as arbitrary, capricious and as such violative of Arts. 14 and 16 of the Constitution of India. I do not think it necessary to enter into the instances cited by and on behalf of the petitioners showing that persons in the feeder category on probation were also promoted to higher posts during the period of their probation. One instance however deserves to be noted. That is of Captain Chaturvedi. He was promoted to the post of Harbour Master (equal to that of Superintending Engineer) on October 10, 1990. He was obviously put on probation on the promotional post. About 3 months and 20 days thereafter, that is, on January 30, 1991, he was called for interview by the Departmental Promotion Committee to consider him for promotion to the post of Deputy Conservator (equal to the post Chief Engineer). He has come to be appointed as such by an order passed on February 14, 1991. No reply affidavit either on behalf of respondent No. 1 or respondent No. 2 has come to be filed controverting this fact situation. His case however is sought to be justified on the ground that he was appointed to the post of Deputy Conservator and not promoted thereto. The submission in that regard has no merit in it. It is not in dispute that he was working in the feeder category prior to his appointment as the deputy Conservator. It is not the case of the respondents or either of them that he was not the senior-most incumbent in the feeder category. Again, whenever the post of Head of Department was sought to be filled up in past even by promotion, the nomenclature used in the order was appointment and not promotion. The orders with respect to Shri D'mello and Shri Asnani when they were promoted as Chief Engineer at the relevant time are annexed as Annexures-I and II with reply affidavit sworn by one Shri L. G. Bhatt on behalf of respondent No. 1 on November 22, 1990. In both these orders, the word 'appointment' and not 'promotion' is used. The fact however remains that both of them were promoted in view of the fact to be power to fill up the post of Head of Department inheres in the Central Government as provided in Section 124 of the Act, and the heading of that section is "Power to make appointments". In that view of the matter, such order would recite appointment and only appointment, and certainly not promotion In fact, in view of the orders of Shri D'mello and Shri Asnani appointing them as Chief Engineer at the relevant time for by promotion on record, it would not have been proper on the part of the respondents to have justified the case of Captain Chaturvedi on the ground that in his case it was appointment and not promotion.
13. It has been submitted before me on behalf of the respondents that Captain Chaturvedi was selected for the post of Deputy Conservator not by the Departmental Promotional Committee but by the Selection Committee and that he was selected from amongst four candidates called for interview from different ports or Government agencies. It is sought to be suggested there by that this appointment was by way of direct recruitment. It may be mentioned at this stage that there is nothing on record to show or to suggest that his appointment was made by direct recruitment. If it was so, it could not have been made without issuing any advertisement as was issued in the present case. Besides in para 2 of the affidavit filed today on behalf of respondent No. 1, the only thing mentioned is that the authority of respondent No. 1 had inquired with the Ministry of Surface Transport with respect to the case of Captain Chaturvedi and the reply from the Ministry of Surface Transport with respect to the case of Captain Chaturvedi and the reply from the Ministry was awaited. In absence of any cogent material on record, it would be difficult to distinguish the case of Captain Chaturvedi on the ground that he was directly recruited to the post of Deputy Conservator. Besides, this would ordinarily be contrary to the accepted policy, as pointed out hereinabove, to fill up such vacancies firstly by promotion, failing which by transfer/deputation and failing both by direct recruitment. There is no material on record to show or to suggest that both the methods for filling up the vacancies of Deputy Conservator were exhausted.
14. Both Shri Brahmbhatt and Shri Raval for the respondents laid great emphasis on the fact that by the aforesaid letter of September 21, 1988, the policy of the Central Government laying down the criteria for filling up inter alia the post Chief Engineer was declared. I am persuaded to accept such policy as administrative instructions or executive instructions or guide lines issued by the Central Government in that regard. It is difficult for me to accept this submission. The reason therefore is quite simple. The Central Government has thereby suggested to frame Recruitment Rules or Regulations for bringing about a uniform practice in that regard. As pointed our hereinabove, therein has been referred to the existing policy adopted by most of the ports to fill up such vacancies firstly by promotion, failing which by transfer/deputation and as last resort by direct recruitment. With a view to bringing about a uniformity in appointment to such post, it has been declared therein that it is felt that in respect of all the posts where the number of posts in the immediate next feeder category is limited the first method to be adopted should be deputation/transfer or promotion (all together) failing which the method of direct recruitment should be adopted. Then Model Regulations are sent therewith for inviting objections, if any, thereto on the part of respondent No. 1. No direction is given therein to the effect that the former policy has to be given a go-bye and the policy sought to be evolved by means of the Model Recruitment Regulations has to be adhered to. In absence of any such direction given thereunder, it is difficult to accept the submission that the aforesaid letter of September 21, 1988 can be said to have made known the policy declared by the Central Government for filling up inter alia the post of Chief Engineer.
