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Judgment
This petition is filed under Article 226 of the Constitution of India wherein the petitioners have prayed for the following reliefs:
"27(A) YOUR LORDSHIPS may be pleased to issue a writ or mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the impugned notification dated 14.08.2014 issued by the Revenue Department, State of Gujarat (at ANNEXURE-L hereto) as well as Government Resolution/Circular dated 14.03.2017 (at ANNXURE-O hereto);
(A-1) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ, order or directions quashing and setting aside the impugned notification dated 29.06.2017 issued by the Revenue Department, State of Gujarat (at ANNEXURE-T hereto);
(B) During pendency and final disposal of the present application, YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of impugned notification dated 14.08.2014 issued by the Revenue Department, State of Gujarat (at ANNEXURE-L hereto) as wel as Government Resolution/Circular dated 14.03.2017 (at
ANNEXURE-O hereto) and further be pleased to direct the respondent authorities not to undertake Lower Revenue Qualifying examination of the Revenue Talatis;
(C) Pass any such other and/or further orders that may be though just and proper, in the facts and circumstances of the present case;"
The facts of the present case in nutshell are as under:
2.1 The petitioners are appointed as Clerks with the respective Collectors, Deputy Collectors as well as Mamlatdars in Kutch, Banaskantha and Kheda district. They are appointed in the year 2012 or 2013, as the case may be, and placed in the concerned districts. It is the say of the petitioners that on completion of satisfactory service of five years, they would be given the minimum pay scale applicable to the regular employees.
2.2 The Revenue Department, in exercise of powers conferred under proviso of Article 309 of Constitution of India, has framed the Rules on 13.8.2009 for regulating the recruitment to the post of Revenue Talati (Class-III) under the control of District Collectors. Similarly, the State Government has also framed the Rules for the purpose of recruitment of Clerks, Clerks-cum- Typists and Typists on 16.8.1990.
2.3 On 12.2.2014, recruitment rules are framed for regulating the method of examination for recruitment to the post of Clerk (Class-III) for the office of the State Government. It is the say of the petitioners that on 16.2.2010, the State Government has framed the Rules for the purpose of regulating recruitment to the post of Deputy Mamlatdar (Class-III) in the subordinate service of Revenue Department.
2.4 It is stated that the job chart for Talatis and job chart for the Clerks is different and the persons working as Talatis and persons working as Clerks have to perform different duties.
2.5 The grievance of the petitioners is that on 14.8.2014, the Revenue Department amended the Deputy Mamlatdar (Class-III) in the Subordinate Revenue Services Recruitment Rules of 2010, whereby it was provided that Revenue Talati also be included in the original Rule 2(A) with regard to promotion of a person to the post of Deputy Mamalatdar. It is also the grievance of the petitioners that by impugned circular dated 14.3.2017, it is now provided that even the Revenue Talatis would be promoted to appear in the Lower Revenue Qualifying (`LRQ'' for short)
examination. The petitioners, therefore, challenged the notification dated 14.8.2014 as well as the circular dated 14.3.2017 in the petition.
2.6 At this stage, it is also required to be noted that during the pendency of the present proceedings, the respondent-State has issued notification dated 29.6.2017 by which the amendment is made in LRQ Examination Rules of 1978. Petitioners have therefore challenged the said notification also.
Heard learned advocate Mr.Majmudar for the petitioners and learned AGP Mr.Antani for the respondent-State.
3.1 Learned advocate Mr.Majmudar appearing for the petitioners submitted that the impugned amendment by way of notification dated 14.8.2014 is violative of Articles 14,16 and 21 of the Constitution of India. By virtue of the said amendment in the government resolution, the service conditions of the petitioners are changed mid-way which is not permissible. Such amendment is beyond the rule making power conferred to the State Government.
3.2 It is further contended that the scope
of work of the Revenue Talatis and the Clerks is completely different and therefore there is no justification of clubbing them for the purpose of promotion. Learned advocate for the petitioners would further contend that the recruitment of the Revenue Talatis and Clerks are different and therefore also there is no justification in clubbing them for the purpose of promotion.
