Case: U.P. State Tourism Development Corpn Vs. I.B. Misra

High Court in coming to the aforesaid conclusion stands on a different footing. In that case, in clause (1) of Regulation 3 of the Gujarat Housing Board Services Classifications of and Recruitment Regulations, 1981, there were three modes for appointment to the post of Assistant Housing Commissioner (Technical), [now Superintendent Engineer] namely, (i) by promotion of employees working as Executive Engineer in Boards Higher Services on the basis of seniority-cum- merit; (ii) by calling Executive Engineer on deputation from State Building and Communication Department (iii) by direct selection from amongst the candidate called for interview. In clause (3) of Regulation 3 of the said Regulations, it was expressly provided : "If a suitable candidate is not available for appointment by promotion from amongst the Executive Engineers of the Housing Board, a panel of names of Executive Engineers having at least 4 years, standing experience from the State B & C Department may be called for with a proviso that no departmental inquiry should be pending against him. One of the vacancy will be selected by the Board and the selected candidate will be appointed by the Board." 11. This Court construed clause (1) of Regulation 3 in the light of clause (3) of the said Regulation to hold that the post must be filled by promotion of eligible Executive Engineers of the Housing Board on the basis of seniority-cum-merit and it is only if no suitable candidate is available from amongst the Executive Engineers of the Housing Board that the appointment should be made on deputation from amongst the Executive Engineers of the State Building and Communication Department and failing this, the appointment can be made by direct selection amongst the candidates called for interview. The language used in Rule 19 of the Rules is, however, different from that used in Regulation 3 of the Gujarat Housing Board Services Classifications of and Recruitment Regulations, 1981 which was considered by this Court in Gujarat Housing Board Engineers Association & Anr. v. State of Gujarat (supra). There is no provision in Rule 19 of the Rules providing for promotion as a mode of appointment. Moreover, in Rule 19 there is no provision similar to clause (3) of Regulation 3 of the said Regulations and it is left to the Corporation to make appointment on Class I post either by selection or by deputation. The fact that ever since 1981 no appointment has been made by selection and all appointments on the post of General Manager have been made on deputation would not justify construing Rule 19 in the way the High Court has construed it.12. It is no doubt true that as a result of appointments that have been made on the post of General Manager by deputation the other mode of appointment, namely, by selection, as provided in Rule 19, has been rendered otiose. Shri R.K. Jain, the learned senior counsel appearing for the appellant, has submitted that the Corporation has preferred appointment on the post of General Manager by deputation in order to secure officers having high level of administrative ability from the State Government because for the post of General Manager a person with high administrative capacity is needed and furthermore an officer appointed on deputation, if he is not found suitable for the job, can be sent back at any time but this may not be possible if regular appointment is made by selection. Having regard to the aforesaid submissions made by Shri Jain we are unable to hold that the Corporation has been acting arbitrarily in making appointments on the post of General Manager by deputation and in not resorting to the process of selection for making such appointment.13. The High Court has observed that the present policy of making appointment on the post of General Manager by deputation would result in impairing the efficiency of the person holding a post just below the post of General Manager because he knows that he would never be appointed on the post of General Manager and would have to stagnate on that post forever. The High Court has pointed out that avenue of promotion is one of the methods by means of which a person shows his skill and efficiency. These observations are in consonance with the law laid down by this Court. In Council of Scientific and Industrial Research & Anr. v. K.G.S. Bhatt & Anr., 1989 (4) SCC 635 , it has been observed :- "A person is recruited by an organisation 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 organisation. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. The organisation 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 must less any career planning, manpower development, management development etc. which is not related to a system of promotions." Similarly in Dr. Ms. O.Z. Hussain v. Union of India, 1990 Supp. SCC 688, it has been said :- "This Court has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service." 14. But this does not justify reading into Rule 19 the requirement that appointment on the post of General Manager should be made by promotion and if no suitable person was available appointment may be made by deputation. That is a matter which appertains to the promotion policy to be adopted by the Corporation. It is expected that the Corporation while revising its promotion policy will keep in view these observations.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. This Court construed clause (1) of Regulation 3 in the light of clause (3) of the said Regulation to hold that the post must be filled by promotion of eligible Executive Engineers of the Housing Board on the basis of seniority-cum-merit and it is only if no suitable candidate is available from amongst the Executive Engineers of the Housing Board that the appointment should be made on deputation from amongst the Executive Engineers of the State Building and Communication Department and failing this, the appointment can be made by direct selection amongst the candidates called for interview. The language used in Rule 19 of the Rules is, however, different from that used in Regulation 3 of the Gujarat Housing Board Services Classifications of and Recruitment Regulations, 1981 which was considered by this Court in Gujarat Housing Board Engineers Association & Anr. v. State of Gujarat (supra). There is no provision in Rule 19 of the Rules providing for promotion as a mode of appointment. Moreover, in Rule 19 there is no provision similar to clause (3) of Regulation 3 of the said Regulations and it is left to the Corporation to make appointment on Class I post either by selection or by deputation. The fact that ever since 1981 no appointment has been made by selection and all appointments on the post of General Manager have been made on deputation would not justify construing Rule 19 in the way the High Court has construed it.12. It is no doubt true that as a result of appointments that have been made on the post of General Manager by deputation the other mode of appointment, namely, by selection, as provided in Rule 19, has been rendered otiose. Shri R.K. Jain, the learned senior counsel appearing for the appellant, has submitted that the Corporation has preferred appointment on the post of General Manager by deputation in order to secure officers having high level of administrative ability from the State Government because for the post of General Manager a person with high administrative capacity is needed and furthermore an officer appointed on deputation, if he is not found suitable for the job, can be sent back at any time but this may not be possible if regular appointment is made by selection. Having regard to the aforesaid submissions made by Shri Jain we are unable to hold that the Corporation has been acting arbitrarily in making appointments on the post of General Manager by deputation and in not resorting to the process of selection for making such appointment.13. The High Court has observed that the present policy of making appointment on the post of General Manager by deputation would result in impairing the efficiency of the person holding a post just below the post of General Manager because he knows that he would never be appointed on the post of General Manager and would have to stagnate on that post forever. The High Court has pointed out that avenue of promotion is one of the methods by means of which a person shows his skill and efficiency. These observations are in consonance with the law laid down by this Court.But this does not justify reading into Rule 19 the requirement that appointment on the post of General Manager should be made by promotion and if no suitable person was available appointment may be made by deputation. That is a matter which appertains to the promotion policy to be adopted by the Corporation. It is expected that the Corporation while revising its promotion policy will keep in view these observations.