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Judgment
K.S. Jhaveri, J.—By way of this petition, under Article 226 of the Constitution of India, the petitioner-Association has prayed to direct the respondent-Corporation to make appointment for two out of four posts of Assistant Municipal Commissioners from amongst the seniors in the administrative cadres and to further direct the respondent-Corporation to consider the said aspect while making appointment pursuant to its Advertisement dated 06.05.2007.
The petitioner is a registered Association consisting of the Officers of the respondent-Rajkot Municipal Corporation. On 06.05.2007 the respondent-Corporation published an Advertisement in a local daily inviting applications for the Post of Assistant Municipal Commissioner in the Corporation. In response to the said Advertisement, certain members of the petitioner-Association submitted their applications in the prescribed form.
It is the say of the petitioner that the members of the petitioner-Association who had submitted their applications, in pursuance of the said Advertisement, had received the Call-letters on 25.08.2009 informing them to remain present for oral interview on 01.09.2009. Accordingly, on the said date, the members of the petitioner-Association remained present and the interviews were held.
However, subsequently, respondent No. 3 informed the members of the petitioner-Association that they are required to undergo a "written examination" for the purpose of appointment to the said post and that such examination shall be held on 03.01.2010.
Being aggrieved by the aforesaid action of the respondent-Corporation, the petitioner-Association has preferred the present petition.
Mr. S.P. Majmudar, learned Counsel for the petitioner, has submitted that the impugned action of the respondent-Corporation, asking the members of the petitioner-Association to appear in the written examination, is beyond the scope of the Advertisement inasmuch as in the said Advertisement, no where it is stated that a "written examination" shall be held for recruitment to the said post. Hence, the impugned action of the respondent-Corporation deserves to be quashed and set aside.
6.1 Learned Counsel has further submitted that in the respondent-Corporation, there is no departmental promotion for the purposes of appointment of Assistant Municipal Commissioner and therefore, the employees of the respondent-Corporation are denied their chance of promotion to the said post, which is violative of Articles 14 & 16 of the Constitution of India. Hence, appropriate directions deserve to be issued to the respondent-Corporation to create promotional avenues to the said post.
Mr. J.K. Shah, learned AGP, has supported the action of the respondent-Corporation and has submitted that it is prerogative of the Corporation to decide as to how and in what manner they shall conduct the recruitment process and that it is not open to the petitioner to challenge the same.
Mr. R.M. Chhaya, learned Counsel for the respondent-Corporation, has submitted that the petitioner-Association cannot term the recruitment process of the respondent-Corporation illegal only because the members of the petitioner-Association possess requisite years of experience and that it would be difficult for them to compete with the other candidates, who are direct recruits, in the written examination. The Corporation has modified the recruitment process since the total number of candidates who had applied for the said post was very high and in order to select the best amongst them, it was decided to conduct a written examination. Therefore, this Court may not exercise its discretionary powers in favour of the petitioner.
Heard learned Counsel for the respective parties and perused the documents on record. The Advertisement in question, inviting applications for appointment of Asst. Municipal Commissioner in the respondent-Corporation, was published on 06.05.2007. A copy of the said Advertisement is produced on record vide "Annexure-A" at page-43. In the said Advertisement, it has been clearly spelt out that on the basis of merits, a limited number of candidates shall be called for undergoing the selection process. No where in the said Advertisement, any mention has been made with regard to the mode or method of selection. It was only mentioned that a selection process will be undertaken only for a limited number of candidates chosen on the basis of merits.
It is a settled law in service jurisprudence that the Court has no role in determining the methodology of recruitment or laying down the criteria of selection. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving the efficiency of administration. I find the action of the respondent-Corporation, of deciding to conduct a "written examination", to be well within the scope of the Advertisement dated 06.05.2007 inasmuch as in the said Advertisement, no where it has been stated that no "written examination" shall be conducted. In fact, as stated herein above, it has been specifically spelt out that a limited number of candidates, selected on the basis of merits, will be required to undergo the selection process for appointment to the said post. In the Call-letters issued to the candidates also, it has not been stated that selection shall be on the basis of results of the oral interview only. Hence, the impugned action of the respondent-Corporation of deciding to conduct a "written examination" for selection of suitable candidates is just and legal and also within the scope of the Advertisement.
If a recruiting body receives a large number of applications, in respect of any post, then it can adopt such selection process, as it may deem fit, keeping in mind the post to which the appointment is to be made and the availability of resources for conducting such selection process. It may keep as many stages in the selection process, as it may deem fit, for screening the best talent and for selecting the best candidate/s available in the market. Merely on the ground of possessing the requisite number of years'' of experience, an employee cannot claim appointment to a higher post.
The members of the petitioner-Association have been granted additional relaxation by the respondent-Corporation by fixing their upper age-limit for applying to the said post at 50 years, which is, usually, not the criteria for appointment in any Government/statutory body. The members of the petitioner-Association have been given the said relaxation, as a special case and therefore, they further cannot claim concession by stating that they are not required to undergo the "written examination". If the respondent-Corporation had been denying them opportunity to appear in the "written examination", then the action would have been violative of Article 14 but, that is not the case. Here, the members of the petitioner-Association are seeking further concession, which, in my opinion, cannot be granted.
Looking to the facts of the case, it would be relevant to refer to a decision of the Apex Court in the case of Union of India v. Pushpa Rani and Ors. (2008) 9 S.C.C. 242 and more particularly, on the observations made in Para-37 therein, which reads as under;
Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.
So far as the contention raised by the petitioner with regard to the channel of promotion in the respondent-Corporation is concerned, I find that no Rules, with respect to the promotional avenues in the Corporation, have been produced on record. Without examining the relevant rules, it would not be appropriate for this Court to make any observations qua the same. Even otherwise, it is a settled law this Court cannot substitute its opinion in place of the rules & regulations framed by a statutory body on the subject of promotions.
In view of the above discussion, I am of the view that this is not a case wherein the discretionary powers vested in this Court could be exercised in favour of the members of the petitioner-Association, who have applied for the post in question. The impugned action of the respondent Corporation is just and legal since it is the absolute prerogative of the respondent-employer to decide as to what mode of selection process shall they adopt for appointing candidates to any post. I also find their action to be within the scope of the Advertisement published by them. Hence, the present petition deserves to be dismissed.
For the foregoing reasons, the petition is dismissed. Notice is discharged.
It is, however, observed that if after undergoing the entire selection process, any member/s of the petitioner-Association is/are selected for the said post, then the respondent-Corporation shall give them the benefit of continuity in service provided they have applied "through proper channel" and subject to the relevant rules of the corporation.