Gujarat High Court

Jagatsinh Bhavsinh Bhatti S/O. ... vs Rajkot Municipal Corporation on 19 October, 2022

Bench: Biren Vaishnav

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4759 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
================================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ JAGATSINH BHAVSINH BHATTI S/O. BHAVSINH NAYAJEE BHATTI Versus RAJKOT MUNICIPAL CORPORATION ================================================================ Appearance:

RAHUL SHARMA(8276) for the Petitioner(s) No. 1,2,3,4,5

================================================================ CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 19/10/2022 CAV ORDER

1. Heard Mr. Rahul Sharma, learned advocate for the

petitioners and Mr. Yogi Gadhia, learned advocate for

the respondent. Perused the record.

2. In this petition, under Article 226 of the Constitution of

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India, the petitioners have prayed for a writ of

mandamus to consider Junior Data Entry Operators at

par with Junior Clerks for the purposes of having work

experience in the field of administration. It is further

prayed to declare that the petitioners are eligible for

consideration for selection to the posts of Assistant

Manager, initiated by Circular dated 26.2.2018 and

further direct the respondent that the petitioners be

appointed if they qualified at the selection process

initiated for appointment to the posts of Assistant

Manager

3. The facts in brief would indicate that the five petitioners

joined Rajkot Municipal Corporation as Junior Data Entry

Operators in the year 1996 and 2000 respectively. All of

them are Graduates which is the minimum educational

eligibility criteria for consideration of appointment to the

posts of Assistant Manager. The petitioners are in the

pay scale of Rs.5,200-20,200/- with a grade pay of

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Rs.2,800/-.

4. On 26.2.2018, the Corporation by a Circular invited

applications from eligible personnel working with the

Corporation for appointment to the posts of Assistant

Manager. The eligibility criteria included a Graduation

Degree, a Minimum Experience of ten years in the field

of administration in Class-III posts in a minimum pay

scale of Rs.5,200-20,200/- with Grade Pay of Rs.1,900/-.

5. The petitioners applied in the year 2018. They were

issued call letters. The examinations were subsequently

postponed. On the postponed date, the petitioners

learnt that their work experience was not considered as

a work experience in the administrative field and for this

reason, they were not permitted to appear in the

examinations. Aggrieved by this, the petitioners filed the

present petition.

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6. By an interim order dated 06.03.2019, this Court

permitted the petitioners to appear in the Written

Examinations and passed the following order:

"Heard learned advocate Mr. Rahul Sharma for the petitioners.

2. For the post of Assistant Manager for which the recruitment process is made to be underway by the respondent Municipal Corporation, experience criteria is provided that the candidate must have administrative experience of 10 years. The petitioners herein have been working as Junior Data Entry Operators since last more than 10 years. Their case is that they stand at par in terms with the experience with the Clerks who are treated as possessing administrative experience. According to the petitioners, they also discharge the administrative work and have gained the experience in the field.

2.1 It is the further case that earlier the recruitment process for the very post was cancelled and that at that time petitioners were issued call letters, however when the present recruitment process was started after cancellation of previous one, they are treated ineligible and are not allowed to participate on the ground that they do not possess the requisite experience.

3. The case of the petitioners deserves consideration. Therefore Notice, returnable on 14th March, 2019.

4. It was submitted that the written examination is scheduled to take place on 08th March, 2019. If the petitioners are not allowed to appear in the examination, they would suffer irreparable loss and they would be ousted from their case even without opportunity to contest on merits.

4.1 In this view, it is directed that the petitioners shall be allowed to appear in the ensuing written examination to take place on 08th March, 2019. It is

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observed that however result of the petitioners shall be kept in sealed cover and shall not be declared. The same shall be produced before the Court for further consideration in sealed cover. It is also clarified that the present order and the factum of petitioners' appearance in the examination shall not create any right or equity in favour of the petitioners.

5. Respondents are directed to file their affidavit-in- reply before the next date.

Direct service is permitted."