3.3 It is submitted that althroughout, the post of Deputy Mamlatdar was a promotional avenue for the Clerks and the said post was not the promotional avevnues for the Revenue Talatis. Thus, for Revenue Talatis, the State Government ought to have created some other promotional avenues instead of clubbing them with the post of Clerks. At this stage, it is submitted that Revenue Talatis are given different kind of training and have to perform different kind of work other than the Clerks. From the job charts produced on record, learned advocate submitted that the Revenue Talatis have to undertake more on field work whereas nature of work of the Clerks is different. From the resolution dated 31.1.2014, it is pointed out by learned advocate that the Clerks are given completely different set of work of maintaining files, making correspondence, work relating to computer and internet conducting conferences, overseeing the
maintenance of records etc.
3.4 Learned advocate Mr.Majmudar thereafter submitted that by way of impugned amendment, the respondent-State has retrospectively changed the service conditions of the petitioners which is not permissible in the eye of law and therefore the impugned notification and the circular be set aside.
3.5 Learned advocate Mr.Majmudar further submits that the Revenue Talatis were recruited prior to the appointment of the petitioners. Thus, because of the clubbing of both the cadres for promotion to the post of Deputy Mamaltdar, such Revenue Talatis would be placed higher in the seniority list and therefore the petitioner who are working as Clerks would not get the chance of promotion to the post of Deputy Mamlatdar. Thus, because of the impugned notification and circular issued by the respondent-State, the case of the petitioners would not be considered for promotion. Hence, the impugned notification as well as circular be set aside.
3.6 Learned advocate Mr.Majmudar has placed reliance on the following decisions:
Union of India and Others V/s B.Dev, reported
in (1998)7 SCC 691.
State of Madhya Pradesh and Others V/s Yogendra Shrivastava, reported in (2010) 12 SCC
538.
T.R.Kapur and Others V/s State of Haryana and Others, reported in 1986 (Supp) SCC 584.
On the other hand, learned AGP Mr.Antani appearing for the respondent-State submits that the contention of the petitioners that their service conditions have been changed midway on account of the impugned notification and circular is misconceived. It is submitted that no service condition of the petitioner can change on account of introduction of a cadre which is distinct from their own cadre. It is further submitted that even otherwise, the service conditions of a government employee shall be subject to the rules and regulations that remain in force from time to time. Thus, merely because the Revenue Talatis are included by way of amendment of Rules for the promotion of Deputy Mamlatdar, it cannot be said that the service conditions of the petitioners are changed mid-way.
4.1 Learned Assistant Government Pleader further submits that the impugned notification and circular are issued in the name of Governor of Gujarat. The appropriate rules of business for
amendment of the rules have been complied with by the respondent-State and therefore when the respondent-State is empowered to frame the Rules and/or amend the same, it is not open for the petitioners to contend that the respondent-State has committed any illegality while issuing the impugned notification and circular.
4.2 Learned AGP thereafter submitted that from the job chart produced by the petitioners with the petition, it is clear that the functions to be dispensed by the Revenue Talatis would be more suited for being promoted as the Deputy Mamlatdar since Deputy Mamlatdar has to largely dispense revenue functions which include field work, demarcation, inspection, maintenance/examination of land records etc.
4.3 Learned AGP thereafter contended that the circular dated 14.3.2017 has been challenged by the petitioners on the ground that the Revenue Talatis could not be permitted to appear in the LRQ examination when there is no provision for the said cadre in the LRQ Rules. However, now the State Government, by way of a notification dated 29.6.2017, amended the LRQ Rules during the pendency of the present petition and therefore now it is not open for the petitioners to challenge the said circular. Hence, on this ground, the petition be dismissed.
