1 WP2092-4236.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2092 OF 2011 Shri Shivaji Shripati Gaikwad & ors. ... Petitioners v/s The State of Maharashtra & ors. ... Respondents ALONG WITH WRIT PETITION NO. 4236 OF 2011 The State of Maharashtra & ors. ... Petitioners v/s Shri Shivaji Shripati Gaikwad & ors. ... Respondents Mr.S.R.Nargolkar, A.G.P. for the petitioners in W.P.No.4236 of 2011 and for respondent Nos.1 and 2 in W.P.2092 of 2011. Mr.A.S.Khandeparkar with Mr.Anilkumar Joshi for respondent Nos.16 to 26 in W.P.No.4236 of 2011 and for respondent Nos.3 to 12 in W.P.No.2092 of 2011. Mr.R.S.Apte, Sr. Advocate with Ms.S.P.Manchekar for the petitioners in W.P.No.2092 of 2011 and for respondent Nos.1 to 9, 11 to 14 in W.P.No.4236 of 2011. Mr.Nilesh Talekar i/by J.G.Reddy for respondent Nos.14, 16, 18, 35 to 37 in W.P.No.2092 of 2011 and for respondent No. 27 in W.P. No.4236 of 2011. CORAM: B.H.MARLAPALLE & SMT.NISHITA MHATRE, JJ. DATED: 29TH/30TH SEPT., 2011 2 WP2092-4236.11 ORAL JUDGMENT (Per Marlapalle, J.: 1. Both petitions filed under Articles 226 and 227 of the Constitution of India have challenged the common judgment dated 7.3.2011 rendered by the Maharashtra Administrative Tribunal (for short, “MAT”) in a group of original applications. In Writ Petition No.2092 of 2011, three of the petitioners were the private respondents before the Tribunal. Writ Petition No.4236 of 2011 has been filed by the State of Maharashtra. 2. Rule. Respondents waive service. By consent of the parties, the petitions have been heard finally. 3. By the notification dated 17.7.2009, the State Government, in exercise of its powers conferred by the proviso to Article 309 of the Constitution of India, framed the State Excise Department (Recruit) Rules, 2009, and the said notification was published in the State Government Gazette of the same date. Rule 3 of the said Rules and more particularly Rule 3(a)(iii) read with Rule 3(c)(iii), came to be challenged on its constitutional validity before the MAT. The Tribunal has, by the impugned common judgment, upheld the constitutional validity of the impugned Rule but at the same 3 WP2092-4236.11 has stated that it shall not apply to the original applicants who had joined prior to 1.1.1993 as clerks/constables under the State Excise Department. 4. Initially and before the formation of unified State of Maharashtra by the Government Resolution dated 26.12.1958, the State Government had framed Recruitment Rules to the non-gazetted posts on the Excise and Prohibition Department in supersession of the earlier rules. Rules 3 and 4 of the 1958 Recruitment Rules read as under:- “3. Sub-Inspectors of Prohibition and Excise. (I) Appointment shall be made - (a) Ordinarily by nomination from amongst persons who must not be more than 25 years of age at the time of appointment may have passed the Intermediate Examination of recognized University or on examination of an equivalent standard, and (b) in special circumstances by promotion from the ranks of clerical or constabulary establishment. (II) Every person appointed to the post of Sub- Inspectors (i) If appointed by nomination be on probation for two years be on probation for two years, (ii) be required to pass the Prohibition and Excise Subordinate Service Departmental Examination and an examination in the language of the district in which he is serving according to prescribed rules, and 4 WP2092-4236.11 (iii) unless exempted by the Director of Prohibition be required to undergo and pass in a course of physical training. Provided that the Director may grant exemption in respect of Sub-rules (ii) and (iii) above to any senior member from constabulary staff appointed by promotion. (iv) In the event of the failure or the candidate appointed by nomination to pass the departmental examination or the physical training course, the Director may, at his discretion dispose with his services or may deal with him in any other manner as he may deem fit. 4. Prohibition and Excise Constabulary Force (Petty Officers and Constables) Appointments to posts on the Prohibition and Excise Constabulary force shall be made either by nomination or by promotion. When an appointment is made by nomination a candidate must possess the following qualifications, namely:- (i) in the case of a male candidate:- (a) he must be certified to be fit and of good constitution by the Presidency Surgeon in the case of Bombay City and by the Civil Surgeon in the case of mofussil before he is finally selected, (b) he must be not less than 18 not more than 28 years of age on the date of enlistment provided that the upper-age limit may be relaxed up-to 35 years in the case of ex-serviceman. (c) he must conform to the following standards or physique Height: 5’ - 4” and 162 centimeters Chest:- This mean between the deflated and inflated chest measurements must be not less than 79 centimeters Note: The difference between the deflated and inflated chest measurements must be not less than 5 centimeters. 