LPA/93/2005 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 93 of 2005 In SPECIAL CIVIL APPLICATION No. 4963 of 2002 With CIVIL APPLICATION No. 646 of 2005 In LETTERS PATENT APPEAL No. 93 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE D.H.WAGHELA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= JAYANTILAL MAKWANA,TRANSPORT MANAGER - Appellant(s) Versus AHMEDABAD MUNICIPAL CORPO. & 2 - Respondent(s) ========================================================= Appearance : MR MUKUL SINHA for the Appellant MR S.N. SHELAT, LD. SR. COUNSEL with MR. M.G. NAGARKAR for Respondent(s) : 1, MR. M.D. PANDYA for respondent No. 3 MR. K.P. RAWAL, AGP, for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE D.H.WAGHELA LPA/93/2005 2/9 JUDGMENT Date : 14 /10/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present Letters Patent Appeal is filed by the appellant against the judgement and order of the learned Single Judge dated 20.10.2004. By the decision impugned, the learned Single Judge has dismissed the Special Civil Application filed by the appellant in which the appellant had prayed that the order dated 27.4.2002, appointing respondent No. 3 to the post of Deputy Municipal Commissioner, be declared illegal, discriminatory, arbitrary and in violation of Article 14 of the Constitution of India. The appellant had, therefore, prayed for quashing of the said order dated 27.4.2002. The petitioner had also prayed for a direction to respondent No. 1 for considering his case for appointment to the post of Deputy Municipal Commissioner with effect from 27.4.2002 and for grant of all consequential benefits. 2. Impugning the judgement, learned counsel for the appellant urged that the learned Single Judge has not LPA/93/2005 3/9 JUDGMENT considered the questions raised by him in right perspective. The challenge of the learned counsel for the appellant is two fold: one that the Rules which require a procedure to be followed has not been followed by the Selection Committee and the other aspect is that the respondent who has been appointed was not qualified to be appointed. In addition to these two challenges to the appointment of the respondent, the appellant urged that he is entitled to be appointed because he was qualified for the post and he was required to be considered. 3. The learned Single Judge observed that there is no dispute about the fact that the petitioner did not have Second Class in the Degree of Bachelor of Arts nor did he get Second Class while passing the LL.B (General) examination. It is also not in dispute that, however, the petitioner passed LL.B (Special) examination (a one year study) in which he secured Second Class. In those backgrounds, learned Single Judge was of the opinion that the appellant is not qualified. Further, learned Single Judge found that the selected incumbent was qualified as per norms. The basic challenge of the appellant to his qualification was that he did not have the requisite administrative experience. Regarding which the learned Single LPA/93/2005 4/9 JUDGMENT Judge found that he has sufficient experience and did not agree with learned counsel for the appellant that Superintendent of the Slaughter House is not a post on which administrative experience can be gained and therefore that could not have been counted as administrative experience. 4. Answering the arguments of the learned counsel for the appellant, learned Single Judge found that the selection process had not been erroneous. There may not be a requirement in the Rules to frame a Departmental Promotion Committee (DPC) for assessing the merits of the candidates and then make a recommendation to the Selection Committee under the Rules but the same provides safeguard against any arbitrariness. The DPC so constituted was an exercise which is not required to be called in question. The final selection was required to be made under Rule 2 of Chapter III of Appendix – IV and such safeguard only made the process transparent. Arguing the appeal, learned counsel submitted that the respondent was not qualified because of his experience as Superintendent of the Slaughter House as he had no duties of the kind which could be said to be administrative in nature and therefore administrative experience as required was not there with him. LPA/93/2005 5/9 JUDGMENT 5. Per contra: Learned counsel for the respondent urged that it is not for the Court to judge as to which post is administrative in nature. Therefore, the decision of the administrative authorities in considering the same is not liable to be called in question in the present proceedings. To support his argument, learned counsel for the respondent has relied on a decision rendered by the Hon'ble Supreme Court in the case of TRIVEDI HIMANSHU GHANSHYAMBHAI VS. AHMEDABAD MUNICIPAL CORPN. AND OTHERS reported in (2007) 8 SCC 644 and emphasised on the following paragraphs of the