1. As in both the matters common questions are involved and interconnected issues are there, they are being considered simultaneously.
2. The short facts are that the petitioner was appointed as Field Supervisor (Soil Conservation) on 17.09.1979 with the respondent Corporation. It is the say of the petitioner that at the relevant point of time, when he was appointed, there were no recruitment rules or no rules were framed for further promotion. On 11.05.1982, the rules were framed by the Corporation for promotion to the higher post in the respective cadre. As per rules of 1982, known as the Recruitment Rules for the post under Gujarat State Land Development Corporation Limited (hereinafter referred to as “Recruitment Rules”) there was promotional avenue to the post of Field Officer (Soil Conservation) from amongst the post of Field Supervisor (Soil Conservation) vide entry no.6 of the recruitment rules and the petitioner was accordingly given promotion to the said post of Field Officer (Soil Conservation). Thereafter, on 13.12.1991, the petitioner was given charge of Assistant Director (Soil Conservation). It is the say of the petitioner that the petitioner continued to hold the charge for the post of Assistant Director (Soil Conservation) but as the regular promotion was not given, the petitioner preferred petition being Special Civil Application No.7239/96 for the relief inter alia to quash and set aside the entry in the recruitment rules for promotion to the post of Assistant Director (Soil Conservation) vide item no.4 so far as it omits to make persons holding Diploma in Civil Engineering as eligible for the post and the petitioner has also prayed to direct the respondent Corporation to promote the petitioner to the post of Assistant Director (Soil Conservation) on the basis of his seniority and to grant consequential benefits. The petitioner thereafter by amendment inserted grounds that as such the recruitment rules would not apply since they are framed after the petitioner joined service and if they are to apply, the rules would be violative of Articles 14 and 16 of the Constitution since it takes away the vested right of the petitioner to get the promotion. The petitioner also added one ground that one Mr. B.J.Joshi who was holding diploma was promoted by the State Government to the post of Assistant Director (Soil Conservation) and thereafter, was absorbed by the Corporation and the petitioner being similarly situated, is not given the same treatment and therefore, the action is arbitrary.
3. It may be recorded that when the aforesaid petition was pending, the petitioner apprehended that he may be reverted to the post of Field Officer (Soil Conservation) and therefore, he preferred Special Civil Application No.8787/00 before this Court for the relief inter alia for restraining the respondent authorities from reverting the petitioner from the post of Assistant Director (Soil Conservation)to the lower post of Field Supervisor (Soil Conservation). This Court in the said petition, on 11.08.2000, when admitted the petition by directing to be heard with Special Civil Application No.9329/06 (the earlier matter), granted ad interim relief restraining the respondent from reverting or transferring the petitioner from the post of Assistant Director (Soil Conservation) to the lower post and it is the say of the petitioner that by virtue of the said interim order, the petitioner continued on the post of Assistant Director (Soil Conservation) until he retired on 30.06.2012 and accordingly, the petitioner has worked on the post of Assistant Director (Soil Conservation).
4. On behalf of the respondent, the affidavitin reply has been filed contending inter alia that the recruitment rules provide for the qualification of graduation which the petitioner is not holding for promotion to the post of Assistant Director (Soil Conservation). On the aspect of rational for recruitment rules providing for higher qualification of graduation, it has been stated at paras 9 and 10 as under:
“9. With regard to the averments made in para 6 of the petition, it is stated that the post of Assistant Director (Soil Conservation) is of senior level post and there is further promotion to the post of Deputy Director (Soil Conservation). It is stated that the posts of Assistant Director (Soil Conservation) and Deputy Director (Soil Conservation) are of managerial level and they are directly responsible and answerable to the Senior Officers including the Managing Director. It is stated that the respondentCorporation is transferred all the land development programmes and schemes by the State of Gujarat and it is handling even World Bank projects as well as National Water Shed Development Projects. It is stated that to handle such projects a high level/educational qualification is also required and that is why the recruitment rules are framed accordingly. It is stated that the Officers of the rank of the Assistant Director and Deputy Director are solely required to look after the schemes independently and have to participate in the policy decision of the respondent Corporation and also the attend important conferences at the State Government level as well as national level. Considering all these facts, the recruitment rules are just and in the interest of administration of the respondentCorporation. At the cost of repetition, it is stated that the Officers of the rank of the Assistant Director and Deputy Director (Soil Conservation) are given independent charges and such posts are of high responsibilities. It is stated that the Assistant Director handles subdivision independently and atleast 4 to 5 Assistant Directors are under the Deputy Director (Soil Conservation). It is stated that in this advance age of science and technology such technical posts require highly qualified officers having much higher technical skill as they have to handle very important projects of the respondent Corporation. It is denied that the said Rules and Regulations are arbitrary, unreasonable and in violation of the Articles 14 and 16 of the Constitution of India. It is stated that the employer respondent no.1 has all the rights and powers to prepare its recruitment rules to suit is administrative requirements.