5 WP2092-4236.11 (d) he must have passed at least the sixth standard examination of an approved primary school or the Indian Army 2nd Class certificate of education examination. Note: The Director of Excise and Prohibition is empowered to relax in suitable cases the conditions regarding the prescribed physical standard in favour of candidates appointed to the constabulary staff. (ii) In the case of female candidate:- (a) she must be certified to be fit and of sound constitution by the Presidency Surgeon in the case of Bombay City and by the Civil Surgeon in the case of mofussil before the Director of Excise and Prohibition may either dispense with such certificate or accept a certificate signed by a registered magical practitioner, and (b) she must be or not less than 18 or more than 35 years of age on the date of appointment. It is to be noted that under Rule 3 of the 1958 Rules for appointment to the post of Sub-Inspector, there were no prescribed physical standards in terms of height, weight and expansion of chest, etc., whereas for the posts of Petty Officers and Constables, the candidate was required to have the height of 5 ft. 4 inches (162 centimeters) and the mean between the deflated and inflated chest measurement was not to be less than 79 centimeters. The said Rules also did not contemplate recruitment of female Sub-Inspectors but they did contemplate the recruitment of female Petty Officers and Constables. 6 WP2092-4236.11 5. These Rules were replaced by the State Excise Department (Recruitment) Rules, 1992 which continued to be in force till they were replaced by the State Excise Department (Recruitment) Rules, 2004 as published in the State Government Gazette on 29.9.2005. Finally, the State Excise Department (Recruitment) Rules, 2009 have replaced the Recruitment Rules of 2004. It would be appropriate for ready reference to reproduce Rules 3 and 4 of the Recruitment Rules of 1993, 2004 and 2009 as under:- Rules 3 & 4 of Recruitment Rules of 1993: “3. Appointment to the post of Inspector of State Excise department shall be made by promotion of a suitable person on the basis of seniority subject to fitness from amongst the persons holding the post of Sub-Inspector of State Excise having not less than 3 years regular service in that post.” “4. Appointment to the post of Sub-Inspector of State Excise shall be made either, (a) by promotion of a suitable person on the basis of seniority subject to fitness from amongst the clerical cadre and the Constabulary of the Department, who - (i) having not less than 3 years regular service in the department; (ii) have passed at least the Secondary School Certificate Examination, (iii) possess minimum physical standards prescribed for appointment by nomination in sub- clause (iii) of clause (b); (iv) are not more than 45 years of age; and 7 WP2092-4236.11 (v) have passed the written examination prescribed by the Commissioner for the purpose; or (b) by nomination from amongst the candidates who:- (i) are not less than 19 years of age and not more than 30 years of age, (ii) possess a degree of a statutory University. (iii) possess the following minimum physical standard, viz. (I) In case of male candidates the minimum height not less than 165 centimeters, and minimum deflated chest not less than 79 centimeters with expansion of minimum 5 cms. Between deflated and inflated chest measurements. (II) In case of female candidates the height should not be less than 160 centimeters and weight not less than 50 kgs. Rules 3 and 4 of Recruitment Rules of 2004:- “3. Appointment to the post of Sub-Inspector of State Excise Department shall be made either:- (a) by selection on the basis of common merit list prepared by the Commission from amongst the persons belonging to the clerical cadre or constabulary of the State Excise Department on the basis of the result of the limited Competitive Departmental Examination and who - (i) possess minimum physical standards prescribed in sub-clause (ii) of clause (b) of this rule; (ii) have minimum regular service in clerical cadre or constabulary with educational qualifications as specified below: Minimum Regular: Educational Qualification Service 8 WP2092-4236.11 (1) 3 years ... Degree in any faculty. (2) 5 years ... Passed the Higher Secondary School Certificate Examination. (3) 7 years ... Passed the Secondary School Certificate Examination. (iii) have passed at least the Secondary School Certificate Examination; and (iv) are not more than 45 years of age; (b) by nomination on the basis of the result of competitive examination held by the Commission and for admission to which a candidate shall - (i) be within the age limit as may be fixed by the General Administration Department of Government of Maharashtra from time to time for recruitment of Government Servants in general; (ii) passes a degree; (ii) possess the following minimum physical measurements, namely:- For Male Candidates: Height ... 