Bombay High Court
Shri Shivaji Shripati Gaikwad & Ors vs The State Of Maharashtra & Ors on 30 September, 2011
Bench: B.H.Marlapalle, Nishita Mhatre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2092 OF 2011
Shri Shivaji Shripati Gaikwad & ors. ... Petitioners
v/s
The State of Maharashtra & ors. ... Respondents
ALONG WITH
WRIT PETITION NO. 4236 OF 2011
The State of Maharashtra & ors. ... Petitioners
v/s
Shri Shivaji Shripati Gaikwad & ors. ... Respondents
Mr.S.R.Nargolkar, A.G.P. for the petitioners in W.P.No.4236
of 2011 and for respondent Nos.1 and 2 in W.P.2092 of 2011.
Mr.A.S.Khandeparkar with Mr.Anilkumar Joshi for
respondent Nos.16 to 26 in W.P.No.4236 of 2011 and for
respondent Nos.3 to 12 in W.P.No.2092 of 2011.
Mr.R.S.Apte, Sr. Advocate with Ms.S.P.Manchekar for the
petitioners in W.P.No.2092 of 2011 and for respondent Nos.1
to 9, 11 to 14 in W.P.No.4236 of 2011.
Mr.Nilesh Talekar i/by J.G.Reddy for respondent Nos.14, 16,
18, 35 to 37 in W.P.No.2092 of 2011 and for respondent No.
27 in W.P. No.4236 of 2011.
CORAM: B.H.MARLAPALLE &
SMT.NISHITA MHATRE, JJ.
DATED: 29TH/30TH SEPT., 2011
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ORAL JUDGMENT (Per Marlapalle, J.:
1. Both petitions filed under Articles 226 and 227 of the Constitution of India have challenged the common judgment dated 7.3.2011 rendered by the Maharashtra Administrative Tribunal (for short, "MAT") in a group of original applications. In Writ Petition No.2092 of 2011, three of the petitioners were the private respondents before the Tribunal.
Writ Petition No.4236 of 2011 has been filed by the State of Maharashtra.
2. Rule. Respondents waive service. By consent of the parties, the petitions have been heard finally.
3. By the notification dated 17.7.2009, the State Government, in exercise of its powers conferred by the proviso to Article 309 of the Constitution of India, framed the State Excise Department (Recruit) Rules, 2009, and the said notification was published in the State Government Gazette of the same date. Rule 3 of the said Rules and more particularly Rule 3(a)(iii) read with Rule 3(c)(iii), came to be challenged on its constitutional validity before the MAT. The Tribunal has, by the impugned common judgment, upheld the constitutional validity of the impugned Rule but at the same ::: Downloaded on - 09/06/2013 17:47:31 ::: 3 WP2092-4236.11 has stated that it shall not apply to the original applicants who had joined prior to 1.1.1993 as clerks/constables under the State Excise Department.
4. Initially and before the formation of unified State of Maharashtra by the Government Resolution dated 26.12.1958, the State Government had framed Recruitment Rules to the non-gazetted posts on the Excise and Prohibition Department in supersession of the earlier rules. Rules 3 and 4 of the 1958 Recruitment Rules read as under:-
"3. Sub-Inspectors of Prohibition and Excise.
(I) Appointment shall be made -
(a) Ordinarily by nomination from amongst persons who must not be more than 25 years of age at the time of appointment may have passed the Intermediate Examination of recognized University or on examination of an equivalent standard, and
(b) in special circumstances by promotion from the ranks of clerical or constabulary establishment.
(II) Every person appointed to the post of Sub-
Inspectors
(i) If appointed by nomination be on probation for two years be on probation for two years,
(ii) be required to pass the Prohibition and Excise Subordinate Service Departmental Examination and an examination in the language of the district in which he is serving according to prescribed rules, and ::: Downloaded on - 09/06/2013 17:47:31 ::: 4 WP2092-4236.11
(iii) unless exempted by the Director of Prohibition be required to undergo and pass in a course of physical training.
Provided that the Director may grant exemption in respect of Sub-rules (ii) and (iii) above to any senior member from constabulary staff appointed by promotion.
(iv) In the event of the failure or the candidate appointed by nomination to pass the departmental examination or the physical training course, the Director may, at his discretion dispose with his services or may deal with him in any other manner as he may deem fit.
