Gujarat High Court
I.S. Sindhi And Ors. vs State Of Gujarat And Ors. on 9 January, 1989
Equivalent citations: (1989)2GLR999
JUDGMENT P.M. Chauhan, J.
1. Petitioners - Junior Clerks, Senior Clerks, Sub-Accountants, etc. - eligible for promotion to the post of Sub-Inspector of Prohibition and Excise, under the Inspector of Prohibition and Excise and Sub-Inspector of Prohibition and Excise (Recruitment) Rules, 1973 (hereinafter referred to as 'Recruitment Rules of 1973') in the Prohibition and Excise Department of State of Gujarat, have by this petition challenged the appointment of the direct recruits as Sub-Inspectors of Prohibition and Excise. According to the petitioners, the Director of Prohibition and Excise, respondent No. 2 who is the appointing authority, has not followed the rules providing quota between the direct recruits and the promotees in the ratio of 1: 3 and has also tried to introduce the manner and method of promotion by holding written and viva voce test even though no such provision is made in the said rules. They have also prayed for declaring the appointment of the direct recruits to the post of Sub-Inspectors as illegal, null and void and to direct the respondents to make recruitment by promotion according to quota and in the manner prescribed in the Recruitment Rules of 1973 and have also prayed for restraining the respondents from making any appointment of the direct recruit Sub-Inspectors.
2. All the 23 petitioners were holding the posts of Junior Clerks, Senior Clerks, Sub-Accountants etc. and have passed the departmental examination known as Departmental Examination of the Non-Gazetted Prohibition and Excise Officers and Clerks of the Prohibition and Excise Department, prescribed by the Notification dated July 8, 1965. The Inspector of Prohibition and Excise and Sub-Inspector of Prohibition and Excise (Recruitment) Rules, 1973 are made in exercise of the powers conferred by proviso to Article 309 of the Constitution of India in supersession of the previous rules. Rule 3 of the said rules provides that the appointment to the post of Sub-Inspector of Prohibition and Excise under the Directorate of Prohibition and Excise shall be made, as far as practicable. by direct selection and by promotion of a clerk of proved merit and efftciencv in the ratio of 1:3. The eligibility criteria for the above referred categories was proved merit and efficiency. Recruitment Rules of 1973 did not provide for any other test viz., written teat or the viva voce test for promotion to the Sub-Inspector of Prohibition and Excise Grievance of the petitioners was that inspite of the quota fixed under the rules in the ratio of 1: 3, the 2nd respondent-Director of Prohibition and Excise, purposely and mala fide did not adhere to the said quota and recruited Sub-Inspectors of Prohibition and Excise by direct recruitment out of proportion and with a view to deny the right of the eligible departmental persons and also introduced the written test and viva voce test for the purpose of selection even though the Recruitment Rules of 1973 did not provide for any such examination. The petitioners have cited several instances of such recruitment and holding the examination and objected to that. In short the petitioners have challenged the direct recruitment as well as the action of the respondent No. 2 in not promoting the petitioners to the post of Sub-Inspector of Prohibition and Excise. The petitioners have given details with regard to the date of joining the department, year of passing the relevant departmental examination, designation at the relevant time, etc., but they are not required to be specifically stated here.
3. At the initial stage this Court by order dated July 6, 1979 issued ad interim injunction restraining the respondents from making any appointment by direct recruitment and subsequently by order dated August 3, 1979 granted interim relief directing the second respondent not to make any appointment to the post of Sub-Inspector by direct recruitment during the pendency of this petition and further directing him to make appointments by promotion strictly in accordance with the relevant recruitment rules. By Civil Application No. 2028 of 1986 filed on July 16, 1986 in this Court by the State of Gujarat and the Director of Prohibition and Excise, the respondents prayed for vacating the ad interim relief granted by the Court stating several reasons, but that Civil Application could not be heard by this Court for certain reasons. Mr. P.V. Hathi, learned Counsel for the petitioners and Mr. G.D. Bhatt, learned Asstt. Government Pleader have agreed that the said Civil Application be considered as a part of the main petition and be disposed of with the main petition, as facts are stated and statistics are provided by the parties in the affidavits and statements filed in the said Civil Application.