4.4 Learned AGP thereafter pointed out from the affidavit-in-reply filed by Mr.K.V.Patel, Under Secretary on behalf of the respondent-State that the State Government, after due deliberation and in the interest of administration of revenue functions, had created the cadre of Revenue Talati to especially ensure that an exclusive cadre under revenue administration dispenses the revenue functions. It is pointed out that initially the revenue functions were carried out by the cadre of Talati-cum-Mantri. The cadre of Talati-cum-Mantri were entrusted with revenue functions as also panchayati functions inasmuch as it was a common cadre for dispensing such nature of functions. Thus, it is pointed out that Talati-cum-Mantri in its hierarchy would otherwise fall under the panchayati organisational hierarchy. It was in addition to dispensation of panchayati functions that the Talati-cum-Mantri though not being under revenue organizational hierarchy was also expected to dispense with revenue functions. Thus, the aforesaid anomaly caused administration difficulties and inefficiency and therefore the State Government thought it fit to create the cadre of Revenue Talatis vide G.R.dated 23.10.2008. Thus, it is contended that when the
State Government, taken the policy decision, it cannot be challenged on the grounds raised by the petitioners in the petition.
4.5 Learned AGP thereafter would submit that the petitioners cannot seek promotion as a matter of right but at the most they can request that their case be considered for promotion to the higher post. It is submitted that the creation of post, administration and placements of cadres are subjects where the executive enjoins exclusivity and scope of judicial review in such executive decision is very limited. Thus, it is contended that when the State Government has taken the decision in the interest of administration, it is not open for the petitioners to challenge the same. At this stage, it is also clarified by learned AGP that for promotion to the post of Deputy Mamlatdar, criteria is "merit and efficiency" as provided for in the Recruitment Rules. It is further clarified that `seniority'' is one of the facets/features of `merit'' which with its wider connotation would include alongwith "seniority" the other qualifying requisites such as passing of LRQ examination, computer competency etc.
4.6 Learned AGP has placed reliance upon the following decisions:
P.U.Joshi and others, V/s The Accountant General, Ahmedabad and Others, reported in (2003)2 SCC 632.
The decision rendered by the Madras High Court in the case of Raj Bahadur Thappa V/s The Secretary, Union of India and Others decided in W.P.No.26665 of 2014 decided on 1.12.2016.
M.Lookas Babu and Others V/s State of A.P., rep., by its Principal Secretary, Revenue Department and Others, reported in 2009(4) ALD 266.
We have considered the submissions canvassed on behalf of the learned advocates appearing for the parties. We have also gone through the material produced on record and the decisions upon which the reliance is placed by the learned advocates.
From the record, it emerges that the petitioners are appointed on the post of Clerks in the year 2012-2013. Since then, they are working on the said post. The petitioners would be given minimum pay scale applicable to the regular employee on completion of satisfactory service of five years. The Revenue Department, while exercising powers conferred by the proviso to Article 309 of Constitution of India, framed the Rules for the appointment to the post of Deputy Mamlatdar (Class-III). The said Rules are
called the `Deputy Mamlatdar, Class-III, in the Subordinate Revenue Services Recruitment Rules, 2010''. (hereinafter referred to as the `Recruitment Rules, 2010''). Rule 2 thereof provides as under:
"2. Appointment to the post of Deputy Mamlatdar, class-III, in the Subordinate Services of Revenue Department shall be made either:-
(A)(a) by promotion of a person of proved merit and efficiency from amongst the person who:-
(i) have worked for not less than five years in the Cadre of Clerk or English Typist or Gujarati Typist or Clerk cum Typist, class- III in the Subordinate Services of Revenue Department,
(ii) have passed the prescribed departmental examination for promotion to the post of Deputy Mamlatdar class-III in the Subordinate Services of Revenue Department, and
(iii) have passed the qualifying examination for computer knowledge in accordance with the provisions of the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006;
Provided that where the appointing authority is satisfied that a person having the experience specified in sub-clause(i) above is not available for promotion and that it is necessary in the public interest to fill up the post by promotion even of a person having experience for a lesser period; it may, for reasons to be recorded in writing, promote such person who possess experience of a
period of not less than two thirds of the period specified in sub-clause(i) above, or The candidate appointed either by direct selection on the basis of the result of a competitive examination or by promotion shall have to undergo such training and to pass such examination as may be prescribed by Government."