4. Prohibition and Excise Constabulary Force (Petty Officers and Constables) Appointments to posts on the Prohibition and Excise Constabulary force shall be made either by nomination or by promotion. When an appointment is made by nomination a candidate must possess the following qualifications, namely:-
(i) in the case of a male candidate:-
(a) he must be certified to be fit and of good constitution by the Presidency Surgeon in the case of Bombay City and by the Civil Surgeon in the case of mofussil before he is finally selected,
(b) he must be not less than 18 not more than 28 years of age on the date of enlistment provided that the upper-age limit may be relaxed up-to 35 years in the case of ex-serviceman.
(c) he must conform to the following standards or physique Height: 5' - 4" and 162 centimeters Chest:- This mean between the deflated and inflated chest measurements must be not less than 79 centimeters Note: The difference between the deflated and inflated chest measurements must be not less than 5 centimeters.::: Downloaded on - 09/06/2013 17:47:32 ::: 5
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(d) he must have passed at least the sixth standard examination of an approved primary school or the Indian Army 2nd Class certificate of education examination.
Note: The Director of Excise and Prohibition is empowered to relax in suitable cases the conditions regarding the prescribed physical standard in favour of candidates appointed to the constabulary staff.
(ii) In the case of female candidate:-
(a) she must be certified to be fit and of sound constitution by the Presidency Surgeon in the case of Bombay City and by the Civil Surgeon in the case of mofussil before the Director of Excise and Prohibition may either dispense with such certificate or accept a certificate signed by a registered magical practitioner, and
(b) she must be or not less than 18 or more than 35 years of age on the date of appointment.
It is to be noted that under Rule 3 of the 1958 Rules for appointment to the post of Sub-Inspector, there were no prescribed physical standards in terms of height, weight and expansion of chest, etc., whereas for the posts of Petty Officers and Constables, the candidate was required to have the height of 5 ft. 4 inches (162 centimeters) and the mean between the deflated and inflated chest measurement was not to be less than 79 centimeters. The said Rules also did not contemplate recruitment of female Sub-Inspectors but they did contemplate the recruitment of female Petty Officers and Constables.
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5. These Rules were replaced by the State Excise Department (Recruitment) Rules, 1992 which continued to be in force till they were replaced by the State Excise Department (Recruitment) Rules, 2004 as published in the State Government Gazette on 29.9.2005. Finally, the State Excise Department (Recruitment) Rules, 2009 have replaced the Recruitment Rules of 2004. It would be appropriate for ready referenceig to reproduce Rules 3 and 4 of the Recruitment Rules of 1993, 2004 and 2009 as under:-
Rules 3 & 4 of Recruitment Rules of 1993:
"3. Appointment to the post of Inspector of State Excise department shall be made by promotion of a suitable person on the basis of seniority subject to fitness from amongst the persons holding the post of Sub-Inspector of State Excise having not less than 3 years regular service in that post."
"4. Appointment to the post of Sub-Inspector of State Excise shall be made either,
(a) by promotion of a suitable person on the basis of seniority subject to fitness from amongst the clerical cadre and the Constabulary of the Department, who -
(i) having not less than 3 years regular service in the department;
(ii) have passed at least the Secondary School Certificate Examination,
(iii) possess minimum physical standards prescribed for appointment by nomination in sub-
clause (iii) of clause (b);
(iv) are not more than 45 years of age; and ::: Downloaded on - 09/06/2013 17:47:32 ::: 7 WP2092-4236.11
(v) have passed the written examination prescribed by the Commissioner for the purpose; or
(b) by nomination from amongst the candidates who:-
(i) are not less than 19 years of age and not more than 30 years of age,
(ii) possess a degree of a statutory University.
(iii) possess the following minimum physical standard, viz.
(I) In case of male candidates the minimum height not less than 165 centimeters, and minimum deflated chest not less than 79 centimeters with expansion of minimum 5 cms. Between deflated and inflated chest measurements.
(II) In case of female candidates the height should not be less than 160 centimeters and weight not less than 50 kgs.
