Gujarat High Court
Gujarat vs State on 23 March, 2010
Author: D.H.Waghela
Bench: D.H.Waghela
Gujarat High Court Case Information System
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SCA/488/2010 7/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 488 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Sd/-
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ? 1
& 2 YES; 3 to 5 NO
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GUJARAT
RAJYA KARIGAR TALIM YOJNA KARMACHARI MANDAL VARG & 1 -
Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
NK MAJMUDAR for
Petitioners : 1 - 2.
MR SHIVANG SHUKLA ASSTT GOVERNMENT PLEADER
for Respondents : 1 - 2.
None for Respondent :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 23/03/2010
CAV
JUDGMENT
1. The petitioners are an association and its president representing the employees serving on class-III posts in various industrial training institutes under the State Government. They have invoked Article 226 of the Constitution with the grievance that, by virtue of the Foreman Instructor in the Gujarat Skill Training Service Class-III Recruitment Rules, 2008 (for short the Rules ) notified on 29.9.2008, the Government has included in the cadre of Foreman Instructor , Group Instructor (Plastic Processing Operator Trade), Group Instructor (Computer Trade) and Junior Training Officer (Advance Vocational Training Scheme). The Government has, by those rules, not only included the aforesaid three posts in Annexure-1 to the Rules, but provided in Rule 2 of the Rules that the categories in Annexure-1 shall include all other posts as may be declared by a general or special order by the Government. The Rules are made to provide for regulating recruitment to the post of Foreman Instructor in the Gujarat Skill Training Service Class-III in the Subordinate Service of the Directorate of Employment and Training. And Rule 3 thereof provides for promotion to the post of Foreman Instructor Class III of a person of proved merit and efficiency from amongst the eligible persons as also for recruitment by direct selection. The grievance of the petitioners is that by indirectly expanding the cadre of Foreman Instructor, the Rules have included in that category not only Foreman Instructors but the aforesaid three categories of employees, who were traditionally treated as subordinate or inferior to the Foreman Instructors and thus that part of the Rules were violating Articles 14 and 16 of the Constitution by treating unequals as equals.
2. It was submitted that, according to another set of rules made under Article 309 of the Constitution providing for regulating recruitment to the posts of Principal Class-II/ Senior Surveyor Class-II/ Technical Officer Class-II/ Training-cum-Placement Officer/ Trade Testing Officer/ Senior Training Officer in the Gujarat Skill Training Service, promotion to those posts require proved merit and efficiency and seven years of working experience in the cadre of Foreman Instructor Class-III in the Subordinate Service of the Directorate of employment and Training. Thus, the newly added posts of Group Instructor (Computer Trade), Group Instructor (Plastic Processing Operator Trade) and Junior Training Officer are included in the feeder cadre; while the recruitment rules for those three cadres required lesser educational qualifications. It was, on that basis, submitted that the impugned rules are irrational, arbitrary and violative of Article 14 of the Constitution. It was also submitted that the earlier rules called the Vice-Principal Gujarat Skill Training Service Class-II (Junior Duty) Recruitment Rules, 1983 did not provide for promotion to Class-II post of Vice-Principal for the aforesaid three categories of employees, even though, admittedly the pay-scales of those three newly added feeder cadre posts were made equal to the pay-scale of Foreman Instructors. It was, in that context, submitted that mere equality of pay-scale can never be the criteria for treating particular posts as equivalent or equal; but the nature of work and the qualification prescribed for particular post should be the decisive criteria.
3. The petitioners have relied upon Constitution Bench judgment of the Supreme Court in All India Station Masters' and Assistant Station Masters' Association v. General Manager, Central Railway [AIR 1980 SC 384], wherein it was observed as under:
8.
........There is, in our opinion, no escape from the conclusion that equality of opportunity in matters of promotion, must mean equality as between members of the same class of employees, and not equality between members of separate, independent classes.
12. In view of this conclusion, it is unnecessary for the purpose of the present case to decide the other question : whether matters of promotion are included in the words "matters relating to employment" in Art. 16(1) of the Constitution .
In the facts of the above case, the petitioners contended that the channel of promotion in so far as it enabled Guards to be promoted as Station Masters in addition to the other line of promotion open to them as Guards amounted to denial of equal opportunity as between road-side Station Masters and Guards in the matter of promotion and thus contravened the provisions of Article 16 (1) of the Constitution. And the Apex Court rejected the petition on the ground that the petitioners belonged to a wholly distinct and separate class from Guards and so there can be no question of equality of opportunity in matters of promotion as between the petitioners and Guards.
3.1 The petitioners also relied upon another Constitution Bench judgment of the Apex Court in Ram Lal Wadhwa v. State of Haryana [AIR 1972 SC 1982]. The pertinent observations therein read as under:
47.
........The two cadres thus being separate, Government was not bound to bring about an integrated cadre especially in view of its decision of making the provincialised cadre a diminishing one and bringing about ultimately through that principle one cadre only in the field in a phased manner. If through historical reasons the teachers had remained in two separate categories, the classification of the provincialised teachers into a separate cadre could not be said to infringe Art. 14 or Art. 16. It was also not incumbent on the Government to frame the 1961-Rules uniformly applicable to both the categories of teachers, firstly, because a rule framing authority need not legislate for all the categories and can select for which category to legislate. .............There can be no doubt that if there are two categories of employees, it is within Government's power to recruit in one and not recruit in the other. There is no right in a government employee to compel it to make fresh appointments in the cadre to which he belongs. It cannot also be disputed that Government had the power to make rules with retrospective effect and therefore, could provide therein that appointments made between October 1, 1957 and February 13, 1961 shall be treated as appointments in the State cadre. That had to be done for the simple reason that the provincialised cadre was already frozen even before October 1, 1957 and Government had decided not to make fresh appointments in that cadre since that cadre was to be a diminishing one.