7. Mr. Rahul Sharma, learned counsel for the petitioners

would submit that the action of the respondents in not

considering the petitioners possessing administrative

experience is misconceived. He would submit that on

reading the Resolution dated 20.01.1996 it is clear that

the work profile assigned to the petitioners was basically

a digitization of the work that was earlier done in pen

and paper. He would read the resolution and indicate

that earlier the posts were of Junior Clerks which posts

were abolished and converted into posts of Junior Data

Entry Operators. They carried out the same duties which

were otherwise being done manually. He would submit

that therefore Junior Data Entry Operators carry out the

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same work as was discharged by Junior Clerks.

7.1. Mr. Sharma would rely on further affidavit

and submit that from the performance appraisal

reports of the petitioners, that of the petitioner No.5

indicates that the petitioner No.5 essentially was doing

manual work of writing notings which was essentially

administrative in nature. He would therefore submit

that the petitioners possess the requisite

administrative experience for appointment to the posts

of Assistant Manager.

8. Mr. Yogi Gadhia, learned counsel for the respondent -

Corporation would submit that the petitioners are

working in the technical cadre. Since they are working

as Junior Data Entry Operators which is a technical post,

they do not possess the requisite experience on

administrative side of ten years as required for applying

to the posts Assistant Manager.

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8.1. Mr. Gadhia would submit that even earlier

the representation made in 2013 when the vacancies

of Assistant Manager were notified they were treated

as ineligible which was not challenged and, therefore,

the petitioners had waived their rights. He would rely

on the General Board Resolution No.38 dated

19.09.2008 which indicates that the Junior Data Entry

Operators had requested the Corporation for higher

pay scale of Rs.4,000-6,000/- instead of Rs.3,050-

4,590/-. That was accepted by the Corporation because

it was their case that they were holding technical posts

and had limited promotional avenues. He would further

submit that merely because self appraisal reports

indicated administrative nature of duties, the same by

itself cannot entitled the petitioners to claim

appointment to the posts of Assistant Manager.

8.2. In support his submissions, Mr. Gadhia would

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rely on a decision of the Hon'ble Supreme Court in the

case of Trivedi Himanshu Ghanshyambhai v.

Ahmedabad Municipal Corporation and others

reported in 2007(8) SCC, 644. Reading paragraph

No.15 of the decision, he would submit that persons

holding technical posts cannot be appointed on

promotion to posts which required administrative

experience. He would also rely on a decision in the

case of Mukul Kumar Tyagi v. State of Uttar

Pradesh reported in 2020(4) SCC, 86. Paragraph

No.59 of the decision was pressed into service to

submit that the equivalence of qualification is a matter

of scrutiny by the Recruiting Agency. Self certification

or self declaration by a candidate cannot be said to be

fulfilling eligibility qualification.

9. Considering the submissions made by the learned

advocates for the respective parties, on 22.07.2022, this

Court directed opening of the sealed cover of the

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results. Based on the results it was found that only the

petitioner No.5 had successfully cleared his Written

Examination. Therefore, the findings recorded herein are

restricted to the petitioner No.5 since petitioner Nos.1 to

4 have failed in the Written Examinations, the petition

as far as they are concerned would stand dismissed.

10. Since the petitioner No.5 has been succeeded, what

needs to be considered is whether the nature of duty

carried out by the petitioner No.5 can be termed as

administrative duties. Black's Law Dictionary produced

by the learned advocate for the petitioner indicates that

"administration includes managing or conduct of an

office or employment; the performance of the Executive

Duties of an institution". This term therefore indicates

one has to look into the nature of duties performed by

the petitioner No.5. Performance Appraisal Reports

indicate that in the brief description of duties it is

expressly stated that the work allotted to the petitioner

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No.5 by the Deputy Municipal Commissioner is to

maintain inward outward of letters and files. Go through

all the files and personally assist by suggesting /

pointing out consequences in it. Correspondence has to

be done. Coordination with RMC officials during

meetings / various events, coordinate with various

Government of Gujarat and Government of India

departments for various reasons. Even the Resolution

dated 20.1.1996 indicates that there has been a

qualitative change as a result of computerization. The

work which was carried out by Junior Clerks earlier is

now being carried out by the Junior Data Entry

Operators. The designation therefore which earlier was

that was Junior Clerk has changed to Data Entry

Operator. The work has remained the same except

bringing in Computer Operation.

