GUJARAT FOOD AND DRUGS CONTROL ADMINISTRATION GAZETTED OFFICERS ASSOCIATION GANDHINAGAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner is the Gujarat Food & Drugs Control Administration Gazetted Officers Association For the post of Joint Commissioner Gujarat Drugs Service Class-I advertisement dated 28/02/1989 has been issued by the respondent authorities By this advertisement applications for the post in question have been invited. This has given rise to this petition The petitioners pray that the rules providing for direct recruitment he declared illegal unconstitutional and void and the advertisement dated 28/02/1989 published in newspaper and produced at Annexure B also be quashed and set aside and the respondents be directed to make appointment to the post in question from the employees serving in the lower post of Deputy Commissioner.

(2.) The Joint Director (Administration) Drugs Control Administration (Recruitment) Rules 1972 inter alia provide for appointment by direct recruitment to the post of Joint Director which has boon now designated as Joint Commissioner Rule 2 specifically provides that appointment to the post shall be made either

(3.) The petitioner contends that there is no guidelines as regards the quota or ratio of promotees and direct recruits for appointment to the post of Joint Commissioner. Since there is no fixed quota nor there is any guidelines contained in the rule the provision of rule is arbitrary and hence violative of Arts. 14 and 16 of the Constitution of India. It may be noted that the post of Joint Commissioner is a Class-I post. It is a post of higher cadre in the administration. As one steps up higher in the ladder the appointing authority should have sufficient margin and wide discretion for selection of meritorious candidates for such posts. At the lower level or in the middle level in service ordinarily seniority or seniority-cum-merit may be the criterion. But as far as the posts in the highest cadre of administration are concerned the criterion is ordinarily suitability of the candidate concerned for the post in question. For judging suitability of the candidate from amongst the employees in service proved merit and efficiency is the criterion. For such posts ordinarily there cannot be fixed quota rule or ratio. The authority concerned must have sufficient discretion to select the most meritorious persons to man such posts. The omission to prescribe specified ratio for direct recruitment and for promotees would not render the rule otios. In absence of fixed quota or ratio all that would happen will he that the selecting authority will have discretion to resort to either of the two channels provided under the rules. When the legislature has not provided for fixed quota or ratio for the promotees and the direct recruits it necessarily implies that the legislature desired to confer wide discretion on the selecting and appointing authority. It may also be noted that even in case of promotees the eligibility criteria prescribed is proved merit and efficiency and not seniority. When the selecting and appointing authority resorts to either of the mode of appointment in both cases the authority concerned will be in a position to judge the merits of a candidate on the basis of objective material. It may be in the shape of service record of the candidate when the appointment is by way of promotion. In the other case the objective material will be in the shape of factual data regarding educational qualification and other relevant material with regard to experience etc. This material will be sufficient for the selecting and appointing authority to exercise their discretion in just fair and reasonable manner. It may also be noted that there is no material placed on record to show as to how many posts are there in the cadre of Joint Commissioner. However it may be reasonably inferred and presumed that the number of posts in Class-I service will be few. Whenever the number of posts in the higher cadre is small or very small it would naturally he difficult to prescribe any fixed ratio for the direct recruits and promotees. On the contrary in such situation it would also be desirable that no such fixed ratio be prescribed and room for sufficient play by the selecting and appointing authority be provided. If this is not done it is very likely that doors for more meritorious and suitable persons may remain permanently closed. In this view of the matter omission to prescribe fixed ratio or quota appears to be rational and in conformity with the object to be achieved.