Rules 3 and 4 of Recruitment Rules of 2004:-
"3. Appointment to the post of Sub-Inspector of State Excise Department shall be made either:-
(a) by selection on the basis of common merit list prepared by the Commission from amongst the persons belonging to the clerical cadre or constabulary of the State Excise Department on the basis of the result of the limited Competitive Departmental Examination and who -
(i) possess minimum physical standards prescribed in sub-clause (ii) of clause (b) of this rule;
(ii) have minimum regular service in clerical cadre or constabulary with educational qualifications as specified below:
Minimum Regular: Educational Qualification Service ::: Downloaded on - 09/06/2013 17:47:32 ::: 8 WP2092-4236.11 (1) 3 years ... Degree in any faculty.
(2) 5 years ... Passed the Higher Secondary School Certificate Examination.
(3) 7 years ... Passed the Secondary School Certificate Examination.
(iii) have passed at least the Secondary School Certificate Examination; and
(iv) are not more than 45 years of age;
(b) by nomination on the basis of the result of competitive examination held by the Commission and for admission to which a candidate shall -
(i) be within the age limit as may be fixed by the General Administration Department of Government of Maharashtra from time to time for recruitment of Government Servants in general;
(ii) passes a degree;
(ii) possess the following minimum physical measurements, namely:-
For Male Candidates:
Height ... 165 cms. Minimum
Chest ... 79 cms. Minimum with minimum
expansion of 5 cms.
For Female Candidates:
Height ... 157 cms. Minimum
Chest ... 50 kg. Minimum."
"4. Appointment to the post of Sub-Inspector by selection on the basis of limited Competitive Departmental Examination and nomination shall be made in the ratio of 50:50.
Provided that 1/5th of the total posts to be filled in by promotion shall be filled in from the clerical cadre ::: Downloaded on - 09/06/2013 17:47:32 ::: 9 WP2092-4236.11 and the remaining 4/5th shall be filled in from the constabulary as per the select list prepared separately for the two cadres;
Provided further that, if adequate number of persons are not available in any of the cadres, to fill up the vacancies reserved for that cadre, then the unfilled posts shall be filled in from the candidates available from the other cadre."
Rules 3 and 4 of Recruitment Rules of 2009:
"3. Appointment to the post of Sub-Inspector in State Excise Department shall be made either,
(a) by promotion of a suitable person on the basis of seniority subject to fitness from amongst the Constabulary who, -
(i) have completed not less than seven years regular service in that cadre;
(ii) have passed the Secondary School Certificate Examination;
(iii) possess minimum physical standard prescribed in sub-clause (iii) of Clause (c) of Rule 3; or
(b) by selection on the basis of common merit list prepared by the Commissioner from amongst the clerical cadre and Constabulary of the State Excise Department on the basis of the result of the Limited Competitive Departmental Examination and who, -
(i) possess minimum physical standards prescribed in sub-clause (iii) of clause (c) of Rule 3;
(ii) have passed the Secondary School Certificate Examination;
(iii) have minimum regular service in clerical cadre or Constabulary as per the educational qualifications as specified below:-::: Downloaded on - 09/06/2013 17:47:32 ::: 10
WP2092-4236.11 Minimum Regular : Educational Qualification.
(1) 3 years ... Possess Degree in any faculty.
(2) 5 years ... Passed the Higher Secondary School Certificate Examination.
(3) 7 years ... Passed the Secondary School Certificate Examination; or
(c) by nomination on the basis of the result of a competitive examination held by the State Level Selection Committee or any other Government Agency, appointed by the Commissioner or Government, and for admission to which a candidate shall, -
(i) not be more than the age of thirty three years;
Provided that an ex-serviceman who has served continuously in the Armed Forces for a period of not less than five years may be allowed to deduct from his age, the period of two years over and above the length of his continuous service in the Armed Forces up-to the date of release from the service;
(ii) possess a Degree;
(iii) possess the following minimum physical standards, namely:-
For Male:
Height ... minimum 165 centimeters.
Chest ... minimum 79 centimeters and above
with expansion of 5 centimeters.
For Female:
Height ... minimum 155 centimeters.
Weight ... 50 kgs."
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"4. Appointment to the post of Sub-Inspector either by promotion or by selection on the basis of Limited Competitive Departmental Examination and by nomination, shall be made in the ratio of 25:25:50.
Provided that, the posts to be filled in by selection on the basis of Limited Competitive Departmental Examination as per provisions of sub-rule (b) of Rule 3, shall be filled in from the Clerical Cadre and the Constabulary in the ratio of 20:80."
