2020 Supreme(Guj) 118

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIKRAM NATH, A.J. SHASTRI, JJ.
Rajendra Shivrambhai Patel – Appellant
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 633 of 2020
Decided on : 09-01-2020

Point of Law:
As regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. Section 110 of the J & K Constitution, which is on the same lines as Article 234 of the Constitution of India, vests in the Governor, the power to make rules for appointment of persons other than the District Judges to the Judicial Service of the State of J & K and for framing of such rules, the Governor is required to consult the Commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court.

Headnote:

Writ Petition – Constitution of India – Article 226 – Petitioners are the Veterinary Doctors presently working either as Veterinary Officer or Assistant Director in the Animal Husbandry as Class II officers or Deputy Director/Joint Director of Animal Husbandry as Class I officers. According to the petitioners, the prevailing Recruitment Rules and governing the posts. Under these for the purpose of promotion from Class-II officer to Class-I officer, minimum experience of not less than 8 years in Gujarat Animal Husbandry Class II Service was required for direct appointment as a Class I officer where a minimum educational qualification was a bachelor degree in Veterinary Science and Animal Husbandry. Rule 2(a) and Rule 3(b)(i) and (ii) prescribed such position, according to the petitioners. These posts of Veterinarians have been divided into various classes, whereby under Class II service, there are two posts; one is that of a Veterinary Officer and the other is that of an Assistant Director of Animal Husbandry. In Class I cadre, there is a post titled as Deputy Director of Animal Husbandry. The old Recruitment Rules were notified for the post of Deputy Director, prescribing the eligibility criteria for qualification and experience. According to the petitioners, new Rules have been framed effecting a change in the said criteria, which, if granted would be a minimum experience of 13 years comprising 5 years minimum experience as Veterinary Officer, for the purpose of promotion to the post of Assistant Director. Another 8 years minimum experience in the cadre of Assistant Director of Animal Husbandry (Class II) will be required for further promotion. So, this has caused an adverse effect on the promotional avenue and prospect of petitioners resulting in the filing of present petition, seeking reliefs. Held –We have seen the said decision and considered the circumstances under which the Apex Court made such proposition. Having found that circumstances and the background of facts are altogether different, we are not in a position to straightaway apply the observations pointed out as a straitjacket formula, more particularly when the recent trend and the observations contained in 2017 decisions delivered by the Apex Court has propounded, in more specific– Petition dismissed. (Para 14)

Facts of the Case:

Petitioners are the Veterinary Doctors. Posts of Veterinarians have been divided into various classes, whereby under Class II service, there are two posts; one is that of a Veterinary Officer and the other is that of an Assistant Director of Animal Husbandry. According to the petitioners, new Rules have been framed effecting a change in the said criteria, which, if granted would be a minimum experience of 13 years comprising 5 years minimum experience as Veterinary Officer, for the purpose of promotion to the post of Assistant Director. Another 8 years minimum experience in the cadre of Assistant Director of Animal Husbandry (Class II) will be required for further promotion. So, this has caused an adverse effect on the promotional avenue and prospect of petitioners resulting in the filing of present petition, seeking reliefs.

Finding of the Court:

Having found that circumstances and the background of facts are altogether different, we are not in a position to straightaway apply the observations pointed out as a straitjacket formula, more particularly when the recent trend and the observations contained in 2017 decisions delivered by the Apex Court has propounded, in more specific.

Result: Petition dismissed.