4. On behalf of the respondents, affidavit is filed by the then Director of Prohibition and Excise Mr. P.B. Joshi, against whom grievance was made but that was only for limited purpose of stating the facts as directed by the Court. Subsequently the affidavit is filed by the Administrative Officer Mr. B.B. Nagi of the Officer of Director of Prohibition and Excise, and the statement is produced by him. Mr. Josht has not filed affidavit denying the allegations made against him to the effect that be was bent on recruiting direct Sub-Inspectors of Prohibition and Excises and denying the right of promotion to the petitioners. Mr. Joshi should have filed the affidavit trying to clarify the allegations made against him. It should, however, be stated that merely because Mr. Joshi did not file counter-affidavit controverting personal allegations against him, there is no material on record to show that he was bent on directly recruiting the Sub-Inspectors for other reasons and not in the interest of administration. However the fact remains that the respondents have not denied that the rules were not followed and that no effort was made, in accordance with the rules, to promote the eligible departmental persons to the post of Sub-Inspector. It is true that under the rules the provision is that the promotion out of the said cadres should be. as far as practicable, in the ratio of 1: 3 but that does not necessarily mean that the Director of Prohibition and Excise had the absolute authority to deny the promotion to the petitioners. Similar phrase was found in the Bombay State Government Resolution dated July 33, 1959 for vacancies in the Executive Branch Deputy Collectors (Upper Division) in the State of Gujarat and the ratio was 50: 50 for the direct recruits and the promotees. Considering similar provision the Supreme Court in the case of N.K. Chauhan v. State of Gujarat observed that the State should make sincere efforts to adhere to the quota rules and if it does not succeed despite honest and sincere efforts it qualifies for departure from the rule. The Supreme Court has also observed that if it has become non-feasible, impracticable and procrastinatory to get the requisite quota of direct recruits, the Governement was free to fill the posts by any other available method. It was therefore, necessary for the respondent No. 2, first of all to adhere to the prescribed quota under the rules for direct recruits and the prormotees and in case of failure only should have adopted to the alternative method. The respondents have not even tried to assert that the promotion of the petitioner was not feasible or practicable or any sincere effort was made by the competent authority to promote the eligible departmental persons but failed to get suitable persons. On the contrary the Director of Prohibition and Excise tried to introduce the written test and viva voce test which was not provided in the relevant" rules. As no effort was made to comply with the rules and to promote the petitioners it should be held that the petitioners who could have been provided subject to eligibility criteria, in the total number of the vacancies which were available to them, were denied their legitimate right. The respondents should have promoted the requisite number of eligible departmental persons who could have been promoted within the available vacancies and in the quota available to them. To that extent they have been denied their right. As statistics are provided by both the sides and finally in the affidavit of Mr. Nagi, I would consider the number of vacancies available to the petitioners at the relevant time.
5. lt appears from the contentions of the petitioners that the respondent No 2 was of the view that the quota was wrongly specified in the recruitment rules It appears that subsequently the existing rules were repealed by the Gujarat Sub-Inspector of Prohibition and Excise Recruitment Rules. 1980 (hereinafter referred to as 'Recruitment Rules of 1980) and made applicable from February 27, 1980. The Recruitment Rules of 1980 provide for the appointment to the post of Sub-Inspector of Prohibition and Excise by direct selection or by promotion on the basis of seniority of the persons of proved merit and efficiency from amongst the Senior Clerks, Sub-Accountants, Excise Jamadars and Constables. Rule 3 provides for the appointment by direct selection and promotion in the ratio of 1: 1 out of the vacancies available and also provides that the posts to be filled in by promotion shall be regularised in the ratio of 2 : 1 from amongst the groups of the posts as mentioned in Rule 2(ii) i.e. Group (i) of Senior Clerks, Sub-Accountnants and Supervisors and Group (ii) of Excise Jamadars and Constables. Under the Recruitment Rules of 1980 the Junior Clerks are not eligible for promotion as Sub-Inspector of Prohibition and Excise quota in the ratio of 1 : 3 was, therefore, available to the petitioner only upto February 26, 1980 and not subsequent to that.