By way of impugned notification dated 14.8.2014, the Revenue Department, in exercise of powers conferred by proviso to Article 309 of Constitution of India issued the notification whereby the Recruitment Rules, 2010 is amended. The said amendment provides as under:
"xxxx
In the Deputy Mamlatdar, Class-III, in the Subordinate Revenue Services Recruitment Rules, 2010 (hereinafter referred to as "the said rules", in rule 2, in sub-rule (A),-
(1) in clause (a), in sub-clause (i), for the words "or Clerk cum Typist, Class-III", the words "or Clerk cum Typist or Revenue Talati, Class-III" shall be substituted;
(2) in clause (b), in sub-clause (I), for the words "or Clerk cum Typist, Class-III", the words "or Clerk cum Typist or Revenue Talati, Class-III" shall be substituted."
Similarly, circular dated 14.3.2017 has been issued by the respondent-State by which the Revenue Talatis are also permitted to appear in LRQ examination on certain terms and conditions. It is stated in the said circular that because of
the amendment in the Recruitment Rules of 2010 by way of notification dated 14.8.2014, Revenue Talatis are placed in the feedre cadre for promotion to the post of Deputy Mamlatdar, such Revenue Talatis are also required to pass LRQ examination for getting promotion on the post of Deputy Mamlatdar as per notification dated 18.3.1978. Representations were received by the government from such Revenue Talatis and therefore the aforesaid circular was issued.
At this stage, it is required to be noted that the State Government, in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, framed the LRQ Examination Rules of 1978. Rule 2(i) of the same provides as under:
"2(i) `Subordinate Revenue Service'' includes persons appointed as Clerks, Circle Inspectors and Typists in the lower division and Deputy Mamlatdars and Circle Officers in the Upper Division."
During the pendency of the present petition, the State Government issued notification dated 29.6.2017 by which Revenue Talatis are permitted to appear in LRQ examination. Such notification reads as under:
"NO.GHM/2017/M-47/EXM/102017/3440/D.1:-
In
exercise of the powers conferred by the proviso to article 309 of the Constitution of India, the Governor of Gujarat hereby makes the following rules further to amend the Gujarat Lower Revenue Qualifying Examination Rules, 1979, namely:-
These rules may be called the Gujarat Lower Revenue Qualifying Examination (Amendment) Rules, 2017.
In the Gujarat Lower Revenue Qualifying Examination Rules, 1978, in rule 2 in clause
(i), for the words "as Clerks, Circle Inspectors and Typists in the lower division", the words "as Clerks, Circle Inspectors, Typists and Revenue Talatis in the lower division" shall be substituted. By order and in the name of the Governor of Gujarat"
Thus, from the aforesaid Rules, notifications and circulars, it is revealed that the notification dated 14.8.2014 has been issued by the State Government in the name of Governor of Gujarat, while exercising powers conferred by the proviso to Article 309 of Constitution of India by which the amendment is made in the Recruitment Rules of 2010. Similarly, the notification dated 29.6.2017 has been issued while exercising powers conferred by the proviso to Article 309 of the Constitution of India in the name of Governor of Gujarat by which the LRQ examination Rules are amended. Thus, we are of the view that the respondent-State has followed the procedure and not committed any illegality while issuing the impugned notifications.
In the case of B.Dev (supra) relied upon by the learned advocate Mr.Majmudar, the Hon''ble Supreme Court has observed and held in paragraphs 35 and 36 as under:
"35. The last of the above cases has been decided by the Constitution Bench in which one of us (Justice Agrawal), was a Member and he spoke for the Bench. It will be advantageous to quote the following passage in that judgment:
"24. In many of these decisions the expressions `vested rights'' or `accrued rights'' have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effedt of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution."
If the principle laid down in the above judgment is applied here, there is no doubt that the impugned amendments in the present case cannot operate retrospectively."