11. The contention of Mr. Gadhia that the petitioner No.5

waived his right as a result of asking for a higher pay

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scale which was granted by Resolution No.38 cannot be

held against the petitioner to claim appointment on the

higher post of Assistant Manager on which post, merely

because of an admission of their technical nature of

duties cannot be held against them.

12. As far as the decision in the case of Trivedi Himanshu

Ghanshyambhai (Supra) is concerned, the facts

therein indicate that the case of the appellant therein

was that he was working as an X-ray Technician at the

Behrampura Referral Hospital. There were no posts of

Clerk and, therefore, the appellant was discharging his

duty as X-ray Technician and also doing clerical and

administrative work collectively. According to the

appellant, he was collecting fees, entering the amount in

the cash book etc. The core question before the Hon'ble

Supreme Court was whether the appellant fulfilled the

requirement of ten years experience on the

administrative side for appointment to the post of

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Assistant Manager. Hon'ble Supreme Court after

considering the nature of duties held that it was evident

that though the appellant was an X-ray Technician he

was performing administrative work of more than ten

years. Paragraph Nos.9 to 15 of the decision read as

under:

"9. The core question that needs to be decided in this appeal is whether the appellant fulfilled the requirement of ten years experience on the administrative side for appointment to the post of Assistant Manager. As noted herein earlier, according to respondents 2 and 3, the appellant was not qualified for being appointed to the post of Assistant Manager in as much as he was working in the technical department as a technical hand and accordingly, the condition of ten years administrative experience could not be said to have been fulfilled in his case.

10. Before we deal with this question, we may state that respondents 2 and 3, who had challenged the appointments of the appellant and other selected candidates, were themselves unsuccessful and their names did not figure in the merit list as they had failed to pass the oral interview. Therefore, it is an admitted position that challenge to the appointment of appellant, to the post of Assistant Manager, was made by candidates who were themselves unsuccessful in the examination. Keeping this fact in mind, let us now proceed to consider whether the High Court was justified in setting aside the appointment of the appellant as an Assistant Manager in the Corporation. As noted herein earlier, although the appellant was working as an X-ray Technician, he claimed that he had the requisite experience of ten years on the administrative side as well. To substantiate his claim, he has pointed out a number of administrative duties performed by him

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while working as an X-ray Technician and which have already been narrated by us herein earlier.

14. It may be noted that for the purpose of applying for the post in question, the candidates were required to fill in forms, which were to be forwarded by the heads of their departments under whom they were working. Each form was required to be scrutinized by the respective head and only after being satisfied that a candidate was having more than ten years administrative experience, he was to make an endorsement in the application form and approve the same for being forwarded to the corporation. Therefore, from the above, it would be evident that it was only after scrutiny by the respective heads of the departments that the candidature of employees was forwarded to the Corporation for permitting them to appear in the written test and if successful, for an oral interview. In this case, there is no dispute that the application form of the appellant was duly signed by the Medical Officer who had endorsed and certified that the appellant was eligible to sit in the written test and if successful, in the oral interview, as he had fulfilled the requisite requirements. As noted herein earlier, a bare perusal of the form filled in by the appellant would clearly show that he had satisfied the condition of ten years experience on the administrative side. The certificates of administrative experience, in favour of all the candidates falling in the technical category, were issued by the Medical Officer of Health and counter signed by the Medical Officer-in- charge of Municipal Referral Hospital, Behrampura, AMC. In so far as the appellant was concerned, the medical officer in- charge of the Municipal Referrel Hospital, Behrampura, AMC, AM (Health), under whom the appellant was working as an X- ray technician issued the certificate on 10th of May, 2000, which was placed before the High Court in the writ petition. The certificate runs as under:

It is hereby certified that Shri Himanshu Ghanshyambahi Trivedi is rendering service since last 12 years at Health Department as X-ray technician. Since 22nd December, 1999 as per the GDEST 8313, he is holding the post of Assistant manager in the higher grade as

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well as fro the same date he has attended Engineering (Project) Division.