165 cms. Minimum Chest ... 79 cms. Minimum with minimum expansion of 5 cms. For Female Candidates: Height ... 157 cms. Minimum Chest ... 50 kg. Minimum.” “4. Appointment to the post of Sub-Inspector by selection on the basis of limited Competitive Departmental Examination and nomination shall be made in the ratio of 50:50. Provided that 1/5th of the total posts to be filled in by promotion shall be filled in from the clerical cadre 9 WP2092-4236.11 and the remaining 4/5th shall be filled in from the constabulary as per the select list prepared separately for the two cadres; Provided further that, if adequate number of persons are not available in any of the cadres, to fill up the vacancies reserved for that cadre, then the unfilled posts shall be filled in from the candidates available from the other cadre.” Rules 3 and 4 of Recruitment Rules of 2009: “3. Appointment to the post of Sub-Inspector in State Excise Department shall be made either, (a) by promotion of a suitable person on the basis of seniority subject to fitness from amongst the Constabulary who, - (i) have completed not less than seven years regular service in that cadre; (ii) have passed the Secondary School Certificate Examination; (iii) possess minimum physical standard prescribed in sub-clause (iii) of Clause (c) of Rule 3; or (b) by selection on the basis of common merit list prepared by the Commissioner from amongst the clerical cadre and Constabulary of the State Excise Department on the basis of the result of the Limited Competitive Departmental Examination and who, - (i) possess minimum physical standards prescribed in sub-clause (iii) of clause (c) of Rule 3; (ii) have passed the Secondary School Certificate Examination; (iii) have minimum regular service in clerical cadre or Constabulary as per the educational qualifications as specified below:- 10 WP2092-4236.11 Minimum Regular : Educational Qualification. (1) 3 years ... Possess Degree in any faculty. (2) 5 years ... Passed the Higher Secondary School Certificate Examination. (3) 7 years ... Passed the Secondary School Certificate Examination; or (c) by nomination on the basis of the result of a competitive examination held by the State Level Selection Committee or any other Government Agency, appointed by the Commissioner or Government, and for admission to which a candidate shall, - (i) not be more than the age of thirty three years; Provided that an ex-serviceman who has served continuously in the Armed Forces for a period of not less than five years may be allowed to deduct from his age, the period of two years over and above the length of his continuous service in the Armed Forces up-to the date of release from the service; (ii) possess a Degree; (iii) possess the following minimum physical standards, namely:- For Male: Height ... minimum 165 centimeters. Chest ... minimum 79 centimeters and above with expansion of 5 centimeters. For Female: Height ... minimum 155 centimeters. Weight ... 50 kgs.” 11 WP2092-4236.11 “4. Appointment to the post of Sub-Inspector either by promotion or by selection on the basis of Limited Competitive Departmental Examination and by nomination, shall be made in the ratio of 25:25:50. Provided that, the posts to be filled in by selection on the basis of Limited Competitive Departmental Examination as per provisions of sub-rule (b) of Rule 3, shall be filled in from the Clerical Cadre and the Constabulary in the ratio of 20:80.” 6. In the Recruitment Rules of 1992 which were brought into effect from 1.1.1993, for the first time, two different modes of appointment to the post of Sub-Inspector came to be provided i.e. by promotion and by nomination, in the ratio of 50:50. At the same time, the male candidates aspiring to be selected as Sub-Inspectors by nomination or by promotion from the clericals/constables, were required to have a minimum height not less than 165 centimeters and minimum deflated chest not less than 79 centimeters with expansion of minimum 5 centimeters between deflated and inflated chest measurements. For the female candidates, the minimum height was not to be less than 160 centimeters and weight not less than 50 kgs. The said physical requirement has been maintained in the Rules of 2004 as well as 2009 for the male candidates and with some variations in respect of the female candidates. The Recruitment Rules of 1993 came to be challenged before the MAT in Original Application No. 300 of 1993 and the said application was dismissed on 12 WP2092-4236.11 12.7.1993. The recruitment to the post of Sub-Inspectors by both modes continued after the Recruitment Rules, 1992 were brought into force. 