In the case of Yogendra Shrivastava (supra), the Hon''ble Supreme Court has observed in paragraph 15 as under:
"15. It is no doubt true that Rules made under Article 309 can be made so as to operate with retrospective effect. But it is well settled that rights and benefits which have already been earned or acquired under the existing rules cannot be taken away by amending the Rules with retrospective effect. Therefore, it has to be held that while the amendment, even if it is to be considered as otherwise valid, cannot affect the rights and benefits which has accrued to the employees under the unamended rules. The right to NPA @25% of the pay having accrued to the respondents under the unamended Rules, it follows that respondent employees will be entitled to non-practising allowance @25% of their pay upto 20-5-2003."
In the case of T.R.Kapur and others (supra), the Hon''ble Supreme Court has observed that the right to be considered for promotion is a condition of service. It is further held that the benefits acquired under the Rules made under proviso to Article 309 regarding qualifications for promotion cannot be taken away retrospectively by an amendment to the disadvantage of a government servant and such amendments effecting such retrospective operation must satisfy Articles 14 and 16.
We cannot dispute with regard to the principles of law laid down by the Hon''ble Supreme Court in the aforesaid cases. However, the said decisions would not render any assistance to the petitioners in the facts of the present case. It is required to be noted at this stage that the petitioners are appointed on the posts of Clerk in the year 2012-13 and on completion of five years of satisfactory service only, they will be placed in the regular pay scale.
It is also relevant to note that the State Government took the policy decision in the interest of the administration of the revenue functions by which the cadre of Revenue Talatis was created. It is clear from the record that initially the revenue functions were looked after by the cadre of Talati-cum-Mantri. However, cadre of Talati-cum-Mantri were entrusted with revenue functions as well as panchayati functions. The State Government by Government Resolution dated 23.10.2008 took the decision to create a cadre of Revenue Talati. It also transpires from the record that looking to the nature of work performed by the Revenue Talatis, the respondent- State thought it fit to amend the Recruitment Rules of 2010 by which such Revenue Talatis are
placed in the feedre cadre in the promotional post of Deputy Mamlatdar Class-III.
It is also required to be noted that criteria for promotion to the post of Deputy Mamlatdar, Class-III as provided in the Recruitment Rules of 2010 is merit and efficiency and not only on the basis of seniority as contended by the petitioners. Thus, the apprehension on the part of the petitioners that the Revenue Talatis are appointed on the concerned posts prior to the appointment of the petitioners on the post of Clerks and therefore they are senior to the petitioners and they would not get the chance of promotion to the post of Deputy Mamlatdar, is misconceived in view of the aforesaid Rules. Thus, we are of the view that the promotion would not be granted only on the basis of seniority. Hence, submission of learned advocate for the petitioners is misconceived.
The Hon''ble Supreme Court in the case of P.U.Joshi (supra) relied on by learned AGP, has held in paragraph 10 as under:
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of
promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by apporpriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government Servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
Thus, from the aforesaid decision rendered by the Hon''ble Supreme Court, it is clear that it is within the competency of the state to change the Rules relating to service and alter or amend or vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion from time to time as the administrative exigencies may need or necessitate. There is no right in any employee of the state to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time. The government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relevant to even an existing service.
Thus, keeping in view the aforesaid decision rendered by the Hon''ble Supreme Court, we are of the view that no right is accrued in favour of the petitioners on the basis of Recruitment Rules of 2010 and the petitioners are having a right to be considered for promotion. As discussed hereinabove, even after clubbing the cadre of Revenue Talati with the cadre of the Clerks in the feedre cadre for promotion to the
post of Deputy Mamlatdar, the promotion would be granted on the basis of the ''merit and efficiency'' and not only on the basis of ''seniority''.
In view of the aforesaid discussion, we are of the opinion that the petitioners are not entitled to claim the reliefs as prayed for in the petition and notifications dated 14.8.2014, 29.6.2017 and circular dated 14.3.2017 are not required to be quashed and set aside Accordingly, this petition is dismissed.