KIRITKUMAR KANTILAL MALANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a petition depicting the usual tug of war going on between various sections of the public servants whose importance in our democratic society cannot be over-emphasised though some times it occurs to us hat people concentrate more on their rights and less on their duties their energy and time having been focussed essentially on pay pension and promotion the well-known trio of public service.

(2.) This petition by 18 Petitioners working as Sales Tax Inspectors under the State service is against the State of Gujarat and six of their colleagues because of the question of priority in the matter of promotion and the apple of discord is promotion to the post of the Sales Tax Officer from the post of Sales Tax Inspector held by these contesting parties. For the purpose of becoming eligible for promotion there are the Recruitment Rules which are at Annexure A styled as Sales Tax Officer (Sales Tax Department) Recruitment Rules 1969 Rule 2 of those Rules deals with two sources of promotion. One is by direct selection and the other is by promotion from the cadre of Sales Tax Inspectors. Appointment to the post of a Sales Tax Officer in the Sales Tax Department in the Gujarat Sales Tax Service Class II in so far as it goes by promotion mentions that subject to the provisions made in the Rules for the Departmental Examinations prescribed by Government for non-gazetted Executive Staff of the Sales Tax Department the promotion will go by the yardstick of proved merit and efficiency of the people belonging to the amalgamated common cadre of Sales Tax Inspectors Assistant Superintendent and Head Clerks in The Department. We are not concerned with direct recruits. This means that the Rules for the Departmental Examination prescribed by the Government are in a way a part and parcel of the Rules for promotion. The Examination Rules are also the Rules made by the Governor under Article 309 or the Constitution of India and they are styled as Gujarat Sales Tax Department (Condition of Service Relating to Sales Tax Officers Examination) Rules 1967 Rule 4 of those Rules lays down that in order to be eligible for promotion as Sales Tax Officer an Inspector shall be required to pass the examination unless he has been exempted from passing it within the period of six years from the date of his appointment obviously as a Sales Tax Inspector. Rule 5 then lays down further details. The said Rule provides that the examination required to be passed under Rule A is to be passed in not more than three chances within the specified period and the specified period means the period specified in these Rules i.e. Rule 4 within which a person is required to pass the examination. Rule 5 lays down therefore that the examination in question is required to be cleared in three chances at the most with one additional chance provided for a member of the Scheduled Castes and Scheduled Tribes as usual. Then Rule 6 deals with the effect of not passing the examination on the part of a direct recruit with whom we are not concerned. Rules 7 and 8 which are material for our purposes in this petition are reproduced below:-

(3.) The above-quoted Rules represent their form as it is holding the field since 1981 but it has undergone metamorphosis during the course of its journey from 1967 to 1981 twice. The proviso to Rule 7 originally was as follows :-