Vacancies arising under older rules are not necessarily filled by those rules when new recruitment rules have been promulgated, barring vested rights.

JUDGMENT :

A.S. SUPEHIA, J.

1. The present letters patent appeal is directed against the order dated 27.12.2019 passed in the captioned writ petition being special civil application no.3524 of 2019 filed by the respondent No.2 – original petitioner seeking directions to promote her to the post of registrar, industrial court.

BRIEF FACTS :

2. The brief facts leading to the filing of the present Letters Patent Appeal are as under:

2.1. The respondent No.2 – original petitioner was serving as a Superintendent with effect from 01.09.2012 and thereafter, she was transferred from the Industrial Court, Ahmedabad to Industrial Court, Surat on 07.06.2016.

2.2. On 01.12.2017, the post of Registrar, Industrial Court, Ahmedabad fell vacant.

2.3. In view of the vacancy, the appellant No.2 – President, Industrial Court, Ahmedabad, forwarded a proposal to the appellant – High Court of Gujarat for consideration of promotion of the respondent No.2 on the post of Registrar, Industrial Court, Ahmedabad.

2.4 It appears that thereafter, since nothing was done on the proposal sent by the President, Industrial Court, Ahmedabad the respondent No.2 filed an application under the Right to Information Act, 2005 inquiring about the said proposal. A communication dated 15.04/05.2018 was addressed by the High Court to the President, Industrial Court intimating that the proposal dated 12.01.2018 was returned by the High Court in view of the promulgation of the new Rules i.e. “the Industrial Courts and Labour Courts (Recruitment and Conditions of Services of Non-Judicial Officer and Staff) Rules, 2018”. The High Court subsequently rejected the proposal in view of the aforesaid Rules by informing that the incumbent for the post of Registrar in the Industrial Courts and Labour Courts should be a law graduate and shall have five-years experience in the cadre of Registrar, Labour Court and satisfy the combined experience of eight years as Registrar, Labour Court and Bench Clerk, Grade-I.

2.5. Such a response gave a rise to filing of the captioned writ petition by the respondent No.2. Learned Single Judge has allowed the same by following the order dated 24.06.2019 in Special Civil Application No. 6231 of 2018 in the case of Mayank Bhagvandas Shethwala vs. High Court of Gujarat . It is observed that that when a proposal to promote the petitioner (respondent No.2) was made by the President, Industrial Court to the High Court on 12.01.2018, a vacancy had already arisen, and the respondent No.2 was fully eligible as per the old Rules and since the new Rules came into force, subsequently on 19.04.2018, the respondent No.2 could not have been denied the promotion.

SUBMISSIONS ON BEHALF OF THE HIGH COURT :

3. Mr. G.M. Joshi, learned Senior Advocate assisted by Mr. Chintan N. Desai, learned advocate for the appellants, at the outset has submitted that the learned Single Judge has allowed the writ petition primarily by placing reliance on the judgment rendered in the case of Mayank Bhagvandas Shethwala (supra). While inviting the attention of this Court to the facts of the said case, it is submitted that the learned Single Judge fell in error in applying the judgment rendered in the case of Mayank Bhagvandas Shethwala (supra). It is submitted that in the said case, Shri Shethwala was already considered by the department for Promotion Committee thrice and he was selected by the Advisory Committee, after undertaking interview. It is submitted that when the third time, Shri Shethwala was recommended for promotion, the High Court, on its administrative side, had referred the matter to the Committee, as there was some discre