15. The ruling of the Supreme Court in the case of B. N. Nagarajan & Ors. v. State of Mysore & Ors., reported in (1967-I-LLJ-698) is of no help to the respondents in the present case. In that case the administrative instructions were found ruling the field in absence of any statutory rules governing the criteria for filling up the post involved therein. This ruling of the Supreme Court in Nagarajan's case is pressed into service for the purpose of showing that it would be open to the Central Government to exercise its executive power for making appointment to a post where there are no statutory rules or even administrative or executive instructions. The Principle that the Central Government exercise executive power in such a case can over be disputed in view of the aforesaid binding ruling of the Supreme Court in Nagarajan's case (superior). Exercise of executive power however cannot and should not be arbitrary, Such power cannot be exercised so as to create a discriminatory treatment. The executive power was exercised when Shri D'mello and Shri Asnani were appointed as Chief Engineer at the relevant time. No hostile discrimination against the present petitioner should be made in. He name of exercise of executive power when his turn came to be promoted to the post of Chief Engineer.
15A. On the same reasoning can be distinguished the rulings of the Supreme Court in the case of P. Kunhiraman Nambiar v. K. P. Gopalan Nair & Ors., reported in 1978 (1) SLR 877 and in the case of Rajendra Narain Singh & Ors. v. State of Bihar & Ors., reported in (1980-II-LLJ-138)
16. The ruling of the Supreme Court in the case of Sant Ram Sharma v. State of Rajasthan & Ors., reported in (1968-II-LLJ-830) is also of no help to the respondents in the present case. There promotion was claimed solely on the basis of seniority whereas the Government had issued administrative instructions laying down the criterion of merit for promotion. It has been held therein that the Government can issue administrative instructions laying down the principles to be followed for giving promotion till the statutory Rules in that regard are framed. This ruling of the Supreme Court in Sant Ram Sharma's case (superior) is therefore distinguish able on its own facts. On the same ground is distinguishable the ruling of the Supreme Court in the case of Lalit Mohan Deb & Ors. v. Union of India & Ors., reported in (AIR) 1972 SC 995.
17. Shri Brahmbhatt for respondent No. 1 heavily relied on the ruling of the Supreme Court in the case of Swaran Lata v. Union of India & Ors. reported in (1979-I-LLJ-273) on two counts. In the first place, he has submitted that the Central Government was competent to exercise its executive powers in deciding not to give promotion to the petitioner on the ground that he was not eligible according to the policy declared known by the aforesaid letter of September 21, 1988. I think this limb of his contention deserves no consideration at this stage in view of my aforesaid discussions. As pointed out hereinabove, I am of the opinion that no policy whatsoever inter alia for filling up the post of Chief Engineer on the establishment of respondent No. 1 has been laid down in that letter of September 21, 1988. His second limb of argument is that the petitioner should not be granted any relief in view of the fact that be granted any relief in view of the fact he chose to try his luck in response to the advertisement for direct recruitment to the post Chief Engineer on the establishment of respondent No. 1.
18. It may be noted that the petitioner came to know that he was not considered eligible for promotion for the first time when the telex message was annexed as Annexures-II with the reply affidavit sworn by one Shri A. S. Kelkar on October 2, 1990. Prior thereto he completely ignorant about his having been found ineligible for promotion to the post of Chief Engineer. It would not be unnatural for a person placed in the feeder capacity to aspire for his promotion to the higher post. It would not be unnatural that with a view to realizing his aspiration for the higher post he can make an application in response to some advertisement in ignorance of rejection of his claim to that post by promotion. It is true that he cannot be permitted to approbate and reprobate. When he sought leave to amend the petition laying his claim on the post of Chief Engineer by promotion, he impliedly gave up his claim to that post by direct recruitment. In fairness it must be admitted that no submissions have been urged on behalf of the petitioner in support of his claim to that post by way of direct recruitment. It must be made clear at this stage that submissions on behalf of the petitioner restricted only to the claim by promotion. It is true that the petitioner ought to have lodged his claim to the post of Chief Engineer by promotion as soon as the advertisement for filling up that post by direct recruitment was published in view of the fact that to his knowledge Shri D'mello and Shri Asnani were promoted as Chief Engineer at the relevant time. However, it is difficult to impute to the petitioner the knowledge about the policy adopted by the respondents to fill up the post firstly by promotion failing which by transfer/deputation and failing which by direct recruitment. That policy adopted by the respondents come to his knowledge only when the aforesaid telex message was brought on record.
