(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) 1. Judgment and order dated 23.03.2010 of the learned Single Judge is impugned in this petition. The cause of petition is very succinctly put in para-1 by the learned Single Judge, which is reproduced for ready perusal:-
“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. Learned Advocate for the appellants-original petitioners vehemently argued that the respondents have caused injustice to a set of employees who were Foreman Instructors and by inclusion of three different cadres of
(i) Group Instructor (Plastic Processing Operator Trade),
(ii) Group Instructor (Computer Trade) and (iii) Junior Training Officer (Advance Vocational Training Scheme), have affected their promotional avenues to the post of Principal Class-II/ Senior Surveyor Class-II/ Technical Officer Class-II/ Training-cum-Placement Officer/ Trade Testing Officer/ Senior Training Officer.
2.1 Learned Advocate for the appellants-original petitioners submitted that earlier it was Foreman Instructor who was eligible to be promoted to the aforesaid posts, but firstly by notification dated 29.09.2008, they included the aforesaid three set of employees in the cadre of Foreman Instructor. In this regard, learned Advocate for the appellants-original petitioners invited attention of the Court to Annexure-F, page No.66 (memo of petition), wherein it is stated in Rule-2 as under:-
“2. In these rules, unless the context otherwise requires “Foreman Instructor” means a post included in the Annexure-I annexed to these rules and shall include all other post as may be declared by a General or Special order by the Government as such.”
2.2 Learned Advocate for the appellants-original petitioners also invited attention of the Court to Annexure-E, page No.59 (memo of petition), wherein Rule-2 provides as under:-
“2. Appointment to the post 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, shall be made either:-
(a) by promotion of a person of proved merit and efficiency from amongst the persons who,
(i) xxxxx
(ii) xxxxx
(iii) xxxxx
(b) by direct selection.”
2.3 Under sub-rule 2(a)(i), along with Foreman Instructor, other persons were also eligible for being considered for promotion. Now the 'ambit/scope' of Foreman Instructor is enhanced by Government notification 29.09.2008 and to that extent, the competition has increased. Learned Advocate for the appellants-original petitioners submitted that as the competition has increased, the promotional prospects of the persons are adversely affected.
3. Learned Single Judge, taking into consideration all submissions in detail, including various decisions of the Hon'ble the Apex Court, has concluded in paras-4 and 5 as under:-
“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.”
4. This Court is of the view that the reasons for which the learned Single Judge has turned down the contentions of the petitioner do not require any interference at the hands of this Court. Besides what is required to be appreciated is that the promotion to the post of Principal Class-II and other posts mentioned therein is by way of promotion of a person of proved merit
and efficiency. That being so, inclusion of any cadre cannot be said to be adversely affecting the promotional prospects of the person, represented by the appellant- original petitioner association. One can understand if the criteria for the promotion was either 'seniority' alone or 'seniority-cum-merit', then in that case, it could have been argued that the promotional avenues
/prospects stand adversely affected if more number of persons are brought in the consideration zone, but if the criteria is that of proved merit and efficiency, this possibility is ruled out and therefore, in addition to the reasons given by the learned Single Judge, contention of the appellants-original petitioners is found without any merit. In the result, the appeal fails and the same is dismissed.
(Ravi R.Tripathi, J.) *Shitole (G.B.Shah, J.)