Heard learned Advocate Mr. HS Mulia for petitioners and Mr. Anand L. Sharma, learned AGP for respondent State Authority.
I have considered submissions made by both learned Advocates. Question raised and involved in this petition would require detailed examination. Hence, Rule. Mr. Anand L. Sharma, learned AGP for State Authority waives service of notice of rule on behalf of respondent State Authority. In peculiar facts and circumstances of case and with consent of both learned advocates, matter is taken up for final hearing today.
Learned Advocate Mr. HS Mulia appearing on behalf of petitioners submits that identical question has been examined by this Court in Special Civil Application No. 4400 of 2010 in case of Vikramsinh Arjunsinh Rathod & 126 v/s. Special Secretary Narmada Irrigation & Water Supply & 3, on 30th April, 2010. This petition is also involving same question to be examined by this Court. According to learned Advocate Mr. Mulia, petitioners were promoted as Work Charge Work Assistant in pay scale of Rs.4000-100-6000 in pursuance to order dated 25th February, 2009, page 22, annexure E with effect from date on which completed ten years, on certain terms and conditions. He submitted that aforesaid order dated 25.2.2009 was passed by respondent State Authority on the basis of notification dated 29th January, 1990 and it was decided that amended notification dated 5th October, 2006 is not made applicable to employees, those who have completed 10 years service prior to issuance of amended notification dated 5th October, 2006. Aforesaid promotion orders which were given in favour of petitioners as referred to above have been cancelled by order dated 26th March, 2010 relying upon amended notification dated 5th October, 2006. He submitted that aforesaid amended notification dated 5th October, 2006 is not having retrospective effect because, before that, petitioners are entitled to promotion after completion of 10 years service from date of joining in lower post, therefore, moment, 10 years service from date of appointment on lower post is completed by petitioners, from that date onward, petitioners are entitled for promotion in the post of Work Assistant and for that, concerned Superintending Engineers have been given power to grant such promotions in post of Work Assistant. Accordingly, aforesaid orders have been issued by respondent authority concerned. Aforesaid orders of promotion in pursuance of order dated 25.2.2009 page 22 annexure E have been cancelled by order dated 26th March, 2010 without giving any opportunity of being heard to petitioners. This amendment page 27 dt.5.10.06 in notification dated 29th January, 1990 is having no retrospective effect but it applies to employees those who have completed ten years service subsequent to notification dated 5th October, 2006. This question is already decided by this court in Special Civil Application NO. 4400 of 2010 on 30th April, 2010, therefore, he submitted that in aforesaid petition, this court has considered affidavit in reply filed by State Authority. He relied upon aforesaid decision given by this court on the same subject and question dated 30th April, 2010. Therefore, relevant discussion made by this court in para 3 to 16 of judgment dated 30th April, 2010 in Special Civil Application NO.4400 of 2010, is reproduced as under:
3. Learned AGP Ms. Mathur for respondents on being supplied copy of present petition by learned Advocate Mr.HS Mulia for petitioners, has filed affidavit in reply of Shri Arvind S.Bhavsar Under Secretary, Narmada Water Resources, Water Supply and Kalpsar Department, Sachivalaya, Gandhinagar on behalf of respondents.
Same has been taken on record along with annexures.
