2012 Supreme(Guj) 441

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Hon’ble Mr. Justice Jayant Patel
C.I. Patel
Versus
Gujarat Land Devlopment Corporation Ltd. & Anr.
Special Civil Application No. 7239 of 1996—Decided on 17/09/2012

Point in Issue :
Whether in the facts denial of promotion of petitioner on the post of Assistant Director is sustainable.

Headnote:Head Note :

       Service and Employment — Promotion — Post of Assistant Director — Denial on ground of lack of requisite qualification of graduation under the Rules — Sustainability — Finding of — It is not denied that when petitioner was appointed Field Supervisor on 17.09.1979 there were no recruitment rules — The Rules were framed in year 1982 and under the rules petitioner was promoted as Field Officer — Further promotion to the post of Assistant Director was denied to him on ground that he was not holding the requisite qualification of graduation required for the post of Assistant Director under Rules — He was though given the charge of the said post but regular promotion was denied to him — He however continued to hold charge of the post till retirement on account Court order on his stay petition — Petitioner contention is that Rules prescribing the qualification of graduation do not apply in his case because of the Rules — This contention does have force because he himself has taken first promotion of Field Officer under the rules — Once when has taken benefit under the Rules he can not contend that Rules does not apply in his case — The contention that providing requirement of graduation for the said post of Assistant Director has no rational or nexus therefore it is arbitrary is also no avail to petitioners because what should be the educational qualification for a particular post is in the domain of Expert body or employer — Court can not substitute it’s own wisdom unless it is absurd on the face of it — The requirement of degree in agriculture or Civil Engineering is does not appear to be arbitrary Violative of Articles 14 and 16 of Constitution — Another Contention that for the part of Assistant Manager (Mechanical) the requirement is diploma therefore requirement of degree for the post of Assistant Director is arbitrary can not be countenanced because duties and work required to be domain both posts are not before the Court — On mere alleging equality of the two discrimination can not also be sustained — The working of petitioner on the post can not also be of any help in absence of his regular recruitment and no vested right could be held to have accrued to him — Under the circumstances Court held that no relief can be granted to the petitioner — His both petitions stand dismissed.

       Held :

       The petitioner is one of the benefeciary of the recruitment rules inasmuch as after the rules were framed in the year 1983 when the promotion was to be given to the post of Field Officer (Soil Conservation), the petitioner got the promotion based on the recruitment Rules of 1982. Under these circumstances, once the petitioner having accepted the applicability of Rules of 1982 and having taken benefit for the post of Field Officer (Soil Conservation) as per the recruitment Rules of 1982 in the year 1983, it cannot be heard from the mouth of the petitioner that Rules of 1982 cannot be made applicable to the existing staff of the Corporation who entered the service prior to 1982 like the petitioner in the year 1979. When any rules are framed for regulating the service condition for the first time, it will have retroactive character to apply to all existing staff. Had there been any express recruitment rules providing for promotional avenues prior to 1982, one might contend any creation of vested right and such may be required to be considered separately. But in a case when there was no express recruitment rules providing for promotional avenue from the Field Supervisor (Soil Conservation), it cannot be said that any vested right of the petitioner is altered when the Corporation framed the rules in the year 1982 for the first time for regulating the promotion and direct recruitment in various post in its set up. The applicability of the rules in retroactive manner cannot be read to take away any rights of the existing employees as sought to be canvassed. [Para 10]

       What shall be the educational qualification for a particular post is the domain of the expert body or the employer and court cannot substitute its own wisdom in place of the wisdom of the employer or the expert body who has framed the rule providing the requisite qualification for a particular post unless such is absurd on the face of it, e.g., for the post of Engineering, if the qualification is that of Arts, one might gather an impression that it has no nexus to be achieved or otherwise. Whether a diploma or master degree in any discipline is required or not is normally for the expert body framing the rules or the employer concerned to decide and not for the Court to sit in place of the expert and substitute its own wisdom. [Para 12]

       It is not possible to say that the requirement for degree in agriculture/civil engineering for the post in question is arbitrary. [Para 12]

       The contention that for the post of Assistant Manager (Mechanical), the requirement is diploma in Mechanical/automobile whereas for the post of Assistant Director (Soil Conservation), the requirement is of degree in Agriculture or Civil Engineering, and therefore the same is arbitrary, also in my view cannot be countenanced for the simple reason that the duties of the Assistant Director (Soil Conservation) have not come on record. Unless a complete parity in discharging of the duty and responsibility for the post of Assistant Director (Soil Conservation) and Assistant Director (Mechanical) are satisfactorily demonstrated as common in both, it cannot be said that there is any discrimination for both the posts as sought to be canvassed.

        [Para 13]

       The fact that the petitioner has worked for a period of about more than 20 years on the post as incharge Assistant Director (Soil Conservation) cannot be read to do away with the requirement for qualification of the post in question. Holding a post by a person as incharge cannot be equated with the person who has been granted regular promotion either on temporary basis or permanent basis. It is from 1991 to 2000 one might say that the petitioner was continued by the respondent Corporation as incharge Assistant Director (Soil Conservation), but thereafter it is under the orders of the Court since the reversion or transfer to the lower post was apprehended, the interim order of this Court, it cannot be read to create any vested right in favour of the petitioner for holding the post which in any case was as in charge and not by way of regular promotion may be temporary or on permanent basis. [Para 14]

       The factum of working of the petitioner on the post in question as in charge Assistant Director (Soil Conservation) cannot be read to invest any right nor can be considered as a valid ground to render the rule as arbitrary as sought to be canvassed.

        [Para 14]

       In case of Mr. Joshi, he was not an employee of the Corporation but he was an employee of the State Government and was granted promotion by the State Government to the post of Assistant Director (Soil Conservation). It is hardly required to be stated that when any employee of the State Government is sent on deputation, he would be governed by the recruitment rules of parent department for the purpose of promotion. Nothing is brought on record to show that the recruitment rules for promotion to the higher post in the State Government were or are at par with the recruitment Rules of 1982 framed by the Corporation. Therefore, even if it is considered that the State Government granted promotion to Shri Joshi to the higher post and thereafter, Shri Joshi was absorbed on the said post, it cannot be said that the rule would be rendered arbitrary nor such circumstance can be read to invest any right with the petitioner to seek for promotion to the post of Assistant Director (Soil Conservation) for which the petitioner is not meeting with the eligibility criteria of holding degree in civil engineering. [Para 15]

       Law Laid Down :

       When any Rules are framed for regulating the service conditions for the first time it will has retroactive character to apply to all existing staff.

       Case Law Analysis :

       Abdulkarim Kureshi vs. Registrar, High Court of Gujarat of Ahmedabad, 1994(2) GLH 504 [Para 16];; Dr. Ms. O.Z. Hussain vs. Union of India, AIR 1990 SC 311 [Para 17];; Mohd. Shujat Ali vs. Union of India, AIR 1974 SC 1631 [Para 18];; N. Abdul Basheer vs. K.K. Karunakaran, AIR 1989 SC 1624 [Para 19];; T.R. Kapur vs. State of Haryana, AIR 1987 SC 415 [Para 20];; A.S. Parmar vs. State of Haryana, AIR 1984 SC 643 [Para 21].—Distinguished