By the Health Department in the city of Ahmedabad five referral hospitals are run, Since 1983 referral hospitals began and since then no post of clerk is opened. Therefore, the technicians in each division as to compulsorily discharge the duties as technicians as well as administrative clerk. As a X-ray technician he has to perform the following administrative duties.

i) He has to perform the duty of taking X-ray of the patient. From each patient as per the rules of the Corporation he has to collect the money and issue receipt as well as to enter those amount collected in the case paper.

ii) He has to prepare X-ray register in which he has to record the name of the patient whose X-ray is taken.

iii) He has also to maintain the book and enter therein the details of the X-ray plates and X-ray films purchased by him and also to enter in the register the X-ray used by him and also to prepare the expense book, submit the same for audit by the Corporation and also to answer any queries regarding the same.

v) He has also to maintain X-ray date stock register and that is also audited from time to time and the responsibility of auditing is also upon him.

vi) The X-ray technician is holding independent charge and therefore, in his department he is responsible for reparation as well as for proper maintenance and also has to maintain other such registers. Thus for the records of the X-ray department as well as of other departments, he is responsible.

vii) That in the X-ray department need also

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arises for the sale of old X-ray films for which he has to contact the part whom the corporation has approved and thereafter as per the rules of the corporation he has to sell the old X-ray filings, collect money from him and issue receipt thereof and deposit the amount so collected with the Corporation. All these responsibilities are to be shouldered by him.

Thus X-ray technician has to discharge the obligation and has also to perform other duties. Over and above that he has also been discharging the administrative duties and works aforesaid compulsorily.

He has discharged technical as well as administrative duties diligently, honestly and satisfactorily. Till date has not allowed any complaint of any sort in his department. He holds a good moral character.

Sd/-

Medical Officer-In-Charge Municipal Referred Hospital, Behrampura, AMC AM (Health) Health Officer

From the aforesaid certificate, it would be evident that the appellant was having administrative experience, even though he was working as an X-ray technician. The stand taken by the Corporation before the High Court was also to the effect that the appellant had satisfied the requirement as to ten years administrative experience and, therefore, he could be appointed as an Assistant Manager. In so far as the appellant was concerned, the Corporation in paragraph 9 of the affidavit, filed before the High Court, stated as under:

It is alleged that one Mr. Trivedi Himanshi is X-ray Technician and therefore ought not to have been

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selected on the ground of lack of administrative experience. It is stated that Mr. Trivedi is holding the qualification of B.Sc. and LLB plus course of Radiology Branch. It is stated that Mr. Trivedi is working as X-ray Technician since 1984 and he is responsible not only the technical work, but also for clerical and administrative work of the said department. It is stated that there is no clerk in the Radiology Department of the Hospital and X-ray Technician has to do clerical work and has to work as an Administrative help qua the administration for maintaining the records about working of the Radiology Department.µ(Emphasis supplied).

12. Before the High Court, an affidavit in reply was also filed by the appellant along with the other selected candidates, inter alia, stating that the only allegation made against the appellant was to the effect that he was a man of technical cadre and lacked administrative experience and that it was put to rest by the certificate dated 10th of May, 2000 issued by the Corporation. It may be noted that the certificate dated 10th of May, 2000 was issued by the Corporation, at a time, when the writ petition was pending before the High Court. But, it must also be remembered that the application form of the appellant was forwarded by the Medical Officer under whom he was working, endorsing his signature thereon and thereby approving that the appellant was having more than ten years experience on the administrative side as well. Even if an objection is raised that the certificate dated 10th of May, 2000 issued by the Corporation cannot be looked into because it was issued at the time when

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the writ petition was already pending and not at the time of selection before the selection committee, even then, the endorsement and approval of the Medical Officer, under whom the appellant was working, was duly made and therefore cannot be overlooked.