6. Mr. Hathi, learned Counsel appearing for the petitioners has stated that all the 23 petitioners are promoted and so far as the promotion is concerned they have no grievance, but they have grievance for seniority as according to the petitioners, if at all they would have been promoted as Sub-Inspectors of Prohibition and Excise at the relevant time, as per quota rules they would have got seniority over the directly recruited Sub-Inspectors of Prohibition and Excise. For that purpose the statistics which are provided by the Department at Annexure T and also the statistics provided by the petitioners in the statement alongwith the affidavit of the petitioner No. 22 K.D. Shrimali be considered. Learned Counsel Mr. Hathi has now accepted the statistics provided by the Department at Annexure T. After the Recruitment Rules of 1973 were made applicable from February 13, 1973, the first appointment of the directly recruited Sub-Inspector was made on March 2, 1973. That fact is clear from the statement provided by the petitioners. From the statistics it appears that there were 69 posts of Sub-Inspectors of Prohibition and Excise, inclusive of 57 permanent and 12 temporary posts in 1979, and 64 permanent and 5 temporary posts upto February 26, 1980. During the period from February 13, 1973 to June 5, 1979, 34 vacancies occurred and from that date upto February 26, 1980, 14 vacancies occurred. In all there-fore, 48 vacancies occurred during that period. Upto the date of the filing of the petition 25 direct recruits were appointed and 9 departmental persons out of the eligible cadres, were promoted. After the interim order of this Court, 14 departmental persons were promoted as Sub-Inspectors of Prohibition and Excise upto February 25, 1980 I e the date on which the New Rules of 1980 came in force. It appears That because of the interim relief granted by this Court the department could noi make direct recruitment of Sub-Inspectors of Prohibition and Excise and promoted 48 departmental persons as Sub-Inspectors of Prohibition and Excise out of the eligible cadres. Upto June 25, 1979, 34 vacancies occurred and, therefore, if at all the quota rule would have been strictly complied with, at least 25 departmental persons could have got promotion and instead of that only 9 persons of them were promoted. Therefore, upto That date 16 departmental persons were denied their legitimate right. Upto February 26, 1980 in all 48 total vacancies (inclusive of above referred 34 vacancies) occurred. After the interim relief granted by this Court, no direct recruitment was made during that period and 14 departmental persons out of the eligible cadres were promoted. Out of total vacancies of 48 Sub-Inspectors of Prohibition and Excise, 36 departmental persons would have got promotion but out of them only 23 were promoted and therefore, there was shortfall of 13. Therefore, 13 eligible departmental persons were denied their legitimate right during that period. As referred above, after the New Rules of 1980 came in force, 48 departmental persons are promoted out of the vacancies of 58 Sub-Inspectors of Prohibition and Excise and no direct recruit is appointed because of the prohibitory order of this Court. Out of the 48 vacancies which are filled in by the departmental persons, the departmental persons could have claimed only for 24 posts and out of them the cadre of Senior Clerks, Sub-Accountants and Supervisors could have claimed only 16 posts. In all, therefore, the petitioners or the similarly situated departmental parsons could have claimed 29 posts inclusive of 13 posts which were available to them as per their quota. It appears that more of them are promoted as Sub-Inspector of Prohibition and Excise, but that is not much relevant for the purpose of this petition. The contention that the appointment of the directly recruited Sub-Inspectors should be considered as void and illegal cannot be accepted as they are appointed under the provisions of the Rules and by the competent authority. It may be that their appointment may not be in accordance with the strict adherence to the quota provided under the rules, but that does not necessarily mean that their appointment is not legal and valid.
7. The grievance of the petitioners is that if at all the petitioners or similarly situated departmental persons would have been appointed in strict compliance with the statutory Recruitment Rules of 1973, they would have got seniority over the directly recruited Sub-Inspectors of Prohibition and Excise. It is true that the eligible departmental persons who could have been promoted on the competent authority being satisfied about their merit and efficiency, are put to that disadvantage but that is a matter of consideration by the authority while considering the question of seniority. In what manner such seniority should be fixed is now well settled by the Supreme Court in the case of N.K. Chauhan v. State of Gujarat and subsequent judgments of the Supreme Court referred by this Court in the case of A.N. Trivedi and Ors. v. State of Gujarat 1988 (2) GLH 301 : 1988 (2) CLR 1123. The competent authority while fixing the seniority should consider this aspect and try to do justice to the petitioners or any of them in fixing the seniority. It should, however, be observed that the question of seniority is not before this Court at this stage and, therefore, these observations are being made only for the purpose of giving guidelines to the department and to point out that injustice to that extent appears to have been done to the eligible departmental persons. As the petitioners are already promoted, their grievance for promotion does not survive and, therefore, no order is required to be passed in that connection. The relief is also granted to the extent that out of the petitioners and similarly situated eligible departmental persons who could have been promoted as Sub-Inspectors on the eligibility criteria, under the Rules, 13 persons over and above the 14 persons who were promoted between June 26, 1979 and February 26, 1980 should be considered as promoted under the Sub-Inspectors Rules of 1973, upto February 26, 1980 and be granted deemed date of promotion as Sub-Inspectors. It is for the competent authority to consider as to who, out of the petitioners or similarly situated eligible departmental persons, would have been promoted on the basis of the eligibility criteria under the rules. Over and above this, the claim for their seniority also be considered. Rule is made absolute to that extent with no orders to costs. Interim relief stands vacated.
8. In view of the above order, no separate orders are required to be passed on the Civil Application and it accordingly stands disposed of.