4. Brief facts of the present petition are to the effect that on 21.9.1989, it was decided by respondents to create new cadre of Work Assistant converting and consolidating post of Clerk, Mistri and Canal Inspector. On 24.1.1990, Work Assistant Recruitment Rules, 1990 came into effect wherein it is provided that Clerk, Mistri and Canal Inspector who have worked for more than ten years continuously shall be promoted as Work Assistant Class III and eligible candidates working Clerk, Mistri and Canal Inspector may be appointed on the post of Work Assistant. On 23.10.2008/November, 2008, petitioners were promoted as Work Assistant with effect from date on completion of ten years from date of joining in service. On 22.12.2008, Annexure E page 66 above referred office orders of promotion of petitioners are cancelled on the basis of resolution dated 5.10.2006. On 16.2.2009, respondent no.2 has held that as the petitioners have completed ten years of continuous service in the year 1998, provisions of resolution dated 5.10.2006 are not applicable to petitioners. According to petitioners, in view of letter dated 16.2.2009, new office order of promotion came to be issued upon petitioners, dated 17.2.2009. On 2.3.2010, respondent No.3 cancelled letter dated 16.2.2009 by observing that the matter is under consideration before respondent no.1 and unless it is decided whether the provisions of resolution dated 5.10.2006 are applicable to petitioners or not, no promotion can be given to petitioners. According to petitioners, resolution dated 5.10.2006 does not have retrospective effect and no notice as required under section 9A of the ID Act, 1947 has been given, same is amounting to unfair labour practice and changing existing condition of service and, therefore, there is need to prefer present petitions.
5. Along with present petition, notification dated 24.1.1990 is annexed. Before that, Government Resolution dated 21.9.1989 has been annexed as annexure A, page 20 where it is decided to create a cadre of Work Assistants from Clerk, Mistry and Canal Inspector and now onward in the post of Clerk, Mistri and Canal Inspector, no recruitment is to be carried out and all the posts has been created in the cadre of Work Assistant. Thereafter, it has been decided that as per new Recruitment Rules, post of Work Assistant is to be filled up and pay scale is to be fixed Rs.1200-2040 and thereafter, on 24.1.1990-, under Article 309 of Constitution of India, notification has been issued by State Government. Item NO.2 thereof being material, is quoted as under:
2. Appointment to the post of Work Assistant Class III in the subordinate service of Water Resources Department shall be made either -
(a) by Promotion or a person of proved merit and efficiency from amongst the persons working as Karkoon, Mistry and Canal Inspector, who has put in at least ten years continuous service on the said post in the Water Resources Department, or
(b) by direct selection.
6. Another resolution dated 29th January, 1990 Annexure C has been issued by State Government and according to aforesaid resolution, it was decided that the posts of clerk, mistry and canal inspector in the scale of Rs.950-1500 is to be filled up as per recruitment rules in the post of work assistant and such post is to be converted in the post of work assistant. Persons, those who are working in the post of clerk, mistry and canal inspector are entitled for appointment in the post of work assistant if they have completed ten years service in the post of clerk, mistri and canal inspector and have to complete training for one year successfully and after considering merits and suitability of such persons, according to seniority, they will be given appointment. This post of work assistant is not to be filled up on hangami basis but this post is to be filled up by way of appointment. Powers have been given to the Superintending Engineer for giving promotion to the post of work assistant. Thereafter, office order No. 269 annexure D page 28 has been issued in favour of certain employees including petitioners, those who have completed ten years service, and they have been promoted in the post of work charge work assistant. In aforesaid order, condition incorporated was minimum ten years continuous service and required to undergo prescribed training successfully within one year and from amongst clerks/mistry/canal inspectors, having proved merits and efficiency will be eligible for promotion as work assistant in order of their seniority. Said order was passed on 20th October, 2008 by Superintending Engineer, Kadana Yojna Circle, Divda Colony. Another office order No. 274 of 2008 page 32 has also been issued by same Superintending Engineer on 23rd October 2008. Page 35 office order No. 275 of 2008 is also of same date passed by same Superintending Engineer on 23rd October, 2008. Page 39 is office order No. 276 of 2008 issued by same Superintending Engineer dated 23rd October, 2008 in favour of employees including petitioners. Similarly office order no. 277 of 2008 is also issued on the same date by same superintending engineer and page 45 office order no. 27 of 2008 is also issued in favour of petitioners as well as other concerned employees those who have been given promotion on the post of work assistant by same superintending engineer. Similarly, office order no. 279, 280, 281, 281 283 