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Bombay High Court · body

2011 DIGILAW 1287 (BOM)

Mohan Rajaram Kavlekar v. Union of India

2011-10-13

A.P.LAVANDE, R.P.SONDURBALDOTA

body2011
Judgment A. P. LAVANDE, J. 1. Heard the learned Counsel for the parties. 2. By this petition, the petitioner seeks the following reliefs: (a) For declaration that the reservation for the post of General Manager (Finance) to the Other Backward Class (OBC Category candidates) is illegal, null and void. (b) For a writ of Certiorari or any other appropriate writ, direction or order quashing the notice/ advertisement advertised on the official website at Annexure “D1”. (c) For a writ of Mandamus or any other appropriate writ, order or direction directing the respondents not to make any appointment to the post of General Manager (Finance) pursuant to the notice/ advertisement at Annexure “D1” to the interview/ selection of candidates held if any pursuant to the said notice. (d) For a writ of Mandamus directing the respondents to fill up the said posts of General Manager (Finance) on considering the same as a General Category Post and order the respondent no.2 to consider the petitioner's application for the said post as and when the petitioner applies for the same. 3. The facts leading to filing of the petition are as under: Respondent no.2 is the Company incorporated under the Companies Act, 1956 and is the instrumentality of the State, within the meaning of Article 12 of the Constitution of India. The petitioner was appointed as Accounts Officer on 1st June, 1984. He was promoted to the post of Senior Accounts Officer in 1987. In 1990, he was promoted to the post of Assistant Manager (Accounts) and in 1995, to the post of Manager (Accounts). In 1997, the petitioner was promoted to the post of Chief Manager (Accounts). It is further the case of the petitioner that the post of General Manager (Finance) is a single post in terms of the Recruitment Rules. Prior to it, when the said post was vacant in the year 2001, the petitioner had applied for the said post. However, he was not called for interview on the ground that he did not possess the requisite qualification. 4. In September, 2004, the post of General Manager (Finance) was advertised on the official website of respondent no.2 by reserving the said post for the Other Backward Class (OBC). The petitioner applied for the said post. He learnt that the interviews were fixed on 3rd January, 2005. The petitioner filed the present Writ Petition seeking the above reliefs. 4. In September, 2004, the post of General Manager (Finance) was advertised on the official website of respondent no.2 by reserving the said post for the Other Backward Class (OBC). The petitioner applied for the said post. He learnt that the interviews were fixed on 3rd January, 2005. The petitioner filed the present Writ Petition seeking the above reliefs. The petitioner also sought interim relief restraining respondent no.2 from filling up the said post on the ground that the post could not have been reserved since it was a single post. By order dated 11th April, 2005, interim relief sought by the petitioner, was refused, but the appointment of General Manager (Finance) if made by respondent no.2 was made subject to the result of the petition. 5. Pursuant to the above referred advertisement, the post of General Manager (Finance) was not filled up. Respondent no.2 again issued an advertisement in March 2005 for filling up the said post, which has been challenged by the petitioner by amending the petition. Pursuant to the said advertisement, respondent no.3 has been appointed as General Manager (Finance) from OBC category. It is the case of the petitioner that the post of General Manager (Finance) being a single post, could not have been reserved for OBC in view of the settled law laid down by the Apex Court. The petitioner had requisite qualification for the said post and had also the experience of 20 years which has to be reckoned from 1984. According to the petitioner, he has been deprived of his right to be considered for the said post in violation of Articles 14 and 16 of the Constitution of India. 