7. The original applicants approached the Tribunal with almost the same grievances/challenges as were raised in Original Application No.300 of 1993. The applications were allowed by some of the present petitioners as well as the State of Maharashtra and after hearing both parties, by the impugned order, the Tribunal rejected the challenge to the constitutional validity of Rule 3(c)(iii) of the Recruitment Rules, 2009. The Tribunal also observed that it could not sit in appeal over the judgment upholding the constitutional validity of Rule 3(c)(iii) especially when the identical features in Rules of 1993 were upheld by its earlier two judgments and the Rule was held to be constitutionally valid. However, the Tribunal proceeded to hold that there is a legitimate expectation to get promoted to the post of Sub-Inspector and it has been completely foreclosed to the original applicants by denying them such an opportunity forever. By referring to the decision of this Court in the case of P. Balu v/s Union of India, reported in 2009 (12) LJSOFT 151, the Tribunal observed that, a constable recruited with a height of 162 centimerters will obviously not grow in height after a given 13 WP2092-4236.11 point of time and relaxation once given in physical standard must entitle the petitioner to receive further promotions. As per the decision in the case of The State of Jammu and Kashmir v/s Shri Triloki Nath Khosa & ors., reported in (1974) 1 SCC 19, the Recruitment Rules of 2009 could not have any retrospective effect and, therefore, the original applicants who were appointed during the period when the Recruitment Rules of 1958 were applicable i.e. prior to 1.1.1993 would not be of Rule 3(c)(iii) of the Recruitment Rules of 2009. There being no express clause of retrospective effect, the Rules will have to be given prospective effect and giving a retrospective effect would be contrary to the constitutional mandate under Articles 14 and 16 of the Constitution. The applicants could not be denied the only avenue of promotion as a Sub-Inspector permanently, though they have worked for more than 20 years in the constabulary. The Tribunal also noted that for the balance 26 posts, the claim of the 35 original applicants could be considered for the post of Sub-Inspector but without insisting upon the requirement of a minimum height. Hence, the Tribunal directed to consider the cases of the applicants for being promoted to the post of Sub-Inspector though their height might be between 162 to 164 centimeters along with other candidates subject to their fitness and other criteria. 14 WP2092-4236.11 8. Mr.Apte, the learned senior counsel appearing for the petitioners in Writ Petition No.2092 of 2011, at the first instance submitted that having noted and relied upon the earlier two decisions of the Tribunal rejecting the challenge to the constitutional validity of the very same Rule or similar Rule in the Recruitment Rules of 1992, the Tribunal ought to have dismissed all the original applications challenging the validity of Rule 3(c)(iii) of the Recruitment Rules of 2009 by following the doctrine of stare decisis. If the rule challenged has been held to be valid, it was not permissible for the Tribunal to hold that the said Rule will have prospective operation in the case of the original applicants or others who were appointed prior to 1.1.1993. It was also pointed out that there was no vested right for being even considered for promotion in the Recruitment Rules of 1958 and the right of promotion to the post of Sub-Inspector was created for the first time in the Recruitment Rules of 1992. Mr.Nargolkar, the learned A.G.P. appearing for the State of Maharashtra while adopting the arguments advanced by Mr.Apte, submitted that the view taken by the Tribunal is self contradictory. On one hand the Tribunal has held that Rule 3(c)(iii) of the Recruitment Rules of 2009 has been held to be constitutionally valid and at the same time it has been held that it will not apply to the original applicants. The challenge 15 WP2092-4236.11 to the same Rule in the Recruitment Rules of 1992 was rejected on the very same grounds, and hence the original applications filed were not maintainable and were required to be dismissed at the threshold. It was also pointed out that the Recruitment Rules of 1993 were in operation till the Recruitment Rules of 2004 were framed and a large number of constables/clerks came to be promoted to the post of Sub- Inspector by following the Rules of 1992 and by implementing the condition of minimum height for each of these promotees. The original applicants did not challenge the validity of the said Rule prescribing minimum height right from 1.1.1992 till the year 2009 and this itself ought to have been held by the Tribunal as the ground sufficient to dismiss the original applications. Having accepted the amended Rule for about 18 years, the original applicants could not be allowed to turn around and take a plea that the Rule prescribing the minimum height would have only a prospective application i.e. from 1.1.993 onwards. 