It was further observed:
53. ......The real grievance of the provincialised teachers could be not that an integrated service was split into two by the Rules but that the Rules did not combine the two. No principle under Art. 14 or Art. 16 is involved if such an integration was not brought about, for, considering the past history of the two services and the differences existing between them, Government could not be required to fuse them into one upon any principles emanating from the two Articles. ..... There is nothing in either Art. 14 or Art. 16 under which Government could be compelled to maintain that cadre in its original strength or make fresh appointments in that cadre. ....... The two service thus being separate both before and after provincialisation and there being no complaint about dissimilar or arbitrary treatment among members of the provincialised cadre, it is difficult to appreciate the grievance of discrimination or the denial of equal opportunity. The conclusion on the reasons hereabove given is that no infringement of either of the two Articles is involved in this case.
The above observations clearly show that the Court was dealing with a situation which was contrary to the contentions in the present petition.
3.2 Indian Railway SAS Staff Association v. Union of India [AIR 1998 SC 805] was relied upon for the proposition that simplistic solution to classification merely based on the scales of pay might lead into various complications and might lead to administrative hierarchial imbalances in any particular organisation. Selection procedure for appointment to a particular group post and requirements of a department for classification of posts are valid considerations and any disturbance thereof would certainly lead to compounding of problems. The scale of pay alone cannot be the criteria for classification of posts.
3.3 S.P.Shivprasad Pipal v. Union of India [AIR 1998 SC 1882] was relied upon for the petitioner, although following observations are made therein:
7. .......The three cadres though operating separately, were operating in the field of Industrial Relations and Labour Welfare; and, therefore, in 1987 it became possible to merge the three cadres as per the recommendations of the Cadre Review Committee and the discussions held thereon. The respondents have also stated that in merging the three services the Government's intention was to provide for avenues whereby the officers of the three merging cadres could get enriched by the experience of different posts. The interchangeability brought out by the creation of a new service enables, for example, the Assistant Labour Commissioners to get the experience of work in an industry. Similarly, Labour Officers and Senior Officers can get exposure to some of the quasi-judicial functions connected with the posts of Assistant and Regional Labour Commissioners. It was, therefore, felt that the constitution of a unified cadre was in public interest. Hence the merger took place. Since this is essentially a matter of policy, the scope of review by the Court is limited. We can, however, examine the grievance of the appellant relating to unequals being treated as equals and the grievance relating to losing promotional avenues.
14. The Cadre Review Committee after examining the kinds of duties discharged by these officers decided that since they all worked in the area of labour welfare, it would be desirable that they could widen their experience. This would be possible if the cadres were integrated and the posts were made interchangeable so that the members of the cadre could get a more varied experience in different areas of labour welfare, thus making for a better equipped cadre. Therefore, although the exact nature of work done by the three cadres was different, it would be difficult to say that one cadre was superior or inferior to the other cadre or service.
15. A decision to merge such cadres is essentially a matter of policy.
Since the three cadres carried the same pay scale at the relevant time, merging of the three cadres cannot be said to have caused any prejudice to the members of any of the cadres. The total number of posts were also increased proportionately when the merger took place so that the percentage of posts available on promotion was not in any manner adversely affected by the merger of the cadres .
4. Perusal of the Foreman Instructor in the Gujarat Skill Training Service Class-III Recruitment Rules, 2008 would clearly show that they are made to provide for recruitment to the post of Foreman Instructors in Class-III by promotion and by direct recruitment. In order to be eligible for such promotion, apart from proved merit and efficiency, experience of five years in the cadre of Supervisor Instructor in Class-III, passing of prescribed departmental examination and qualifying examination for computer knowledge are required. Even after appointment on promotion, the candidate is required to undergo such training and pass such examination as may be prescribed by the Government. Such provisions make it abundantly clear that mere inclusion of any posts in Annexure-1 to the Rules, at par with Foreman Instructor, does not, by itself, make a candidate eligible for promotion to the post of Foreman Instructor Class-III. And, if an employee in any of the cadres or posts included in Annexure-1 satisfies the aforesaid eligibility criteria, there is no valid reason to exclude him from the selection process for promotion to the post of Foreman Instructor Class-III. Therefore, the case and the contention of the petitioners are misconceived and wholly devoid of any merit. Besides that, as recently reiterated by the Supreme Court in Union of India v. Pushparani [(2008) 9 SCC 242] in para 37, it is the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source /mode of recruitment and qualifications, criteria of selection, evaluation of service records of employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated by mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.
5. Keeping in view the above salutory dicta and inapplicability in the facts of the present case of the aforesaid judgments relied upon for the petitioners, the impugned rules or inclusion of three categories of employees in the annexure to the rules cannot be set aside as arbitrary or unconstitutional. Therefore, the petition is summarily dismissed.
Sd/-
( D.H.Waghela, J.) (KMG Thilake) Top