and 296 of 2008 are issued by same superintending engineer and by letter dated 22nd December, 2008, it has been decided that the appointment orders which have been referred to wherein promotion has been given on the post of work assistant after completion of ten years service are cancelled by Superintending Engineer, Kadana Yojna Circle because such promotion order is to be given after completion of prescribed training successfully by such employee. On 16th February, 2009, one letter was issued by Under Secretary, Narmada Water Resources, Water Supply and Kalpasar Department addressed to Superintending Engineer, Kadana Yojna Circle, Divda Colony having the subject of conversion of the posts of Clerk/Mistry/Canal Inspector in the post of Work Assistant wherein it was stated that order which was earlier issued by Superintending Engineer, Kadana Yojna Circle is legal and valid and having powers to issue such order as per resolution dated 29th January, 1990 and amendment made in circular dated 5.10.2006 is not applicable and, therefore, instructions which were given on 22nd December, 2008 page 66 has been declared cancelled by Under Secretary. Thereafter, fresh office order no.25 of 2009 has been issued by Superintending Engineer, Kadana Yojna Circle and continuing promotion on the basis of receiving instructions from Under Secretary dated 16.2.2009 by letter dated 17.2.2009. Thereafter, on 2nd March, 2010, one Deputy Secretary of same department has come to conclusion that whether amendment made on 5th October, 2006 is applicable to resolution dated 21.9.1989 or not, for that, opinion from General Administration Department is required, therefore, whatever instructions issued by letter dated 16th February, 2009 has been kept in abeyance. Ultimately, as per revised resolution dated 5.10.2006 this amendment is made in notification dated 29th January, 1990 where it has been decided incorporating section 2 sub section (1) that now onward promotion in the post of work assistant is to be given only after successful completion of prescribed training. In said amended resolution dated 5.10.2006, reference of resolution of said department of even number dated 29.1.1990 was made and the provisions contained in para 2(2) of resolution dated 29.1.1990 clerk/mistry/canal inspector shall have to successfully complete training prescribed for work assistant latest within one year . In said provisions of para 2(2) of Resolution dated 29.1.1990, the word henceforth has been inserted by corrigendum resolution dated 5.10.2006. It has been decided by letter dated 31st March, 2006 that the requirement of completion of training within one year on receiving appointment as work assistant contained in resolution dated 29.1.1990 now stands cancelled and it has then further been provided that now, only those who have completed training shall have to be given appointment.
7. Learned Advocate Mr. Mulia for petitioners submitted that for training, petitioners are prepared to undergo training and for that, petitioners are not having objection. Real objection is that promotion order which were issued in their favour in the year 2008 after completion of continuous service of ten years from 1988 to 1998, they are entitled for promotion in the post of work assistant and whatever amendment made as per Government Resolution dated 5th October, 2006 requiring completion of successful training within one year is not applicable to case of petitioners and order of their promotion are cancelled by State Authority without giving any opportunity of hearing to the petitioners.
8. Ms. Shachi Mathur, learned AGP for respondent State Authority has relied upon GR dated 26th March, 2010 and affidavit in reply filed by Under Secretary. She has relied upon para 6 to 9 thereof which are quoted as under:
6. I say and submit that the State Government has very specifically cleared in the GR dated 5.10.06 that no promotion from the post of Work Charge Clerk to Work Charge Assistant can be given without completion of the training and passing the examination prescribed as per notification dated 18.11.91 which has been replaced by Notification dated 31.03.2009. A copy of the Notification dated 18.4.91 and Notification dated 31.03.2009 are annexed herewith as ANNEXURE-R-1 (COLLY) to this affidavit in reply.
It is pertinent to note that so far as interpretation with regard to recruitment rules and examination policy is concerned, the General Administration Department is the final authority to give opinion for. Moreover no relaxation can be given in any such prevailing rules, without consulting the General Administrative Department, no such relaxation can be given for any of the promotion. I state that the Department came to know about the cases wherein relaxation with regard to the policy framed by the Government dated 5.10.2006 was given without obtaining approval at the appropriate level as well as without consulting the General Administrative Department. Hence, the Department moved the proposal to consult the General Administrative Department. Therefore, by GR dated 26.3.2010 No. WCE-102009 470-49-A, such kind of ultra virus instructions/orders issued by Superintending Engineer or at the Department Level have been quashed. A copy of the noting of the consultation and GR dated 26.03.2010 are annexed herewith and marked as ANNEXURE-R-II (COLLY) to this affidavit in reply.