9. Mr.Talekar, the learned counsel for some of the original applicants, while supporting the impugned judgment of the Tribunal, relied upon the following decisions:- (i) Food Corporation of India & ors. v/s Parashotam Das Bansal & ors., reported in (2008) 5 SCC 100; 16 WP2092-4236.11 (ii) Union of India & anr. v/s Kartck Chandra Mondal & anr., reported in (2010) 2 SCC 422; and (iii) Union of India & anr. v/s Hemraj SinghChauhan & ors., reported in (2010) 4 SCC 290. He also relied upon the decision of this Court in the case of P. Balu (supra) in support of his contentions that the requirement of minimum height which was not a part of the Recruitment Rules of 1958 could not be made applicable to the original applicants as no such condition was prevalent when they were recruited and it is physically impossible for any constable/clerk after putting in more than 10 to 20 years of service to increase his height. Such a condition is impossible to achieve and, therefore, the Tribunal was justified in holding that by prescribing the requirement of minimum height the original applicants have been denied even for being considered for promotion forever i.e. till they would retire from service. For being considered for promotion is a right available to every employee and if by prescribing impossible conditions such a right is taken away, the action of the State would be arbitrary and thus violative of the right under Article 14 of the Constitution. The following observations made in the case of Council of Scientific and Industrial Research v/s K.G.S. Bhatt, 17 WP2092-4236.11 reported in 1989 4 SCC 635 were also relied upon by Mr.Talekar:- “9. .........It is often said and indeed, adroitly, an organization public or private does not ‘hire a hand’ but engages or employs a whole man. The person is recruited by an organization not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organization. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. ‘The organization that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non- managerial employees and their supervisors’. There cannot be any modern management much less any career planning, manpower development, management development, etc. which is not related to a system of promotions.” He also relied upon the following observations made by the Supreme Court in the case of Food Corporation of India (supra):- “12. When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that they fell within a category of employees excluded from promotional prospect, the superior court will have the jurisdiction to issue necessary direction.” Mr.Talekar, therefore, urged that the directions issued by the Tribunal to consider the cases of the petitioners without 18 WP2092-4236.11 making the condition of minimum physical height applicable to the original applicants for the post of Sub-Inspectors. The learned counsel for other original applicants have adopted the arguments of Mr.Talekar. 10. We have given our anxious considerations to the arguments advanced by the respective parties and also the reasoning set out by the Tribunal. In Original Application No.300 of 1993, the very same pleas were raised by the original applicants and while challenging the very same clause prescribing the requirement of minimum height as has been incorporated in the Recruitment Rules of 1992 and the validity of which came to be challenged in the fresh application before the Tribunal. Para 3 of the judgment of the Tribunal dated 12.7.1993 in Original Application No.300 of 1993 runs thus:- “3. The main grievance of the petitioner seems to be that if the new rules are made applicable to them in that event, it is more clear that they would be permanently debarred/disqualified from getting the promotion to the post of Sub-Inspector either on account of lack of minimum qualification of being S.S.C. Or on account of crossing the age of 45 years or on account of height being not minimum 165 cms. According to them, the new rules can be made applicable only to those who are not seeking the recruitment that is the initial appointment either in the post