1. These petitions have been filed by the Gujarat University challenging a common judgment and order dated 04.11.1999 passed by the Gujarat Universities Services Tribunal ('Tribunal' for short) in Applications No.38 of 1999 and 39 of 1999.
2. The brief facts may be noted at the out set:-
1. Two sets of employees of the University, who are respondents in this petition had filed two separate applications being Application Nos.38 of 1999 and 39 of 1999 before the Tribunal. These respondents belongs to the cadre of Typist. Their case in their applications before the Tribunal was that as per the Rules of the University, they were eligible for being considered for promotion for the post of Senior Clerk alongwith other employees of the University, belonging to other cadres which together formed feeder cadre for promotion to the post of Senior Clerk. Since the University was not considering them eligible for promotion to the post, the respondents filed above mentioned applications before the Tribunal. In the application, they prayed for direction to consider their cases for promotion on the basis of their seniority. They also prayed for permanent injunction against promotion of their, ignoring them.
2. The applicants before the Tribunal based their case primarily on the strength of a resolution of the University dated 16/24.06.1979, under which for promotion to the post of Senior Clerk, the employees belonging to the cadre of Junior Clerk, Clerk-Typist, Typist and Laboratory Assistant were held eligible.
3. The University opposed such applications before the Tribunal. Their main case was that all the applicants belong to the cadre of Typist. They were recruited after 16.06.1979 and they were not eligible for being considered for promotion to the post of Senior Clerk, since they held the post of Typist. They were not designated as Assistant(Type). The University also urged that the posts of the Junior Clerk and Typist are not interchangeable. The contention of the University was, merely because both the posts carry identical pay-scale, Typists cannot seek promotion to the post of Senior Clerk without any reference to educational qualification.
4. The Tribunal, however, by the impugned judgment repelled all the contentions, raised by the University. The Tribunal was of the opinion that as per the Rules of the University, Typists were eligible for promotion to the post of Senior Clerk. The Tribunal, therefore, directed that cases of the applicants, who were holding the post of the Typist be considered for promotion to the post of Senior Clerk, if otherwise eligible. The Tribunal, further directed the University to prepare a common seniority list of Junior Clerks and Typists on the basis of their continuous officiation and considering the length of their services in the respective posts of Junior Clerk or Typist as the case may be and to finalize the same in accordance with law. After doing so, cases of the applicants would be considered for promotion to the post of Senior Clerk. The University has challenged this judgment in these petitions.
5. At the outset, I record that the University had questioned the very eligibility of the Typist to seek promotion to the post of Senior Clerk before me. Learned senior counsel Mr.S.N.Shelat appearing with learned counsel Ms.Nanavaty for the University focused his arguments, mainly on the requirements of educational qualifications for a Typist to seek such promotion to the post of Senior Clerk. Learned counsel invited my attention to the eligibility criteria, laid down by the University for the post of Junior Clerk and Typist from time to time. It was pointed out that previously educational qualification, required for appointment to the post of Junior Clerk was SSC. In case of Typist also, it was SSC, but with additional requirement of having typing speed of 30 w.p.m. Such eligibility criteria were provided in the resolution dated 03.06.1961. Subsequently, in the resolution dated 11/12.02.1971, the minimum educational qualification for the post of Junior Clerk was raised to graduation. The educational qualification for the post of Typist was revised by the resolution dated 02.08.1981 to that of HSC, substituting previous educational qualification of SSC, required for this post.
6. My attention was also drawn to the resolution dated 16.06.1979, under which promotional avenues of different posts were described. The said resolution prescribed that for promotion to the post of Senior Clerk, the employees belonging to the following cadres would be considered:-
1. Junior Clerk
2. Clerk-Typist
3. Typist
4. Laboratory Assistant
7. The side note to this promotional post of Senior Clerk, reads as under:-
“Those, who are desirous of coming over to this channel shall have to opt within 15 days. If ultimately promoted to the post of Senior Clerk, he will not be entitled to personal pay and typing allowance. This will apply only to existing employees.”
8. In the item No.6 of the said resolution, for promotion to the post of Senior Typist, only Typists were held eligible.
9. On the basis of said rule position, learned senior counsel submitted that the Typists, who do not have minimum educational qualification of graduation would not be eligible for promotion to the post of Senior Clerk. His prime contention was, when the post of Junior Clerk carries minimum educational qualification of graduation, it would be irrational to imagine that the Typist could be promoted to the post of Senior Clerk, without having such minimum educational qualification, prescribed for the post of Junior Clerk. In support of his contention, he relied on the decision in case of R.S.E.B. Accountants Association, Jaipur Vs. Rajasthan State Electricity Board & Anr. reported in AIR 1997 SC 882. This was, however, a case where the Apex Court held that for promotion, it would be open for the employer to classify employees on the basis of educational qualification. In my opinion, there is no direct bearing of the above judgment on the controversy on hand.