6. In the Recruitment Rules of 1992 which were brought into effect from 1.1.1993, ig for the first time, two different modes of appointment to the post of Sub-Inspector came to be provided i.e. by promotion and by nomination, in the ratio of 50:50. At the same time, the male candidates aspiring to be selected as Sub-Inspectors by nomination or by promotion from the clericals/constables, were required to have a minimum height not less than 165 centimeters and minimum deflated chest not less than 79 centimeters with expansion of minimum 5 centimeters between deflated and inflated chest measurements. For the female candidates, the minimum height was not to be less than 160 centimeters and weight not less than 50 kgs. The said physical requirement has been maintained in the Rules of 2004 as well as 2009 for the male candidates and with some variations in respect of the female candidates. The Recruitment Rules of 1993 came to be challenged before the MAT in Original Application No. 300 of 1993 and the said application was dismissed on ::: Downloaded on - 09/06/2013 17:47:32 ::: 12 WP2092-4236.11 12.7.1993. The recruitment to the post of Sub-Inspectors by both modes continued after the Recruitment Rules, 1992 were brought into force.
7. The original applicants approached the Tribunal with almost the same grievances/challenges as were raised in Original Application No.300 of 1993. The applications were allowed by some of the present petitioners as well as the State of Maharashtra and after hearing both parties, by the impugned order, the Tribunal rejected the challenge to the constitutional validity of Rule 3(c)(iii) of the Recruitment Rules, 2009. The Tribunal also observed that it could not sit in appeal over the judgment upholding the constitutional validity of Rule 3(c)(iii) especially when the identical features in Rules of 1993 were upheld by its earlier two judgments and the Rule was held to be constitutionally valid. However, the Tribunal proceeded to hold that there is a legitimate expectation to get promoted to the post of Sub-Inspector and it has been completely foreclosed to the original applicants by denying them such an opportunity forever. By referring to the decision of this Court in the case of P. Balu v/s Union of India, reported in 2009 (12) LJSOFT 151, the Tribunal observed that, a constable recruited with a height of 162 centimerters will obviously not grow in height after a given ::: Downloaded on - 09/06/2013 17:47:32 ::: 13 WP2092-4236.11 point of time and relaxation once given in physical standard must entitle the petitioner to receive further promotions. As per the decision in the case of The State of Jammu and Kashmir v/s Shri Triloki Nath Khosa & ors., reported in (1974) 1 SCC 19, the Recruitment Rules of 2009 could not have any retrospective effect and, therefore, the original applicants who were appointed during the period when the Recruitment Rules of 1958 were applicable i.e. prior to 1.1.1993 would not be of Rule 3(c)(iii) of the Recruitment Rules of 2009. There being no express clause of retrospective effect, the Rules will have to be given prospective effect and giving a retrospective effect would be contrary to the constitutional mandate under Articles 14 and 16 of the Constitution. The applicants could not be denied the only avenue of promotion as a Sub-Inspector permanently, though they have worked for more than 20 years in the constabulary. The Tribunal also noted that for the balance 26 posts, the claim of the 35 original applicants could be considered for the post of Sub-Inspector but without insisting upon the requirement of a minimum height. Hence, the Tribunal directed to consider the cases of the applicants for being promoted to the post of Sub-Inspector though their height might be between 162 to 164 centimeters along with other candidates subject to their fitness and other criteria.
