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Judgment
Mohan M. Shantanagoudar, J.—Sri. S.P. Rana (Petitioner in W.P. No. 37056/09) was appointed as Dy. Education Officer on 25.10.02. The revised recruitment rules came into force on 15.6.07 by which the post Dy. Education Officer is made as feeder cadre for the purpose of promotion to the post of Education Officer Grade (Training) under 25% quota. The recruitment rules reveal that four posts of Education Officers are available. (one each for the discipline of science, Social Science, English and Training). Thus, it is clear that one post out of four posts (i.e., 25% quota) is to be filled up by promotion from the cadre of Dy. Educational Officer. On 21.6.07, the Departmental promotional committee (DPC) has recommended the case of Mr. Rana for the post of Education Officer, however, the case of Mr. Ramesh Chandra was not recommended since he was not from Dy. Education Officer''s cadre, consequently, Mr. S.P. Rana was promoted as Education Officer on 22.6.07. Questioning the promotion of Mr. Rana and questioning the revised recruitment rules, Mr. Ramesh chandra approached the Central Administrative Tribunal by filing Application No. 217/09 which came to be allowed on 18th September, 2009. Consequently, the recruitment rules in so far as they relate to providing 25% by promotion from the cadre of Dy. Education Officer were quashed. As a consequence thereof, the promotion of Mr. Rana also stood quashed. The order of the Tribunal is questioned in these writ petitions.
W.P. No. 37056/09 is filed Mr. S.P. Rana whose promotion was quashed. W.P. No. 37055/09 is filed by the Union of India being aggrieved by the order of the Tribunal quashing revised recruitment rules.
Heard the Advocates on record at length. The Advocates have taken us through the materials on record including revised recruitment rules apart from the earlier recruitment rules.
The Tribunal has quashed the revised recruitment rules in so far as they relate to providing promotion to the cadre of Dy. Education Officer by observing thus:
The discussions in para 7, 8 and 25 above would show that only the post of Deputy Education Officer has been made by a Feeder Grade for promotion to the post of Education Officer. The reasons for excluding the posts of Principal Grade II/Vice Principal which are in a higher scale of pay are not indicated. Incidentally they are eligible for direct recruitment. It is also seen that there is only one post of Deputy Education Officer and the number of posts of Principal Gr. II/Vice Principal, etc., are much more in number. No reasons are forthcoming for this classification. The purported nexus is also not spelt out. Hence, having regard to the principles of law laid down by Apex Court and which have been summarized in para 19 & 24(iv) above, we hold that, that part of the present amendment, which makes only Deputy Education Officer as a feeder Grade for promotion is bad in law. It is quashed and set aside. Consequently, the promotion of private respondent to the post of Education Officer is also quashed.
Though the order of the Central Administrative Tribunal runs 22 pages, the above mentioned para is the only paragraph which provides the reasons. The rest of the paragraphs are meant for stating facts and quoting the judgments of the Apex Court.
It is no doubt true that prior to revision of recruitment rules, the post of Education Officers were being filled in the following terms:-
50% by deputation on usual foreign terms
50% by direct recruitment
By modifying the recruitment rules, the posts of Education Officers are filled up as under:
i) 50% by Direct Recruitment
ii) 25% by deputation
iii) 25% by promotion
Thus it is clear that 50% quota earlier provided for the purpose of candidates on deputation is reduced to 25%. Remaining 25% is to be filled from the cadre of Dy. Education Officers. Thus it is clear that the post of Dy. Education Officers has been made as feeder cadre for promotion to the extent of 25% of posts of Education Officer which means out of 4 post of Education Officers, one post will have to be filled by promotion from the Dy. Education Officer cadre.
The Tribunal has taken exception to the aforementioned revised recruitment rules on the ground that it is improper on the part of the Central Government to provide one seat exclusively for Dy. Education Officer. Such reasoning assigned by the Tribunal cannot be accepted as has been held by the Apex Court in the case of V.K. Sood Vs. Secretary, Civil Aviation and others, . In exercise of the rule making power, the authorized person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or condition of service to an office or a post under the State. The rules thus having been made in exercise of the power under proviso to Article 309 of the Constitution, being statutory cannot be impeached on the ground that the authorities have prescribed tailor made qualifications to suit the individuals whose names have been mentioned in the matter. The Supreme Court in the aforementioned matter has observed that no motives can be attributed to the legislature in making the law.
It is by now well established that although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and laying down the qualification etc., is not immune from judicial review, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the judgment of the employer or ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. 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 provisions or is patently arbitrary or vitiated by mala fides. The Courts would not normally regulate the prescription of qualifications.
In the matter on hand, except to the post of Education Officer, no other promotion avenue is available to the Dy. Education Officer. On the other hand, the employee such as Rameshchandra who is working as Principal Gr. II has got promotional avenues to the post of Principal Gr. I. He can even get the post of Education Officer under 50% direct recruitment as well as 25% deputation quota. The other officers are not completely debarred for being considered to the post of Education Officer. On the other hand, the Dy. Education Officer cannot be considered either to the post of Principal or to any other post. Since the Dy. Education Officer becomes stagnant till his retirement, the Union of India thought it fit to provide promotional avenue by filling up of the post of Education Officer by promotion from the cadre of Dy. Education Officer to the extent of 25%.
It is relevant to note that Ramesh Chandra had opted for Principal Gr. I post under amended modified recruitment rules. The names of two persons including Ramesh Chandra was short listed by the department to consider for being promoted to the post of Principal Gr. I. However, since Ramesh Chandra was facing certain departmental enquiry, he was not selected for being promoted to the post of Principal Gr. I. This clearly goes to show that Ramesh Chandra having tried his luck to get himself to be appointed as Principal Gr. I post even under modified recruitment rules and having failed in such attempt, has questioned the modified recruitment rules in so far as they relate to creation of 25% of posts by promotion from the cadre of Dy. Education Officer. Sri. Ramesh Chandra is estopped from doing so. Be that as it may, we do not find that the modified recruitment rules are unconstitutional or arbitrary or vitiated by malafides. Therefore, no interference is called for. We propose to add that under the modified recruitment rules, not only the mode of recruitment to the post of Education Officer is modified but also to various posts including the post of Director, Dy. Director, Accounts and Audit Officer, Principal Gr. I, Principal Gr. II, Head Master etc., Therefore, it is not open for Ramesh Chandra to contend that the rules are modified only to suit the purposes of Mr. Rana.
The order of the Tribunal thus cannot be sustained and stands quashed.
The writ petitions are allowed.