I S SINDHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Petitioners Junior Clerks Senior Clerks Sub- Accountants etc. eligible for promotion to the post of Sub-Inspector of Prohibition and Excise under the Inspector of Prohibition and Excise and Sub-Inspector of Prohibition and Excise (Recruitment) Rules 1973 (hereinafter referred to as (Recruitment Rules of 1973) in the Prohibition and Excise department of State of Gujarat have by this petition challenged the appointment of the direct recruits as Sub- Inspectors of Prohibition and Excise. According to the petitioners the Director of Prohibition and Excise respondent No. 2 who is the appointing authority has not followed the rules providing quota between the direct recruits and the promotees in the ratio of 1 : 3 and has also tried to introduce the manner and method of promotion by holding written and viva voce test even though no such provision is made in the said rules. They have also prayed for declaring the appointment of the direct recruits to the post of Sub-Inspectors as illegal null and void and to direct the respondents to make recruitment by promotion according to quota and in the manner prescribed in the Recruitment Rules of 1973 and have also prayed for restraining the respondents from making any appointment of the direct recruit Sub-Inspectors.

(2.) All the 23 petitioners were holding the posts of Junior Clerks Senior Clerks Sub-Accountants etc. and have passed the departmental examination known as Departmental Examination of the Non-Gazetted Prohibition and Excise Officers and Clerks of the Prohibition and Excise Department prescribed by the Notification dated 8/07/1965 The Inspector of Prohibition and Excise and Sub-Inspector of Prohibition and Excise (Recruitment) Rules 1973 are made in exercise of the powers conferred by proviso to Art. 309 of the Constitution of India in supersession of the previous rules. Rule 3 of the said rules provides that the appointment to the post of Sub-Inspector of Prohibition and Excise under the Directorate of Prohibition and Excise shall be made as far as practicable by direct selection and by promotion or A clerk of proved merit and efficiency in the ratio of 1:3. The eligibility criteria for the above referred categories was proved merit and efficiency. Recruitment Rules of 1973 did not provide for any other test viz. written test or the viva voce test for promotion to the Sub-Inspector of Prohibition and Excise. Grievance of the petitioners was that inspite of the quota fixed under the rules in the ratio of 1: 3 the 2nd respondent-Director of Prohibition and Excise purposely and mala fide did not adhere to the said quota and recruited Sub-Inspectors of Prohibition and Excise by direct recruitment out of proportion and with a view to deny the right of the eligible departmental persons and also introduced the written test and viva voce test for the purpose of selection even though the Recruitment Rules of 1973 did not provide for any such examination. The petitioners have cited several instances of such recruitment and holding the examination and objected to that. In short the petitioners have challenged the direct recruitment as well as the action of the respondent No. 2 in not promoting the petitioners to the post of Sub-Inspector of Prohibition and Excise. The petitioners have given details with regard to the date of joining the department year of passing the relevant departmental examination designation at the relevant time etc but they are not required to be specifically stated here.

(3.) At the initial stage this Court by order dated 6/07/1979 issued ad interim injunction restraining the respondents from making any appointment by direct recruitment and subsequently by order dated 3/08/1979 granted interim relief directing the second respondent not to make any appointment to the post of Sub-Inspector by direct recruitment during the pendency of this petition and further directing him to make appointments by promotion strictly in accordance with the relevant recruitment rules. By Civil Application No. 2028 of 1986 filed on 16/07/1986 in this Court by the State of Gujarat and the Director of Prohibition and Excise the respondents prayed for vacating the ad interim relief granted by the Court stating several reasons but that Civil Application could not be heard by this Court for certain reasons. Mr. P. V. Hathi learned Counsel for the petitioners and Mr. G. D. Bhatt learned Asstt. Government Pleader have agreed that the said Civil Application be considered as a part of the main petition and be disposed of with the main petition as facts are stated and statistics are provided by the parties in the affidavits and statements filed in the said Civil Application.