7. I say and submit that there is no question of unfair labour practice arise as the State Government has quashed the wrong and ultra virus communications/orders in the interest of justice.
8. I say and submit that the order passed by the respondents relates with the Government Policy of Promotion, canceling of ultra virus instructions/orders cannot be related with section 9 of ID Act. Moreover, the State Government has decided this in furtherance of communication dated 2.3.2010 and GR dated 26.3.2010 is issued hence this has become anfractuous. This fact was not brought by the petitioner before this Hon'ble Court.
9. I say and submit that if the petitioners have any grievance with regard to the promotion, the petitioner can file representation for their redressal.
9. Learned AGP Ms. Mathur has, relying upon Government Notification dated 18th April, 1991, submitted that as per said notification, candidate shall have to undergo training only once and it is not necessary to undergo training again for eligibility for appearing in subsequent examination.
10. As against that, it is submitted by learned Advocate Mr. HS Mulia for petitioners that this notification dated 18th April, 1991 is applicable in case of direct appointment to be made in the post of work assistant from the cadre of clerk/mistry/canal inspector of Narmada & Water Resources Department and working in Sardar Sarovar Narmada Nigam Limited, Gandhinagar on deputation. He submitted that this notification is not made applicable in case of promotion, if it is given from the post of clerk/mistry/canal inspector, those who have completed ten years of service.
11. Learned AGP Ms. Mathur relied upon notification dated 31st March, 2009 and submitted that as per said notification, the Gujarat Work Assistant, (Departmental Examination) Rules, 2009 have been framed which shall apply to persons, those who are appointed as Karkoons, Mistries and Canal Inspectors, in the subordinate service of under the offices of the Superintending Engineers, under the Narmada Water Resources Water Supply and Kalpsar Department. In the said rules, training and examination has been prescribed which is to be taken by the Superintending Engineer. Every eligible persons shall undergo training and pass examination within three years of joining service. He shall be eligible to attend training and appear in examination after completion of one years continuous service in the feeder cadre as specified in sub rule (2) of rule 1 Learned Advocate Mr. Mulia submitted that this notification dated 31st March, 2009 whereby the Gujarat Work Assistant (Departmental Examination) Rules, 2009 have been framed is not applicable in case of present petitioners because petitioners have been promoted on the post in question on the basis of Government Notification dated 24th January, 1990 where such training was not necessary for promoting such employees namely clerks/mistries/canal inspectors who have completed more than ten years service. Learned AGP Ms. Mathur relied upon Annexure R-II page 104 where this question has been examined by the department and wherein it has been decided that if any person has been appointed or promoted subsequent to amendment made on 5th October, 2006, in that case only necessary training is required to be completed but if any appointment or promotion covering period prior to 5th October, 2006, then whatever earlier provisions were made are applicable. This decision is taken by different departments to remove anomaly which were arising because of amendment made by resolution dated 5th October, 2006. In the said decision, specific question has been decided that if any employee has been appointed prior to 5th October, 2006, then, old provisions would apply and accordingly department has to work out cases of promotion or appointment made on the post of work assistant. Relying upon this note of the department at page 106, it is submitted by learned Advocate Mr. Mulia that each petitioner has completed ten years service in the year 1998, so, they are entitled for such promotion on the basis of Government notification dated 24th January, 1990 and on that occasion, there was no rule requiring to complete training as amended by resolution dated 5th October, 2006. He submitted that in case of petitioners, order of promotion has been cancelled only on the ground that as per amendment made in resolution dated 5th October, 2006, training has not been completed by petitioners within one year which is, according to him, contrary to decision at page 106 taken by the State Government. He submitted that the promotion for which petitioners become entitled and eligible in the year 1998 was given to petitioners in the year 2008after completion of ten years service from 1988 to 1998 and, therefore also, resolution dated 5th October, 2006 is not applicable to petitioners because at the relevant time when they become entitled and eligible for such promotion as per notification dated 24.1.1990, at that time, there was no requirement of such training made and, therefore, merely because promotion orders are issued in the year 2008, that does not mean that the resolution dated 5.10.2006 is applicable to petitioners.