10. Learned advocate Mr.Yagnik for the employees of the University, who belong to the cadre of Typist submitted that rule position is amply clear; that Typist is one of the feeder cadres for the post of Senior Clerk. It was thereafter, not open to introduce educational qualifications, which are prescribed for the post of Junior Clerk to disqualify the Typists for promotion to the post of Senior Clerk.
11. Having heard learned counsel for the parties and having perused the documents on record, following position emerges:-
1. Previously the post of Typist and Clerk both required minimum educational qualification of SSC. This position, however, changed. By resolution dated 11.02.1971, minimum educational qualification for the post of Junior Clerk was increased to graduation. Similarly, revision in the prescribed minimum educational qualification for the post of Typist was introduced by resolution dated 02.08.1981 and it was increased to HSC, substituting previous educational qualification of SSC.
2. In the year 1979, the University prescribed the promotional avenues for the post of Senior Clerk from different cadres. Four different cadres were shown as feeder cadres. One of them was Junior Clerk another being Typist. The Typist had separate other avenue of promotion to the post of Senior Typist. The side note provided that those employees, who wanted to be considered for promotion to the post of Senior Clerk would have to make a choice. It was further provided that if ultimately promoted to the post of Senior Clerk, the employee would not get the benefit of personal pay or typing allowance. It was also added that this would only apply to existing employees.
3. Implication of the resolution dated 16.06.1979 was amply clear i.e. person belonging to the cadre of Typist had two avenues of promotion i.e. to the post of Senior Typist, which was promotional post exclusively available to the cadre of Typists or to the post of Senior Clerk alongwith other employees belonging to other cadres. The employees had to opt for being considered for either of two cadres. The Rules never provided that only those Typists, who have graduated can seek promotion to the post of Senior Clerk. To read such a requirement in the Rules, as is suggested by the counsel for the University, in my opinion, is wholly impermissible. The minimum educational qualification of graduation is prescribed for recruiting Junior Clerks. Such Junior Clerk hold independent right to be considered for promotion to the post of Senior Clerk. The Typist whose minimum educational qualification was HSC with minimum prescribed typing speeding was also considering eligible for promotion to the post of Senior Clerk. One cannot import the educational qualification for the post of Junior Clerk in the post of Typist for considering his eligibility for promotion to the post of Senior Clerk.
12. Whenever, the University wanted a different consideration to apply, the same as provided in the resolution dated 16/28.06.1979. For example, for the post of Senior Clerk, all Junior Clerks were held eligible for promotion. Such Junior Clerk may be holding qualification of graduation, if he was appointed, after the revision in the eligibility criteria in the resolution dated 11.02.1971 or may even be an under-graduate having been appointed prior to such date, when minimum educational qualification was SSC. However, the Junior Clerk was provided an additional promotional avenue to the post of Assistant Cashier. For such promotion the prescription under the Rule is that of Junior Clerk with B.Com. Degree meaning thereby only those Junior Clerks, who hold degree in graduation and had such graduation is in Commerce, are held eligible for promotion to the post of Assistant Cashier.
13. In case of Typist no such distinction has been drawn. A Typist is held eligible to be promoted to the post of Senior Typist. He also forms part of the feeder cadre for promotion to the post of Senior Clerk alongwith other cadres. In my view, therefore, the University cannot consider those Typists, who did not hold educational qualification of graduate as ineligibility for promotion to the post of Senior Clerk. The distinction sought to be drawn, therefore, cannot be accepted.
14. The side note in the resolution dated 16/28.06.1979 does provide that “this would apply only to existing employees”. On this basis before the Tribunal, the University contended that the applicants having been recruited after the year 1979, would not be eligible for promotion to the post of Senior Clerk irrespective of their educational qualification. No such stand was taken before me by the University. In any case to read such a rider in the eligibility criteria would be arbitrary and violative of the Articles 14 and 16 of the Constitution of India. No employer without any valid basis, can provide that only those persons recruited prior to a cut of date, would be eligible for promotion for next higher grade even though, they may have same educational qualification, pay-scale, duty and responsibilities as in the case of those recruited earlier. However, I need not dilate on this aspect as no serious contention has been raised in this regard.
15. In the result, the petitions are dismissed. The judgment of the Tribunal is confirmed.
..mitesh..
[AKIL KURESHI, J.]