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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/-
=========================================================
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
=========================================================
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,
=========================================================
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)
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