12. I have considered notification dated 26th March, 2010. It has been issued on the basis of decision taken by the State Government at page 106. Even according to Government notification dated 26th March, 2010 also suggests that the promotion orders which are issued subsequent to dated 5th October, 2006 where those who have not completed training successfully, their orders are cancelled. However, submission of learned Advocate Mr. Mulia is that petitioners have not become eligible for such promotion subsequent to amendment made as per resolution dated 5th October, 2006 but they were already entitled and eligible for such promotion much prior to amendment made as per resolution dated 5th October, 2006 as per Government notification dated 24th January, 1990 page 23 which has been referred to above.
13. Considering submissions made by both learned advocates, it has to be considered by this Court that each petitioner has completed more than ten years service from 1988 to 1998 and as per Government Notification dated 24th January, 1990, which was also issued under Article 309 of the Constitution of India, in that, rule (2) relates to appointment to the post of Work Assistant, Class III in the subordinate service of the Water Resources Department and clause (a) relates to promotion of a person of proved merit and efficiency from amongst the persons working as Karkoon, Mistry and Canal Inspector who has put in at least ten years continuous service on the said post in the Water Resources Department whereas clause (b) thereof relates to appointment on such posts by way of direct selection. Therefore, as per notification dated 24th January, 1990, each petitioner has satisfied aforesaid condition mentioned in rule 2 as referred to above and accordingly, order was issued by department in the year 2008 giving promotion to each petitioner with effect from the year 1998, therefore, merely because the order of promotion is issued in the year 2008, on that ground alone, resolution dated 5th October, 2006 cannot be made applicable because petitioners were entitled and eligible for such promotion in the year 1998 and for one or the other reason, if order for such promotion issued in the year 2008, on that ground, GR dated 5.10.2006 cannot be made applicable, therefore, State Government has taken a contrary decision to cancel promotion order which was issued in favour of petitioner only on the ground by relying upon impugned notification dated 5th October, 2006. Impugned notification cannot be having retrospective effect unless it is specified in it in clear terms. Considering impugned notification dated 5th October, 2006, it does not appear that any such clarification has been made. So, in case where persons entitled for promotion on the basis of Government notification dated 24th January, 1990, it is legal obligation upon respondents State Authority to give such promotion to such employees on the basis of Notification dated 24th January, 1990. At that occasion, impugned Amendment dated 5th October, 2006 cannot come in way of such petitioners, those who have already completed ten years service from 1988 to 1998 much prior to issuance of resolution dated 5th October, 2006 and strictly covered by Government notification dated 24th January, 1990 and, therefore, decision of respondents to cancel promotion order of petitioners relying upon notification dated 5th October, 2006 is contrary to law and also contrary to the principles of natural justice because at the time of canceling promotion order, no opportunity of hearing was given by respondents to petitioners. Page 106 note has been produced by State Government. It also makes it clear that whatever appointments/promotions made prior to 5th October, 2006, it has to be governed by prior/previous conditions and not governed by subsequent condition as per resolution dated 5th October, 2006.