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8. Mr.Apte, the learned senior counsel appearing for the petitioners in Writ Petition No.2092 of 2011, at the first instance submitted that having noted and relied upon the earlier two decisions of the Tribunal rejecting the challenge to the constitutional validity of the very same Rule or similar Rule in the Recruitment Rules of 1992, the Tribunal ought to have dismissed all the original applications challenging the validity of Rule 3(c)(iii) of the Recruitment Rules of 2009 by following the doctrine of stare decisis. If the rule challenged has been held to be valid, it was not permissible for the Tribunal to hold that the said Rule will have prospective operation in the case of the original applicants or others who were appointed prior to 1.1.1993. It was also pointed out that there was no vested right for being even considered for promotion in the Recruitment Rules of 1958 and the right of promotion to the post of Sub-Inspector was created for the first time in the Recruitment Rules of 1992. Mr.Nargolkar, the learned A.G.P. appearing for the State of Maharashtra while adopting the arguments advanced by Mr.Apte, submitted that the view taken by the Tribunal is self contradictory. On one hand the Tribunal has held that Rule 3(c)(iii) of the Recruitment Rules of 2009 has been held to be constitutionally valid and at the same time it has been held that it will not apply to the original applicants. The challenge ::: Downloaded on - 09/06/2013 17:47:32 ::: 15 WP2092-4236.11 to the same Rule in the Recruitment Rules of 1992 was rejected on the very same grounds, and hence the original applications filed were not maintainable and were required to be dismissed at the threshold. It was also pointed out that the Recruitment Rules of 1993 were in operation till the Recruitment Rules of 2004 were framed and a large number of constables/clerks came to be promoted to the post of Sub-
Inspector by following the Rules of 1992 and by implementing the condition of minimum height for each of these promotees. The original applicants did not challenge the validity of the said Rule prescribing minimum height right from 1.1.1992 till the year 2009 and this itself ought to have been held by the Tribunal as the ground sufficient to dismiss the original applications. Having accepted the amended Rule for about 18 years, the original applicants could not be allowed to turn around and take a plea that the Rule prescribing the minimum height would have only a prospective application i.e. from 1.1.993 onwards.
9. Mr.Talekar, the learned counsel for some of the original applicants, while supporting the impugned judgment of the Tribunal, relied upon the following decisions:-
(i) Food Corporation of India & ors. v/s Parashotam Das Bansal & ors., reported in (2008) 5 SCC 100;::: Downloaded on - 09/06/2013 17:47:32 ::: 16
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(ii) Union of India & anr. v/s Kartck Chandra Mondal & anr., reported in (2010) 2 SCC 422; and
(iii) Union of India & anr. v/s Hemraj SinghChauhan & ors., reported in (2010) 4 SCC 290.
He also relied upon the decision of this Court in the case of P. Balu (supra) in support of his contentions that the requirement of minimum height which was not a part of the Recruitment Rules of 1958 could not be made applicable to the original applicants as no such condition was prevalent when they were recruited and it is physically impossible for any constable/clerk after putting in more than 10 to 20 years of service to increase his height. Such a condition is impossible to achieve and, therefore, the Tribunal was justified in holding that by prescribing the requirement of minimum height the original applicants have been denied even for being considered for promotion forever i.e. till they would retire from service. For being considered for promotion is a right available to every employee and if by prescribing impossible conditions such a right is taken away, the action of the State would be arbitrary and thus violative of the right under Article 14 of the Constitution. The following observations made in the case of Council of Scientific and Industrial Research v/s K.G.S. Bhatt, ::: Downloaded on - 09/06/2013 17:47:32 ::: 17 WP2092-4236.11 reported in 1989 4 SCC 635 were also relied upon by Mr.Talekar:-
"9. .........It is often said and indeed, adroitly, an organization public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organization not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organization. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. 'The organization that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non- managerial employees and their supervisors'. There cannot be any modern management much less any career planning, manpower development, management development, etc. which is not related to a system of promotions."
He also relied upon the following observations made by the Supreme Court in the case of Food Corporation of India (supra):-
"12. When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that they fell within a category of employees excluded from promotional prospect, the superior court will have the jurisdiction to issue necessary direction."
Mr.Talekar, therefore, urged that the directions issued by the Tribunal to consider the cases of the petitioners without ::: Downloaded on - 09/06/2013 17:47:32 ::: 18 WP2092-4236.11 making the condition of minimum physical height applicable to the original applicants for the post of Sub-Inspectors. The learned counsel for other original applicants have adopted the arguments of Mr.Talekar.
10. We have given our anxious considerations to the arguments advanced by the respective parties and also the reasoning set out by the Tribunal.
ig In Original Application No.300 of 1993, the very same pleas were raised by the original applicants and while challenging the very same clause prescribing the requirement of minimum height as has been incorporated in the Recruitment Rules of 1992 and the validity of which came to be challenged in the fresh application before the Tribunal. Para 3 of the judgment of the Tribunal dated 12.7.1993 in Original Application No.300 of 1993 runs thus:-
"3. The main grievance of the petitioner seems to be that if the new rules are made applicable to them in that event, it is more clear that they would be permanently debarred/disqualified from getting the promotion to the post of Sub-Inspector either on account of lack of minimum qualification of being S.S.C. Or on account of crossing the age of 45 years or on account of height being not minimum 165 cms. According to them, the new rules can be made applicable only to those who are not seeking the recruitment that is the initial appointment either in the post of Inspector, or in the post of Sub-Inspector or in the post of Constable, etc. According to the ::: Downloaded on - 09/06/2013 17:47:32 ::: 19 WP2092-4236.11 petitioners, they having been selected on the basis of the old rules, they would not be governed by the new rules in the matter of their promotions. According to them, the new rules are extremely unreasonable, arbitrary and unjust and hence liable to be struck down being violative of Article 14 and 16 of the Constitution of India."