13. In categorical terms, the Corporation had taken the stand before the High Court that in so far as the technicians are concerned, no clerks were appointed and therefore, the clerical/administrative work was also required to be done by the technicians. Apart from the aforesaid certificate, which enlisted the different administrative duties performed by the appellant, the endorsement in the application form by the Medical Officer approving the nature of administrative work performed by the appellant and forwarding the duly scrutinized form to the corporation, would clearly show that the appellant was performing administrative work for more than ten years in the Corporation. The said form was then examined and scrutinized by the Committee, which conducted the written test and thereafter, permitted the appellant to appear in the written examination for the post in question. The application form was also placed before the Interview Committee, which had conducted the oral interview of the appellant. It may be mentioned, as noted herein earlier, that the oral interview was conducted by a Five Member Interview Committee consisting of (i) Municipal Commissioner, Ahmedabad; (ii) Prof. Pestonjee, Indian Institute of Management, Ahmedabad; (iii) Dr. N.R. Dixit, Director, Som Lalit Institute and visiting faculty of Indian Institute of Management, Ahemdabd; (iv) Deputy Municipal Commissioner [Finance]; and

(v) Chief Auditor, Municipal Corporation,

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Ahmedabad who are all respected persons of the society. The five member interview committee, which consisted of eminent persons of the society, would not have allowed the appellant, who is a technical hand, to appear before them with out first satisfying themselves that the appellant had possessed ten years administrative experience. If the administrative experience shown in the application form could not be treated as a sufficient compliance with the requirement as to ten years experience on the administrative side, the interview committee, being an expert committee, could have rejected the candidature of the appellant on the ground that he did not possess the requisite administrative experience for appointment to the post of Assistant Manager in the corporation.

That apart, on the question of administrative experience of the appellant, who was working as an X-ray technician, no objection was raised either by the Examination Committee which conducted the written examination or by the Interview Board which conducted the oral interview. Even the candidates namely, the writ petitioners-respondents 2 and 3 herein did not raise any objection, by making a prayer, either before the examination committee or before the interview board, that the appellant lacked the requisite administrative experience for selection to the post in question. After scrutinizing and considering the application forms of all the candidates, they were directed to appear in the written test and thereafter, those who were found to have passed the written examination were directed to appear before the Interview Board for an oral interview.

15. From the record, it also appears that in the past, many persons, who were holding technical posts were

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promoted to administrative posts and subsequently have been further promoted. That apart, the corporation, at the time of inviting applications for appointment to the post in question, had never stated that the persons of technical cadre should not apply. On the contrary, the circular dated 13th of November 1997 clearly stated that candidates of all the departments were qualified to apply, on fulfilling the requirements laid down in the circular. The writ petitioners-respondents 2 and 3 herein cannot be permitted to raise the objection that the appellant could not have been considered for appointment, he being a technical hand without any administrative experience, after the appellant was selected along with the other selected candidates. It was open to the respondents 2 and 3 to raise such an objection at the initial stage, either in the written examination or at the time of the oral interview. Such objection was raised, for the first time, by the respondents 2 and 3, after the appellant successfully completed four months in his capacity as an Assistant Manager (his promoted post in the corporation). That apart, it appears from the judgment of the High Court that the High Court has quashed the appointment of the appellant only, although, the corporation had appointed seven other candidates, holding such technical posts. Therefore, we are unable to agree with the High Court that the administrative experience enlisted by the appellant in his application form, duly endorsed by the Medical Officer, could not be considered as an administrative experience of over ten years and therefore, the appointment of the appellant should be cancelled. In any view of the matter, it is not for the courts to find out whether a candidate, from the technical side, was having administrative experience of ten

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years when he applied for the post of Assistant Manager as we find that the manual of the Corporation clearly states that it was the sole discretion of the Municipal Commissioner to consider as to which post was technical or administrative. In our view, the High Court had failed to appreciate that the corporation, being the employer, is the best judge to decide whether the appellant had discharged the responsibilities on the administrative side and once the corporation came to a finding that the appellant had discharged not only the duties of an X- ray technician but also performed clerical/administrative work, particularly in view of the admitted fact that since 1984, no post of clerks was created in the Behrampura Referral Hospital, the High Court was not justified in concluding that the appellant did not possess the administrative experience of more than ten years."

13. This judgment therefore would rather support the case

of the petitioner No.5 rather than support the

Corporation.

14. As far as the decision of the Supreme Court in the case

of Mukul Kumar Tyagi (Supra) is concerned, it was in

context of equivalence of qualifications and not

experience and, therefore would not apply to the facts

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of the present case.

15. For the aforesaid reasons, this petition as far as

petitioner Nos.1 to 4 is concerned is dismissed. For the

petitioner No.5, the petition is allowed. The respondent