14 In case of present petitioners, date of order of promotion is not relevant but relevant is the date on which they are entitled for promotion after completion of 10 years service as per Government Notification dated 24th January, 1990 which was not given to them on the date of their entitlement after completion of ten years service but it was ordered in the year 2008 but with retrospective effect, from date of their entitlement in the year 1998, therefore, in case of petitioners, promotion orders were given with retrospective effect from 1998 and, therefore, impugned Government Amendment dated 5th October, 2006 is not applicable to case of petitioners and therefore, decision of respondents to cancel promotion orders of petitioners on the basis of said Amendment dated 5th October, 2006 is required to be quashed and set aside while declaring that the Government resolution dated 5th October, 2006 is not applicable to petitioners case as it is not having retrospective effect and it is required to be directed to respondents restore order of promotion of petitioners issued in October/November, 2008 with all benefits as if orders of cancellation of their promotions were not passed while clarifying that if training is required to be completed by petitioners can be sent for such training by respondents as mentioned in dated 5th October, 2006 but because of that, promotion orders of petitioners cannot be cancelled which were granted to them with retrospective effect in the year 1998 on the basis of Government notification dated 24th January, 1990. Thus, it is open for respondents to send petitioners to complete training as required by impugned Amendment dated 5th October, 2006 during continuation of promotion of petitioners on the post of Work Assistant but impugned Amendment is not having retrospective effect which can disturb vested right of promotion of petitioners created on the basis of Government notification dated 24th January, 1990.
15. It is necessary to mention that the correct interpretation of dated 5th October, 2006 is that the employees, those who are eligible for promotion or appointment subsequent to 5th October, 2006, then only, conditions incorporated in dated 5th October, 2006 would apply and required to be implemented,meaning thereby, if any employee has completed 10 years service continuously subsequent to issuance of dated 5th October, 2006,then, he has to comply with conditions incorporated in said but it will not apply to persons or employees those who have completed 10 years service prior to Government Resolution dated 5th October, 2006.
16. In case of D.
Boopalan & Ors. v. Madras Metropolitan WSS Board & Ors., 2007(8) Supreme 101, apex court has observed as under in para 15 and 15:
15. In support of his aforesaid contention Mr. Iyer, referred to the decision of this Court in T.R. Kapoor & ors. vs. State of Haryana 1986 (Suppl.) SCC 584, wherein this Court held that since right to be considered for promotion is a condition of service, benefits acquired under Rules made under the proviso to Article 309 regarding qualifications for promotion could not be taken away retrospectively by an amendment to the disadvantage of a Government servant. It was also emphasized that although under the proviso to Article 309 the Rules could be amended retrospectively, benefits already acquired under the existing Rules could not be taken away. Mr. Iyer also referred to the decision of this Court in P.D.Aggarwal and others vs. State of U.P. and others (1987) 3 SCC 622, where similar views were expressed and it was held that a vested right could not be taken away by retrospective amendment of statutory Rules arbitrarily and unreasonably. In addition it was observed that subordinate legislation in the nature of legislative instructions could not supersede or amend statutory Rules of service.
16 On his submission relating to the doctrine of promissory estoppel Mr. Iyer relied on the decision of this Court in Surya Narain Yadav and others vs. Bihar State Electricity Board and others, AIR 1985 SC 941, wherein while considering the said doctrine, the consistent view of this Court from Union of India vs. M/s Indo-Afghan Agencies Ltd. (1968) 2 SCR 366 to the M.P. Sugar Mill Co. Ltd. v. State of Uttar Pradesh (1979) 2 SCC 409, was reiterated. Mr. Iyer emphasized the observations made in the M.P. Sugar Mill case (supra) to the effect that the doctrine of promissory estoppel is not really based on the principle of estoppel but it is a doctrine evolved by equity in order to prevent injustice and it can be the basis of a cause of action.
Accordingly, present petition is allowed. Impugned order cancelling promotion orders of petitioners are hereby quashed and set aside with a direction to respondents to restore earlier promotion orders which were issued in favour of petitioners in pursuance to order dated 25.2.2009,page 22, Annexure E with all consequential benefits as if orders cancelling promotion orders of petitioners were not passed by respondents. However, it is kept open for respondents to send petitioners for necessary training as required under amended notification dated 5th October, 2006. Rule is accordingly made absolute in aforesaid terms with no order as to costs.
(H.K.
Rathod,J.) Vyas Top