After hearing both parties, the Tribunal stated in para 7 of the order dated 12.7.1993 as under:-
"In our view, the petitioners have not been deprived of any vested rights, chances of promotion cannot be said to be vested right of Government servant. It is not the case of the petitioners that the benefits which they have already acquired under the old rules are being taken away by the new rules. We have already shown above that the new rules have merely affected the chances of promotion of the petitioner and chances of promotion cannot be termed as condition of service."
11. In the impugned order, the Tribunal accepted only the first part of its earlier judgment dated 12.7.1993 in Original Application No.300 of 1993 and diferred on the second part i.e. the applicability of the amended Rule. In our considered view, the Tribunal has seriously erred in holding that the Rule prescribing recruitment of minimum height for the post of Sub-Inspector would not be applicable to the original applicants as they were recruited prior to 1.1.1993, under the Rules of 1958. Undoubtedly, if the Tribunal, while passing the impugned order, did not agree with the view taken in Original Application No. 300 of 1993 ::: Downloaded on - 09/06/2013 17:47:32 ::: 20 WP2092-4236.11 regarding the retrospective applicability of the amended Rule, it was open for the Tribunal to refer the very same issue to a larger Bench and this was not done, without assigning any reason.
12. In the case of K.Nagara v/s State of A.P. reported in A.I.R. 1985 SC 551, the Supreme Court held, "It is well settled that the service rules can be as much amended, as they can be made, under the proviso to Article 309 and that the power to amend these rules carried with it the power to amend them retrospectively. The power is conferred by the proviso to Article 309 is of legislative character and is to be distinguished from an ordinary rule making power. .......The rules and amendment made under proviso to Article 309 can be altered or repealed by the legislature but until that is done, the exercise of this power cannot be challenged as lacking in authority."
While reiterating the very same view in the subsequent judgment in the case of T.R.Kapur v/s State of Haryana, reported in A.I.R. 1987 SC 415, the Supreme Court held, ".......... It may further be stated that an authority competent to lay down qualifications for promotion is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are condition of service and they can be changed retrospectively. This rule is however subject to a well recognized principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect. That is to say, ::: Downloaded on - 09/06/2013 17:47:32 ::: 21 WP2092-4236.11 there is no power to make such a rule under the proviso to Art.309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules the employees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled. In other words, such rules laying down qualification for promotion made with retrospective effect must necessarily satisfy the test of Art.14 and 16(1) of the Constitution."
13. In the backdrop of the above cited enunciations, it is clear that the Recruitment Rules of 1958 did not provide a right for promotion, inasmuch as, the same has been provided for the first time in the Recruitment Rules of 1992.
The promotion to the post of Sub-Inspector in the Recruitment Rules of 1958 was only an exception and certainly at the discretion of the authorities concerned. There was no right of being considered for promotion available to every Sub-Inspector appointed under the said rule. For the first time, in the Recruitment Rules of 1992, two different modes of appointment to the post of Sub-Inspector came to be prescribed i.e. by nomination and by promotion and in the ratio of 50:50. The original applicants were very much in service when the Recruitment Rules of 1992 were brought into force w.e.f. 1.1.1993 and some of them were also eligible for being considered for promotion to the post of Sub-
Inspector. They did not choose to challenge the validity of the Rule 3(c)(iii) of the Recruitment Rules of 1992 and the ::: Downloaded on - 09/06/2013 17:47:32 ::: 22 WP2092-4236.11 challenge raised to the similar Rule of the Rules of 2009 is hit by the doctrine of stare decisis.