6. On behalf of respondent no.2, an affidavit-in-reply has been filed. The case set up by respondent no.2 in reply is that the petitioner was not eligible to the post of General Manager (Finance) on the following grounds: (a) As per the advertisement issued by respondent no.1, the post is reserved for Other Backward Class (OBC). The petitioner belongs to the general category. (b) In the advertisement, it is clearly mentioned that the candidates should have minimum two years experience in the next lower post i.e. Deputy General Manager (DGM) in the scale of Rs.17500-400-2300. Whereas, the petitioner is presently in the grade of Chief Manager in the pay scale of Rs.16000-400- 20800, which is below the grade of DGM. (b) In the advertisement, it is clearly mentioned that the candidates should have minimum two years experience in the next lower post i.e. Deputy General Manager (DGM) in the scale of Rs.17500-400-2300. Whereas, the petitioner is presently in the grade of Chief Manager in the pay scale of Rs.16000-400- 20800, which is below the grade of DGM. (c) It is also one of the conditions in the advertisement that the candidate should have minimum 20 years post qualification experience. The petitioner has 15 years or so post qualification experience on the date of his application. 7. It is further the case of respondent no.2 that the said post was reserved for OBC based on the guidelines issued by the Government of India. Respondent no.2 maintains a 13 point Common Posts Based Roster for General Manager cadre. The sanctioned strength for General Manager's post is 8 out of which 5 posts have been filled by recruitment and one post has been filled by way of deputation from Central Government. One post has been filled by Scheduled Caste candidate and 2 posts remained to be filled by OBC as per reservation guidelines. It is further the case of respondent no.2 that the post of General Manager (Finance) is not a single post as contended by the petitioner and the grade of all the General Managers is same irrespective of the department which they head i.e. General Manager (Finance), General Manager (Production) etc. It is further the case of respondent no.2 that Recruitment Rules have been revised and promotion policy rules for the officers have also been revised in the year 2006 effective from 29th April, 2006. 8. The petitioner filed rejoinder controverting the stand taken by respondent no.2. It has been stated that the post of General Manager (Finance) is not interchangeable with General Manager from other departments and General Manager from other department cannot be transferred to General Manager (Finance) department. According to the petitioner, he satisfies the eligibility conditions as well as requisite qualification when the post was filled in the year 2006 by appointing respondent no.3. It has been further stated that the condition mentioned in the advertisement must be post qualification is de hors the Recruitment Rules and as such, the advertisment / notice and consequential appointment of respondent no.3 deserve to be quashed and set aside. 9. Mr. It has been further stated that the condition mentioned in the advertisement must be post qualification is de hors the Recruitment Rules and as such, the advertisment / notice and consequential appointment of respondent no.3 deserve to be quashed and set aside. 9. Mr. Coelho Pereira, learned Senior Counsel appearing for the petitioner submitted that respondent no.2 could not have reserved the post of General Manager (Finance) for OBC since it was a single post and the post of General Manager (Finance) was not interchangeable with other posts of General Manager (Production) etc. According to learned Senior Counsel, the Rules do not provide for experience post qualification and experience of the petitioner ought to have been taken into consideration by respondent no.2 from the date of his appointment i.e. 1st June, 1984 and as such the petitioner was very much qualified for being considered for the post of General Manager (Finance) in the years 2004 and 2006. According to learned Counsel, the advertisement issued was dehors the rules since the rules then in force did not provide that experience should be post qualification. In support of his submissions, Mr. Coelho Pereira placed reliance upon on the following judgments: (i) Post Graduate Institute of Medical Education and Research, Chandigarh Vs. Faculty Association and others; (1998)4 SCC 1 . (ii) Dr. Chakradhar Paswan Vs. State of Bihar and others; (1988)2 SCC 214 . (iii) Anil Kumar Gupta and others Vs. Municipal Corporation of Delhi and others; (2000)1 SCC 128 . (iv) State of Karnataka and others Vs. K. Govindappa and another; (2009)1 SCC 1 . (v) N. Suresh Nathan and another Vs. Union of India and others; 1992 Supp (1) SCC 584. 