19. Besides, in order to make a litigant disentitled to any relief on the ground of estoppel or such other technical considerations, a specific case has to be pleaded. In absence of such pleadings, the litigant against whom such technical considerations are applied would be deprived of meeting the case in that regard set up by the otherside at the stage of hearing. Even assuming for the being that such considerations for non-suiting a litigant can be urged at the time of hearing on the basis of the materials on record, such plea like estoppel has to be accepted only when by his conduct the concerned party has allowed the equities to be changed. If the petitioner had allowed the process of recruitment to go on and had participated there in and allowed the result to be out and had then come to the Court after having filed there at laying his claim to the post by promotion, he could have been said to have become disentitled to claim any relief from this Court by his conduct. That was exactly what happened in Swaran Lata's case (supra). The relevant portion of the judgment in that regard is found in paras 67-68 at page 290. It reads :
"In any event, the appellant cannot approbate and reprobate. She had willingly, of her own accord, and without any persuasion by anyone, applied for the post, in response to the advertisement issued by the Union Public Service Commission for direct recruitment She, therefore, took her chance and simply because the Selection Committee did not find her suitable for appointment, she cannot be heard to say that the selection of respondent No. 6 by direct recruitment through the Commission was invalid, as being contrary to the directions issued by the Central Government under Section 84 of the Act or that the Commission had exceeded its powers, usurping the functions of the Chandigarh Administration, in relaxing the essential qualifications of the candidate called for interview or that respondent No. 6 was not eligible for appointment inasmuch as she did not possess the requisite essential qualifications. She fully knew that under the terms of the advertisement, the Commission had reserved to itself the power to relax any of the essential qualifications. With this full knowledge she applied for the post and she appeared at the interview. We are clearly of the opinion that the appellant is precluded from urging these grounds.
68. Lastly; the contention of respondent No. 7, Smt. Usha Wadha that the failure of the Union Public Service Commission to re-advertise the post and thereby there was a denial of equal opportunity to her in violation of Art. 16(1) can be easily disposed of. It is true that no relaxation in qualifications can be made when an advertisement has duly been issued inviting applications and persons possessing the qualifications advertised, as prescribed by the rules are available and have submitted their applications. If a relaxation has to be made, there is a duty cast to re-advertise the post. In the instant case, however, the advertisement itself contained a relaxation clause and, therefore, nothing prevented respondent No. 7 from making an application, if she felt that she was better, if not equally, qualified as respondent No. 6. The contention appears to be an after-thought and must be rejected."
In that view of the matter, I am of the opinion that the ruling of the Supreme Court in Swaran Lata's case (supra) is also distinguishable on its own facts and is of no assistance to the respondent in this case.
20. In view of my aforesaid discussions, I am of the opinion that in not promoting the petitioner to the post of Chief Engineer, the respondents have meted out discriminatory treatment to him vis-a-vis that meted out to Shri D'mello and Shri Asnani, when they were appointed as Chief Engineer by promotion at the relevant time and as such the action of non-promotion of the petitioner to the post of Chief Engineer has to be held as violative of Arts. 14 and 16 of the Constitution of India.
21. As pointed out hereinabove, the petitioner was not held eligible for consideration for promotion only on the grounds that he did not possess the requisite experience of five years as Superintending Engineer and that he was on probation on the post of Superintending Engineer at the relevant time. These factors ought not to have been taken into consideration at all as pointed out hereinabove. The petitioner ought to have been considered for promotion and ought to have been given such promotion at the time of consideration of his case. It may be mentioned here that it is the case of neither respondent that the petitioner was ineligible for the post of Chief Engineer on the ground that his work was unsatisfactory or that he was guilty of some misconduct or that he was not senior-most person in the feeder category. In that view of the matter, he should have been considered eligible for promotion to the post of Chief Engineer. It is not in dispute that he was been discharging the current duties of that post since the date of retirement of the previous incumbent, named, Shri Asnani, with effect from August 31, 1989 (A.N.). The petitioner's case may be considered for promotion to that post from the time the vacancy occurred.
22. In the result, this petition is accepted. The respondents are directed to consider the petitioner's case for promotion to the post of Chief Engineer from the date the post fell vacant on retirement of the previous incumbent with effect from August 31, 1989 (A.N). The action of the respondents to fill up the post of Chief Engineer by direct recruitment without considering the petitioner's case for promotion is hereby quashed and set aside. If there is nothing adverse to the petitioner's working so far as discharge of current duties attached to the post of Chief Engineer is concerned, it is directed that he should not be disturbed from his present position for discharging current duties of the post of Chief Engineer till has case for promotion is finalised and the decision in that regard will communicated to the petitioner at least 15 days prior to disturbing him from his position if such decision goes against him. It is stated at the Bar that no allowance of whatever kind is available to the petitioner for discharging his current duties of the post of Chief Engineer. It is therefore desirable that the petitioner's case for promotion to the post of Chief Engineer from the date the vacancy occurred is decided as early and as expeditiously as possible. Rule is accordingly made absolute with costs.