10. With regard to the averments made in para 7 of the petition, it is stated that the main objectives and schemes of Gujarat State Land Development Corporation Ltd. are pertaining to the land development and soil conservation. It is stated that the nature of the job is altogether different so far as soil conservation schemes are concerned and that is why higher qualifications are required and prescribed in the recruitment rules. It is stated that as against that the nature of the job for the Assistant Director (Mechanical) is of a different nature and the recruitment rules for the said posts are prescribed accordingly. It is stated that the respondent no.1 is undertaking World Bank schemes for soil conservation apart from the Central Government Schemes as well as the State Government Schemes. It is stated that a huge amount is involved in the schemes of soil conservation and water conservation running into crores of rupees. It is stated that more than Rs.70.00 crores are provided for the year 199697.”
It is prayed that since the petitioner is not holding the necessary qualification, he cannot be promoted nor any right can be claimed by him and consequently, it is prayed that the petition deserves to be dismissed. It is also stated that he has been given in charge post and the petitioner is holding the post purely on temporary and adhoc basis. It is therefore prayed that the petition be dismissed.
5. Heard Mr.A.K. Clerk appearing for the petitioner and Mr. Chauhan for Mr.Munshaw for the respondents.
6. It is an admitted position that the petitioner is not holding the requisite qualification for the post of Assistant Director (Soil Conservation) and it is also admitted position that the petitioner is having the qualification of Diploma in Civil Engineer. Therefore, if rules are considered as it is, entry no.8 of the recruitment rules provide for entry to the post of Field Supervisor (Soil Conservation). It was the post to which the petitioner entered service for which the requisite qualification is a degree or diploma in civil Engineering with three years experience preferably in agricultural technology, but the aforesaid rules have come into force in 1982 whereas the petitioner's entry in service is in the year 1979 and therefore, the said recruitment rules so far as holding the post of Field Supervisor (Soil Conservation) is concerned, the rules may not apply or the necessary qualification as per the recruitment rules of 1982 may not have any applicability but the fact remains that the petitioner is holding Diploma in Civil Engineering and not the Degree in Civil Engineering. The recruitment rules of 1982 vide entry no.6 does provide for promotion to the post of Field Officer (Soil Conservation). The requisite qualification by way of direct recruitment is the degree in agriculture engineer or M.Sc. (agriculture) with two years experience.
The person who possesses a degree in agriculture with four years experience in the field and the feeding cadre as amongst the Field Supervisor(Soil Conservation) who have worked as Field Supervisor (Soil Conservation) in the Corporation for at least three years. The petitioner did satisfy the requirement of completion of three years at the relevant point of time when he was promoted in the year 1983.
7. The requirement for the post Assistant Director (Soil Conservation) which is mentioned in the Rule as Assistant Manager(Soil Conservation) reads as under:
“From amongst Field Officer who possess the academic qualifications for direct recruitment and who have worked as Field Officer in the technical wing of the Corporation for atleast five years.”
Therefore, the requirement for promotion or the criteria for promotion is that one has to be a Field Officer in the technical wing of the Corporation having worked for at least five years and also possess the academic qualifications for the direct recruitment. Therefore, the eligibility criteria does provide for express requirement for the academic qualifications for direct recruitment to the post. The academic qualification as per entry no.4 for the post for direct recruitment of Assistant Director (Soil Conservation) is possessing a degree in agriculture or in Agricultural/Civil Engineering.
Therefore, the degree in agriculture or civil engineering is the requisite academic qualification for the post for direct recruitment. The aforesaid shows that the petitioner could be said as meeting with the criteria for promotion to the post of Field Officer (Soil Conservation) in the year 1983 since qualification for direct recruitment to that post was not required whereas in the post in question, i.e., Assistant Director (Soil Conservation), in addition to the experience of 5 years on the post of Field Officer one has also to meet with the criteria for academic qualification for direct recruitment which as observed earlier is a degree in Agricultural or Civil Engineering.
8. Therefore, if the recruitment rules and more particularly entry no.4 is taken as it is, there cannot be any dispute on the aspects that the petitioner is not meeting with the criteria of educational requirement for promotion to the post of Assistant Director (Soil Conservation).
9. However, Mr.Clerk, learned counsel appearing for the petitioner raised the first contention that the recruitment rules of 1982 which have come into force in the year 1982 cannot be read to take away the vested right of the petitioner since he entered the service in the year 1979 and recruitment rules cannot be read to have retrospective effect. He submitted that therefore, the rules would be rendered arbitrary if they are read to curtail the promotional avenues of the existing staff who entered the service prior to 1982.