10. Per contra, Mr. Ferreira, learned Assistant Solicitor General appearing for respondent no.1 submitted that the Recruitment Rules can be only supplemented and not supplanted and even if the rules are supplemented by executive instructions, the same has to be done by the competent authority. According to Mr. Ferreira, the single post cannot be reserved and for this purpose the test would be whether the incumbent can be transferred from one post to another and having regard to this test, the post of General Manager (Finance) could not have been reserved for OBC category. In support of his submissions, Mr. Ferreira placed reliance upon the following judgments: (i) Post Graduate Institute of Medical Education and Research, Chandigarh Vs. In support of his submissions, Mr. Ferreira placed reliance upon the following judgments: (i) Post Graduate Institute of Medical Education and Research, Chandigarh Vs. Faculty Association and others; (1998)4 SCC 1 . (iii) ParmeshwarPrasad Vs. Union of India and Ors.; (2002)1 SCC 145 . (v) State of Madhya Pradesh and another Vs. G. S. Dall and Flour Mills and Ors.; (1992) Supp 1 SCC 150. 11. Mr. Usgaonkar, learned Counsel appearing for respondent no.2 submitted that since the post of General Manager (Finance) was reserved for OBC category, the petitioner has no locus to challenge the advertisement and consequently, the appointment of respondent no.3, who has been appointed from OBC category. Learned Counsel, therefore, submitted that the petitioner has no locus to file the present petition since in terms of Recruitment Rules in force at the time of appointment of respondent no.3, the petitioner himself was not eligible to be appointed for the said post. Learned Counsel further submitted that the petitioner has not laid any foundation in the petition in support of his contention that the advertisement was not as per the Recruitment Rules and the challenge in the petition is only on the ground that the post could not have been reserved for OBC category. Learned Counsel further submitted that the petitioner, having applied for the said post in the year 2004, is not entitled to challenge the advertisement issued in March, 2005, pursuant to which respondent no.3 has been selected. According to learned Counsel, having regard to the Recruitment Rules and the advertisement in terms of which respondent no.3 has been appointed, experience post qualification has to be considered and there is nothing wrong in the stand taken by respondent no.2 that it is only post qualification experience which has to be taken into consideration for finding out the eligibility of the candidate for the post of General Manager (Finance) and which post has to be filled up by direct recruitment. According to learned Counsel, the petitioner had acquired qualification of ICWA in the year 1995 and as such, neither in the year 2004 nor in the year 2006 he had 20 years' experience post qualification and as such, the petitioner does not have requisite experience qualification even as on the date and as such, he is not eligible for the said post and consequently, has no locus to challenge the appointment of respondent no.3. Mr. Mr. Usgaonkar, in support of his submission that when experience is prescribed with qualification, the same has to be after obtaining the necessary qualification, placed reliance upon the judgment of the Apex Court in the case of Indian Airlines Ltd. and others Vs. S. Gopalkrishnan; (2001)2 SCC 362 . 12. We havecarefully considered the rival submissions, perused the record and the judgments relied upon. 13. In viewof the submissions made, the following points arise for determination: (i) Whether the petitioner has locus to challenge the appointment of respondent no.3? (ii) Whether the petitioner was eligible to be considered for appointment to the post of General Manager (Finance) since he had experience of 20 years though not after possessing necessary qualification? (iii) Whether respondent no.2 was legally justified in reserving the post of General Manager (Finance) for OBC since it is a single post? 14. Before appreciating the rival contentions, it would be appropriate to refer to the relevant parts of the Recruitment Rules pursuant to which respondent no.3 has been appointed. The same reads thus: Sl. No. Designation of Post Rec. Max Age Minimum Eligibility Conditions Composition of Interview Board Appointing Authority Remarks 3. a) Senior Naval Architecht/Engineer (Mech/Marine/Electrical/Electronics) 33 yrs i) B.Tech or B.E., AMIE or equivalent degree in appropriate discipline as for sl.3(a) with 4 yrs experience in a shipyard or similar industry ORii) MOT - 2nd class with 2 yrs experience. 