said judgement: “The Corporation had taken the stand before the High Court that insofar as the technicians are concerned, no clerks were appointed and therefore, the clerical/administrative work was also required to be done by the technicians. Apart from the certificate, which enlisted the different administrative duties performed by the appellant, the endorsement in the application form by the Medical Officer approving the nature of administrative work performed by the appellant and LPA/93/2005 6/9 JUDGMENT forwarding the duly scrutinised form to the Corporation, would clearly show that the appellant was performing administrative work for more than ten years in the Corporation. The said form was then examined and scrutinised by the committee, which conducted the written test and thereafter, permitted the appellant to appear in the written examination for the post in question. The application form was also placed before the Interview Committee which had conducted the oral interview of the appellant. The High Court was neither justified in interfering with the appointment of the appellant by holding that he did not possess the requisite administrative experience of ten years while working as an X-ray technician nor was it open to the High Court to entertain the writ petition challenging the appointment of the appellant and other selected candidates at the instance of the unsuccessful candidates.” 6. We have considered the rival submission on this point. We are of the considered opinion that the question of LPA/93/2005 7/9 JUDGMENT judging suitability of a candidate for administrative experience cannot be said to be a question which can be gone in the present proceedings. The law laid down by the Hon'ble Supreme Court in the case of TRIVEDI HIMANSHU GHANSHYAMBHAI VS. AHMEDABAD MUNICIPAL CORPN. & ORS. (supra) is conclusive on the subject. In that view of the matter, we are not persuaded that respondent No. 3 who has been appointed without requisite qualification. 7. Then comes the question of qualification of the petitioner himself. Admittedly, the petitioner had two LL.B Degrees – LL.B (General) and LL.B (Special). The requirement of Second Class in LL.B Degree was prescribed under Bombay Municipal Provincial Act as framed in the year 1948. At that time there was only one degree of LL.B which was of 2 years duration. Over the years, the degree of LL.B has undergone a sea change in its configuration. There is 3 years Degree course and 5 years Degree course required to be pursued by a candidate for getting registered as a lawyer. One does not get registered as a lawyer if he possesses only a 2 years LL.B Degree which is general and academic in nature. That does not entitle a person to become a lawyer. To become a lawyer, he has to also pass 3rd LL.B (Special) examination. However, LPA/93/2005 8/9 JUDGMENT the LL.B. Examination in which Second Class was required to be obtained by the candidate, as envisaged in the Rules, could not have been the examination of the third year of LL.B. (Special) only as such additional academic year could not have been contemplated at all when the Rules were made. Therefore, obtaining Second Class only in the LL.B. (Special) examination could not be considered in isolation so far as to hold the petitioner to be eligible for the post of Dy. Municipal Commissioner. Admittedly, the petitioner has not obtained Second Class in a 3 years Degree Course and it is only in one year Degree of special nature that Second Class was achieved, which by no stretch of imagination can be equated with LL.B Degree as defined in the Act and therefore the appellant was not qualified. If he was not qualified, his consideration for promotion was not necessary. Therefore, this Court is of the opinion that no illegality has been committed by the Committee in not considering the case of the appellant for promotion because he was not qualified. 8. As regards the selection procedure, Rule requires consideration by a Committee. That Committee did consider the case. Prior to that Committee, if DPC examined the case of eligible candidates, that was High Power DPC, no mala fides LPA/93/2005 9/9 JUDGMENT are alleged and if objective consideration has been made then no illegality can be found in it but in any case this question only has an academic significance in the facts and circumstances of the present case because learned Single Judge as well as this Court has held that the petitioner was not qualified to be considered. In that light if he is not selected then it is not possible for this Court to have a different view than the one taken by learned Single Judge. In that background, the appeal deserves to be dismissed and is dismissed accordingly. There shall be no order as to costs. In view of the disposal of the main matter, the Civil Application does not survive and is disposed. (BHAGWATI PRASAD, J) (D.H. WAGHELA, J) (pkn)