10. It is true that in the year 1979, the petitioner entered the service, but it is not the case of the petitioner nor it has come on record that in the year 1979, any recruitment rules were in force or there was any recruitment rules which provided for promotion from the post of Field Supervisor (Soil Conservation) to any higher post. Had it been a case where the recruitment rules had expressly provided at the time of entry in service of the petitioner the matter might stand on different consideration. However, when the recruitment rules are framed in the year 1982 for the first time by the Corporation for regulating the mode and manner of recruitment to the various posts including that of the direct recruitment and promotion and when it is to apply to its existing staff, the recruitment rules cannot be said to have the effect retrospectively but it can be termed as retroactive and whenever the next promotion is to be considered the same is to be regulated by the rules framed for the first time for various posts providing for direct recruitment as well as for the promotion. As such, 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. Therefore, the contention cannot be accepted.
11. Mr. Clerk, learned counsel next contended that the rules can be termed as arbitrary inasmuch as there is no rational for providing qualification of degree in agriculture or civil engineering when a person has in the feeder cadre has already worked for a longer time with diploma in civil engineering. It was submitted that if rule is read in a manner requiring the minimum qualification of civil engineering, it would curtail the promotional avenue of the petitioner for all time to come and consequently would create a situation of no promotional avenue which has been deprecated by the Apex Court in its decision in the case of Council of Scientific & Industrial Research v. K.G.S.Bhatt reported in AIR 1989 SC 1972 and in the case of O.Z. Hussain vs. Union of India reported in AIR 1990 SC 311 and also contrary to the observations made by this Court in its decision in the case of A.A. Kureshi vs. Registrar, High Court of Gujarat reported in 1994(2) GLH 504. It was therefore submitted that the rule requiring the degree in engineering for promotion to the post of Assistant Director (Soil Conservation) would be arbitrary. He also submitted that the aforesaid rule is to be tested keeping in view the fact that the petitioner has worked in the post of Incharge Assistant Director (Soil Conservation) from 1991 onwards until he retired, roughly for about 20 years and he satisfactorily discharged the duty. Nothing adverse is found while he functioned on the post in question and that itself would show that the requirement of degree in civil engineering has no nexus to be achieved nor there is any rational for such purpose. It was also submitted that for the similar promotion on the similar cadre, as that of Assistant Director which was formerly Assistant Manager (Mechanical), the requirement is diploma in Mechanical/Automobile Engineering for direct recruit as well as by promotion only whereas for the post of Assistant Director (Soil Conservation) the requirement is degree in Agriculture or Civil Engineer and therefore, it has been submitted that when the diploma for the post of Assistant Director(Mechanical) is sufficient, there is no reason why for the post of Assistant Director (Soil Conservation), degree is required. Therefore, rules can be termed as discriminatory and violative of Articles 14 and 16 of the Constitution. He also submitted that the aforesaid aspects can further be considered keeping in view the approach of the State Government in the case of Mr.B.J. Joshi. Though Shri Joshi was holding diploma, he was found fit for promotion and the State Government granted promotion to the post of Assistant Director (Soil Conservation) and ultimately, he was absorbed in the Corporation. It was submitted that under these circumstances, the requirement of degree in agriculture or civil engineering is ex facie arbitrary and it has no nexus to be achieved and therefore also, the rule would be rendered as violative of Articles 14 and 16 of the Constitution.
12. Prima facie, the contention may appear to be attractive but upon close scrutiny, it appears that 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. If the justification is to be considered, as mentioned in the above referred paragraphs no.9 and 10 in the affidavit, it has been stated that since the post is higher post requiring to deal with the various important aspects, the rules are so framed requiring the degree in agriculture or civil engineering. Therefore, as such, if Court is not to substitute its own wisdom as that of the expert body, it is not possible to say that the requirement for degree in agriculture/civil engineering for the post in question is arbitrary.
13. 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. The aforesaid is also coupled with the normal principle that the requirement for a degree or diploma for a particular post is for the employer or expert body to decide and the Court would not substitute its own opinion in place of the employer or the expert body who have framed the rules. The contention that it has no nexus to be achieved also in my view, cannot be accepted on the face of it and the reason being that the person possessing degree will have better educational abilities in comparison to the person holding diploma. Therefore, if higher qualification is provided for the higher post of Assistant Director (Soil Conservation), it could be said that it has no nexus to be achieved more particularly in light of the justification shown in paras 9 and 10 of the above referred affidavit in reply by the respondent Corporation.
14. 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. No validity of the rule can be decided on a mere ground that since X or Y has performed the duty without their being any drawbacks found, the higher qualification cannot be prescribed by the expert body or employer, as the case may be. Therefore, it appears that 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.
15. 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.