14. We have been informed by Mr.Nargolkar and as per the written instructions that he received from the department, that under the Recruitment Rules of 1993 as many as 306 constable cadre and 154 of clerical cadre employees have been promoted to the post of Sub-Inspector from the year 1993 onwards and none of these promotions were ever challenged by any of the original applicants. The Scheme of the Rule prescribing the minimum height requirement incorporated w.e.f. 1.1.1993 is verbatim the same in the Recruitment Rules of 2004 as well as 2009 and if the original applicants had not challenged the very same rule till the year 1993 or 2004, they could not be permitted to do so for the first time after the Recruitment Rules of 2009 were brought into force. In fact, they had given up the challenge to the constitutional validity of the very same rule and they could not have been allowed to contend that the said rule will not be applicable to them when such a contention was rejected by the Tribunal as early as on 12.7.1993 and that view had reached its finality.
15. In the case of The State of Jammu and Kashmir v/s ::: Downloaded on - 09/06/2013 17:47:32 ::: 23 WP2092-4236.11 Shri Triloki Nath Khosa & ors., reported in (1974) 1 SCC 19, the Constitutional Bench of the Supreme Court stated, "16. ......... It is wrong to characterize the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes, undoubtedly operates on those who entered service before the framing of the rule but it operates in future, in the sense that it governs the future right of promotion of those who are already in service."..............................
"If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remain immutable and schemes of compulsory retirement in public interest ought to have foundered on the rock of retroactivity. But such is not the implication of Service Rules nor is it their true description to say that because they affect existing employees they are retrospective. It is well settled that though employment under the Government like that under any other master may have a contractual origin, the Government servant acquired a 'status' on appointment to his office. As a result, his rights and obligations are liable to be determined under statutory or constitutional authority which, for its exercise, requires no reciprocal consent. The Government can alter the terms and conditions of its employees unilaterally and though in modern times consensus in matters relating to public services is often attempted to be achieved, consent is not a pre- condition of the validity of rules of service, the contractual origin of the service notwithstanding."
The Supreme Court also stated that a pragmatic approach has to be adopted in order to harmonize the requirement of public services with the aspirations of public servants, but at the same time, the theory of classification, through imperceptible extension, which may subvert the perspective sub-merge, cannot be ignored.
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16. We are informed across the bar and which has not been disputed that the cadre of Sub-Inspector is a uniformed force and every sub-inspector is armed. The requirements of physical fitness are, therefore, imperative for such a post and if the rules prescribed for a minimum height for being eligible, for such a post cannot be said to be illegal, unreasonable or unjust. It is necessary to harmonize the requirements of public services with the rights of the feeder cadre employees for being considered for promotion. We do not agree with the Tribunal that the doctrine of legitimate expectations would be applicable in the facts of the instant case and more so, when the Recruitment Rules of 1958 did not provide for promotion, as a matter of right, to the post of Sub-Inspector. Such a right was created for the first time in the Recruitment Rules of 1992 and brought into force w.e.f.
1.1.1993. When the impugned rule i.e. Rule 3(c)(iii) has been held to be constitutionally valid, it could not be said that it would have only prospective operation, inasmuch as, it would not apply to the employees who were appointed in the feeder cadre prior to 1.1.1993. In our opinion, the Tribunal has gravely erred in holding that the Rule prescribing the minimum height requirement would be applicable only for the feeder cadre employees appointed on or after 1.1.1993.
The MAT was bound by its earlier decision in Original ::: Downloaded on - 09/06/2013 17:47:32 ::: 25 WP2092-4236.11 Application No.300 of 1993 in its entirety.
17. It was stated across the bar by Mr.Khandeparkar and Mr.Talekar, the learned counsel appearing for the original applicants that most of them have a very short tenure of few months to few years and their cases could be considered against 22 posts available. We are not impressed by these submissions and if the eligibility for a particular post like that of Sub-Inspector provides for certain eligibility qualifications, concession thereof, cannot be granted on the grounds that the aspiring employees are towards the fag end of their career, more so, when such prescriptions are about physical fitness or physical requirements.
18. In the premises, we allow these petitions and quash and set aside the impugned common judgment of the Tribunal. All the original applications in which the impugned common judgment was rendered, are hereby dismissed.
19. Rule is made absolute accordingly but without any order as to costs.
(SMT.NISHITA MHATRE, J.) (B.H.MARLAPALLE, J.) ::: Downloaded on - 09/06/2013 17:47:32 ::: 26 WP2092-4236.11 ::: Downloaded on - 09/06/2013 17:47:32 :::