1 GM- Chairman.2 M/JM/DM Members MD b) Senior Purchase Officer/ Senior Stores Officer -do- b) B.E. or graduate in Science or Commerce with post graduate diploma & 4 yrs experience. -do- -do- c) Sr. Personnel/Administration/Security/Welfare Officer -do- c) Graduate in Arts/ Science/ Law with post graduate diploma & 4 yrs experience -do- -do- d) Sr. Accounts Officer -do- d) ACA or AICWA with 4 years experience -do- -do- e) Sr. Law-cum-Secretarial Officer -do- e) LL.B with Inter/Final ACS with 4 years experience. -do- -do- 4 Assistant Managera) Technical Branchb) Non-Technical 35 yrs-do- i) Same as in 3(a) (i) with 7 yrs experience. ORii) Same as in 3(a) (ii) with 5 yrs experience. b) Same as in 3(b), (c), (d) & (e) with 7 yrs experience. 1 GM- Chairman2 M/JM/DM Members-do- MD-do- 5 Deputy Managera) Technicalb) Non- Technical 37 yrs-doi) a) i) Same as in 3 (a) (i) with 10 yrs experience. ORii) Same as in 3(a) (ii) with 5 yrs experience. b) Same as in 3(b), (c), (d) & (e) with 7 yrs experience. 1 GM- Chairman2 M/JM/DM Members-do- MD-do- 5 Deputy Managera) Technicalb) Non- Technical 37 yrs-doi) a) i) Same as in 3 (a) (i) with 10 yrs experience. OR(ii) MOT 1st Class with 5 yrs experience.b) Same as in 3(b), (c), (d) & (e) with 10 yrs experience. 1 MD-Chairman2 GMs-Members do- MD-do- 6 Joint Managera) Technicalb) Non- Technical 40 yrs-doi) a) i) Same as in 3 (a) (i) with 13 yrs experience. ORii) Same as in 5(a) (ii) with 8 yrs experience.b) Same as in 3(b), (c),(d) & (e) with 13 -do-do- -do-do- 7 Managera) Technicalb) Non- Technical 45 yrs-doi) A)Same as in 3(a) (i) with 16 yrs experienceORii) Same as in 5(a) (ii) with 11 yrs experience. b) Same as in 3(b), (c), (d) & (e) with 16 yrs experience. MD-Chairman2 local directors- Members (In case local directors are not available GMs will be members.)-do- Board-do- 8 General Manager 50 yrs-doi) Qualification as applicable to immediately lower post with experience of 20 yrs. 1 Chairman of Board.2 Directors including MD Board 15. In support of the submission made by Mr. Coelho Pereira, learned Senior Counsel appearing for the petitioner that the petitioner has locus to file the present petition since he had completed 20 years of service having been appointed in the year 1984 and respondent no.2 could not have insisted upon experience of 20 years' after obtaining necessary qualification is concerned, reliance has been placed by him on the judgment of the Apex Court in the case of Anil Kumar Gupta (supra). In the said case, the provision regarding experience mentioned was only of professional experience of two years. In this factual background, the Apex Court held that two years professional experience need not entirely be experience gained after obtaining the degree. In the case of N. Suresh Nathan (supra) to which reference is made in the case of Anil Kumar Gupta (supra), the Apex Court held that for the post of Assistant Engineer Recruitment Rules prescribe the educational and other qualification for appointment by direct recruitment and promotion. Qualification prescribed is a degree of Civil Engineering of a recognised University or Diploma in Civil Engineering from a recognised institution with three years' professional experience. Qualification prescribed is a degree of Civil Engineering of a recognised University or Diploma in Civil Engineering from a recognised institution with three years' professional experience. For appointment by promotion of Section Officers now called Junior Engineers, the qualification prescribed was as under: (i) Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years' service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years' service in the grade- 50 per cent. (ii) Section Officers possessing a recognized Diploma in Civil Engineering with six years' service in the grade- 50 per cent. The dispute was whether diploma holder Junior Engineer who obtained degree while in service became eligible for appointment as Assistant Engineer by promotion on completion of three years' service including the period of service prior to obtaining degree or three years service as degree holder for this purpose is to be reckoned from the date he obtained the degree. The Apex Court held that there was sufficient material including the admission of respondents diploma holders that the practice followed in the department for a long time was that in the case of diploma holder Junior Engineers who obtained the degree during service, the period of three years' service in the grade for eligibility for promotion as degree