16. In the case of Council of Council of Scientific & Industrial Research (supra), the Apex Court had observed for promotional avenues. Similarly in the case of Anvarhusen Abdulkarim Kureshi vs. Registrar, High Court of Gujarat of Ahmedabad reported in 1994(2) GLH 504, this Court observed for the availability of the promotional avenue in the service, but even if such principle is considered, it is not a case where the petitioner had no promotional avenues at all for the higher post. Even in the recruitment rules of 1982, there is promotional avenue available to the petitioner from the post of Field Supervisor to the post of Field Officer and the petitioner has been granted promotion as per the said rules of 1982. Under these circumstances, both the decisions are of no help to the petitioner.
17. In the decision of the Apex Court in the case of Dr. Ms. O.Z. Hussain vs. Union of India reported in AIR 1990 SC 311, the Apex Court directed the Ministry of Science and Technology to consider the claim but in the present case, the rules are already framed and even if the direction is issued for reframing of the rules it will have the prospective effect and the petitioner would not be entitled to any benefit thereof and therefore, the said decision would be of no help to the petitioner.
18. In the decision of the Apex Court in the case of Mohd.Shujat Ali vs. Union of India reported in AIR 1974 SC 1631, the Apex Court found that there is no proper apportionment of the quota from amongst the persons holding the post of apportionment and nongraduate supervisors and therefore, the observations were made. Such is not fact situation in the present case and therefore, the decision is of no help to the petitioner in the facts and circumstances of the present case.
19. In the decision of the Apex Court in the case of N.Abdul Basheer v. K.K. Karunakaran reported in AIR 1989 SC 1624, upon which the reliance has been placed by the learned counsel for the petitioner is illfounded inasmuch in the said case, it was found by the Apex Court that since the person was promoted as Excise Inspector, there was no distinction between graduate and nongraduate Excise Inspector. Whereas in the present case, it has been stated by the respondent and the justification is shown that the post of Assistant Director (Soil Conservation) requires higher responsibility and more responsible duty to be discharged and therefore, the higher qualification has been provided.
20. In the case of T.R.Kapur vs. State of Haryana reported in AIR 1987 SC 415 upon which the reliance was placed by the learned counsel for the petitioner, is illfounded, inasmuch in the said case, there was alteration in service condition of the existing employees by the subsequent alteration in the rules which is not fact situation in the present case inasmuch as as observed earlier, there were no recruitment rules at all for promotion prior to 1982 and it came to be framed for the first time in the year 1982 and the petitioner is one of the person having taken benefit of the recruitment rules of 1982 is making complaint of the arbitrariness of the rule and therefore, the said decision cannot be made applicable to the fact and circumstances of the present case.
21. In the case of A.S. Parmar v. State of Haryana reported in AIR 1984 SC 643, upon which the reliance was placed by the learned counsel for the petitioner, the Apex Court was considering the aspects as to whether relaxation in the rules for promotion granted by the State Government was sustainable or not. The Apex Court ultimately having found that the available post in the diploma holder will be less and no equally promotional avenue is available. Such is not the fact situation of the present case nor it has been demonstrated that the persons holding diploma from amongst the post of Field Supervisor (Soil Conservation) for promotional avenues any preexisted rule had provided for better promotional avenues to the person holding diploma. Therefore, the said decision is of no help.
22. It is an admitted position that the petitioner was not given regular promotion to the post in question of Assistant Director (Soil Conservation) and he was holding the charge of the post of Assistant Director (Soil Conservation). If a person has charge of any post, no right can be said to have been created in his favour nor such person can assert as a right that he should not be revered to his parent post. As such, for all purposes, when a person is holding charge, his substantive post remains as that of original post, which is Field Officer (Soil Conservation) as in the present case. Therefore, when he was neither given promotion on temporary basis nor on permanent basis, more particularly on account of nonfulfillment of the eligibility criteria, the petitioner cannot assert right to the post of Assistant Director (Soil Conservation) as sought to be canvassed nor a mandamus can be issued directing the respondent to give promotion to the petitioner for the post of Assistant Director (Soil Conservation) even if he is not satisfying the eligibility criteria for
question, he would not be entitled to any prohibitory injunction against the respondent as sought to be canvassed to revert the petitioner from the post in question to the original post of Field Officer (Soil Conservation). It is a fact that the petitioner has retired when he was holding the post as Assistant Director (Soil Conservation) and therefore, the consequence in law might have fallen but no right can be read to the extent that the petitioner would be entitled to all benefits as that of Assistant Director (Soil Conservation) for which he was neither regularly promoted nor temporarily promoted and was holding only charge of the said post.
23. Under the circumstances, no relief deserves to be granted and both the petitions are required to be dismissed. However, it is observed that the the present dismissal would not be construed to invest any additional right in favour of the respondent Corporation to make any recovery from the petitioner of any amount or charge allowance if otherwise paid to the petitioner since he was holding the post of Assistant Director (Soil Conservation) as in charge of the said post.
24. Subject to the aforesaid observations, the petitions are dismissed. Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) *bjoy