holders commenced from the date of obtaining the degree and earlier period of service as diploma holder was not counted for this purpose. The Apex Court further held that the entire scheme did not indicate that the period of three years' service in the grade required for degree holder according to Rule 11 as qualification for promotion in that category must mean three years' service in the grade as a degree holder and, therefore, that the period of three years can commence only from the date of obtaining degree and not earlier. The Apex Court further held that the rules must be construed to mean that three years' service in the grade of degree holder for the purpose of Rule 11 is three years from the date of obtaining degree was tenable and in conformity with past practice followed consistently. The Apex Court further held that it had been already understood by all concerned till the raising of the present controversy by the respondent. 16. In the case of Indian Airlines Ltd. (supra) relied upon by Mr. The Apex Court further held that it had been already understood by all concerned till the raising of the present controversy by the respondent. 16. In the case of Indian Airlines Ltd. (supra) relied upon by Mr. Usgaonkar, the Apex Court, after making reference to the judgments in the case of Anil Kumar Gupta and Suresh Nathan (supra), held that when in addition to qualification experience is prescribed it would only mean acquired experience after obtaining necessary qualification and not before obtaining such qualification. Under the relevant rules, the qualification prescribed was as follows: 2.1. SSC or its equivalent with three years' Government recognised diploma in Mechanical/Electrical/Automobile Engineering and having two years' experience in equipment operations or driving and possessing current heavy vehicle driving licence. or 2.2. SSC with ITI certificate or equivalent in associated trades of mechanical/electrical/automobile courses and having five years' experience in equipment operating or driving and possessing current heavy vehicle driving licence.” 17. In the above case, the respondent had ITI qualification in June 1994 and he had five years of experience after obtaining certificate and diploma in Mechanical Engineering was obtained in April, 1996. The Apex Court held that experience obtained by him fell short of requisite qualification. 18. In our considered opinion, the ratio laid down in the case of Indian Airlines Ltd. (supra) is squarely applicable in the present case. Respondent no.2 had consistently insisted upon the experience of 20 years' after acquiring the minimum qualification as applicable to immediately lower post which is ACA or AICWA. It is the case of respondent no.2 that even in the year 2001 when the post of General Manager (Finance) was advertised, respondent no.2 insisted that the candidate must have experience post qualification. Therefore, it is evident that it is the consistent practice of respondent no.2 to insist upon 20 years' experience post qualification. No doubt, the petitioner has not taken this ground in the main petition, but such ground has been urged in the affidavit in rejoinder and has been extensively argued on behalf of all the parties and, therefore, we are of the opinion that it would be appropriate to render the finding on the said issue. We are of the considered opinion that insisting upon experience post qualification would not be an exercise of supplanting the Rules but only supplementing the Recruitment Rules in consonance with the consistent practice followed by respondent no.2. We are of the considered opinion that insisting upon experience post qualification would not be an exercise of supplanting the Rules but only supplementing the Recruitment Rules in consonance with the consistent practice followed by respondent no.2. We also find that the stand taken by respondent no.2 that experience of 20 years' for the post of General Manager (Finance) should be post qualification, is in consonance with the Recruitment Rules in as much as for the lowest post of Assistant Manager (Accounts) the qualification required is ACA or AICWA with four years experience. No doubt, the post is to be filled by direct recruitment and not by promotion in terms of Recruitment Rules, but the stand taken by respondent no.2 cannot be said to be unreasonable or illegal. 19. Indisputably, in the Recruitment and Promotion Policy Rules for Officers, 2006 framed by respondent no.2 which are effective from 29th April, 2006 for the post of General Manager (Finance), it has been specifically provided that the candidate should have 20 years post qualification experience. On the basis of these rules, we find it difficult to hold that the post qualification experience has been insisted upon by respondent no.2 only after rules of 2006 have been implemented. In our opinion, the earlier practice followed by respondent no.2 finds place in the Recruitment Rules of 2006. Therefore, in our considered opinion, in so far as the first ground is concerned, we do not find any illegality in the advertisement/ notice pursuant to which respondent no.3 has been appointed to the post of General Manager (Finance). 20. However, in so far as the reservation of the post of General Manager (Finance) for OBC is concerned, we find that the issue involved is squarely covered against respondent no.2 in terms of the Constitution Bench Judgment of the Apex Court in the case of Post Graduate Institute of Medical Education and Research, Chandigarh (supra) in which the Apex Court, after considering several judgments of the Apex Court, has held that there cannot be reservation of the single post. In the case of K. Govindappa and another (supra), the Apex Court held that reservation cannot be applied to single and isolated post as it would mean 100 % reservation. In the case of K. Govindappa and another (supra), the Apex Court held that reservation cannot be applied to single and isolated post as it would mean 100 % reservation. After placing reliance upon the judgment in the case of Post Graduate Institute of Medial Education and Research (supra), the Apex Court further held that to determine whether the post is single post or not, the test to find out is whether the post constituting a cadre is interchangeable. The Apex Court has further held that if the posts are not interchangeable then each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution of India. In the present case, bare perusal of the rules discloses that the post of General Manager (Finance) is not interchangeable with the other General Managers since the qualifications are entirely different. The qualification prescribed for General Manager (Finance) is 20 years' experience with ACA or AICWA whereas the qualification for other posts is B.Tech., B.E., AMIE or MOT. Therefore, it is quite evident that the other posts of General Manager, which are technical in nature are not interchangeable with the post of General Manager (Finance). Thus, applying the tests laid down by the Apex Court in the case of K. Govindappa and another (supra), we are of the considered view that the post of General Manager (Finance) has to be held as single post and as such, reservation of the said post is not permissible in law. 21. On behalf of the petitioner and the respondent no.1 it has been rightly urged that the post of General Manager (Finance) is a single post and as such could not have been reserved for OBC category. Indisputably, respondent no.3 has been appointed since he belongs to OBC category. In the course of argument, we had put specific query to Mr. Usgaonkar, learned Counsel appearing for respondent no.2 as to whether at the time of appointment, respondent no.3 had 20 years' post qualification experience. Mr. Usgaonkar fairly submitted that respondent no.3 did not have requisite 20 years' post qualification experience, but the appointment was made by relaxing the same. In the course of argument, we had put specific query to Mr. Usgaonkar, learned Counsel appearing for respondent no.2 as to whether at the time of appointment, respondent no.3 had 20 years' post qualification experience. Mr. Usgaonkar fairly submitted that respondent no.3 did not have requisite 20 years' post qualification experience, but the appointment was made by relaxing the same. Since we have already held that the post of respondent no.3 could not have been reserved for OBC category being single post and admittedly respondent no.3 has been appointed since he belonged to OBC category by excluding all eligible candidates from Open category, the appointment of respondent no.3 is in contravention of the Constitution Bench judgment in the case of Post Graduate Institute of Medical Education and Research (supra) and the judgment of the Apex Court in the case of K. Govindappa (supra). Therefore, we quash and set aside the appointment of respondent no.3 and direct respondent no.2 to fill up the post of General Manager (Finance) in terms of Recruitment Rules, 2006. 22. Writ Petition stands disposed of in aforesaid terms with no order as to costs.