S.A. Shah, J.
1. In this group of petitions the petitioners have challenged the orders passed by the authorities and the vires of the Gujarat Panchayat Services (Classification and Recruitment)(Second Amendment) Rules, 1977 on the ground that the said rules changed their conditions of service prejudicial to their right of promotion and therefore, these rules are contrary to the provisions contained in Section 206 of the Gujarat Panchayats Act (hereinafter referred to as 'Panchayat Act') and are liable to be struck down. In this group of petitions common questions regarding vires of above rules and application of other circulars are are raised, they are disposed of by this common judgment.
2. Before we consider the common contentions of these petitioners some facts are necessary to be mentioned. The Panchayat Act came into force in this State with effect from 1st April, 1963. The petitioners of Special Civil Application No. 294 of 1978 claim to have been allocated to the Panchayat Service under the provisions of Section 206 of the Panchayat Act. Prior to their allocation all of them were working in the Revenue Department of the State of Gujarat. After their allocation to the Panchayat Service they were appointed to the Revenue Branch as clerk in Baroda District Panchayat. In the year 1967, in exercise of powers under Section 323 of the Panchayat Act, the State of Gujarat framed rules known as the Gujarat Panchayat Services (Classification and Recruitment) Rules, 1967 (hereinafter referred to as Recruitment Rules of 1967). Under these rules the Panchayat Services were reorganised into different branches, namely, agriculture, public works medical, animal husbandry, public health, revenue and rural developmeni etc.
3. It appears that the petitioners were promoted to the post of Avalkarkuns in the year 1968-69 as a stop-gap arrangement purely on ad hoc basis in accordance with Government circulars. One of such circulars is produced at Annexure-A. At this stage it is necessary to reproduce the statutory provisions in respect of promotion to the post of Avalkarkuns. Rule 2 of Recruitment Rules, 1967 reads as under:
Appointment to the posts of Avalkarkuns shall be made (a) by direct selection on the result of a competitive examination held by the Gujarat Panchayats Service Selection Board in accordance with the scheme approved by the Government or (b) by promotion from amongst the clerks of the Revenue Branch of Panchayat Service working in the District who have passed Revenue Qualifying Examination according to the date of passing the said examination, and if the dates are the same, then, according to the rank obtained in the Examination, and if the rank also happens to be the same then by seniority of length of service.
4. It appears that till the year 1968-69 no qualified clerks were available for promotion to the higher cadre of Avalkarkun. A circular dated 28th April, 1969, Annexure-A to the petition, was issued by the State Government which reveals the position as stated above and instructions were issued to the effect that till qualified clerks are available for promotion to the post of Avalkarkuns those clerks who have passed subservice departmental examination, those who have obtained diploma of the local self-Government or those who have qualified to be appointed as Accounts Clerks may be provisionally appointed as Avalkarkuns purely on ad-hoc basis as a temporary arrangement till qualified persons are available. It appears that on account of the previous circular of the Government dated 28th August, 1968, and this circular, the petitioners have been promoted povisionally as Avalkarkuns.
5. In the year 1977, the Recruitment Rules of 1967 were further amended by the Government called the Gujarat Panchayat Services (Classification and Recruitment)(Second Amendment) Rules, 1977 (hereinafter referred to as 'the amended Rules')- Under the provisions to of these rules the Panchayat services were reconstituted and divide into two cadres, namely, clerical cadre (group) and accounts cadre (group). Further, in the clerical cadre the posts have been divided into three groups (group 1, group 2 and group 3) whereas in the accounts cadre the posts were divided into four groups (group 1, group 2, group 3 and group 4). Promotions to the higher groups were to be made from the eligible candidate of the lower group.
6. Mrs. Mehta, learned advocate appearing for the petitioners in Spl. C.A. No. 294 of 1978 has taken us through the various provisions of the amended rules and submitted that (1) petitioners are required to opt either clerical cadre or accounts cadre. Therefore, the chances of promotion will be reduced and will be available only in one group (cadre); (2) She has further stated that some new posts have also been brought in respective cadre with the result that some more incumbents of those posts will also be eligible for further promotion and thereby the petitioners' chances for promotion to the higher cadre will be further reduced; (3) That the allocation of the petitioners in the respective cadre will be arbitrary and oppresisve since no guidelines have been prescribed by the rules. Mrs. Mehta, therefore, says that the new rules being prejudicial to the rights guaranteed under Section 206 of the Panchayat Act are clearly ultra vires the powers of the State Government, and therefore, are liable to be struck down.
7. The learned counsels appearing on behalf of the petitioners in other petitions have also adopted the arguments and submissions made by Mrs. Mehta and since we have already reproduced all the contentions that have been raised by the respective petitioners we deal with them together.
8. Let us consider the contentions raised by Mrs. Mehta, one by one. Firstly, the contention of Mrs. Mehta that by enactment of the amended rules the promotional rights of the petitioners have been prejudicially affected has no merit because it has been settled since long right from the decision in the case of State of Mysore v. G.B. Purohit C.A. No. 2281 of 1965, decided on 25-1-1967 (S.C.) which has been confirmed by the subsequent decision of the Supreme Court in R.S. Deodhar v. State of Maharashtra : (1974)ILLJ221SC , wherein the Supreme Court has in terms observed that the chances of promotion is not a condition of service and a competent legislative authority has ample power to enact rules effecting the chances of promotions. In para 12 of the judgment the Supreme Court observed as under:
It is now well settled by the decision of this Court in State of Mysore v. G.B. Purohit C.A. No. 2281 of 1965 D/-25-1-1967 (SC) that though a right to be considered for promotion is a service, mere chance of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. In Purohit's case the districtwise seniority of sanitary inspector was changed to Statewise seniority, and as a result of this change the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115 Sub-section (7). This contention was negatived and Wanchhoo, J. (as he then was), speaking on behalf of this Court observed:
It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service. It is, therefore, clear that neither the rules of 30th July, 1959, nor the procedure for making promotions to the posts of Deputy Collector divisionwise varies the conditions of service of the petitioners to their disadvantage. The proviso to Section 115, Sub-section (7) is accordingly not attracted and the Rules of 30th July, 1959 cannot be assailed as invalid on ground of non-compliance with that proviso'.
9. Proviso to Section 115(7) was to the effect that the conditions of service cannot be changed without the prior approval of the Central Government and the point before the Supreme Court was as to whether the impugned rules were changing the conditions of service to the prejudice of the petitioners of that petition.
10. It is not the contention or submission of Mrs. Mehta that there arc no promotional avenues available to the petitioners, hither they are allocated to clerical cadre or accounts cadre. On the contrary looking to the rules it appears that more promotional avenues have been opened and the petitioners, if they are eligible, will be entitled to further promotions to each and every post in the higher cadre.
11. It has been now well settled position of law that the Government has ample powers to create as many cadres as they like. In the case of S.D. Sharma and Anr. v. The State of Gujarat and Ors. 1977(2) S.L.R. p. 505, the Division Bench of this High Court consisting of Section Obul Reddi, C.J. (as he then was) and my learned Brother N.H. Bhatt, J. observed as under:
We may at the outset point out that it is the prerogative of the Government to constitute as many services as may be necessary for the convenient and efficient administration of the State. The Government of Gujarat had taken a policy decision to constitute the Gujarat Administrative Service and the Government also had the prior approval of the Central Government. It is only thereafter that the Administrative Service was constituted with a separate constitution. It was the policy decision taken by the Government and the validity of such a policy decision cannot be questioned under Article 226 of the Constitution of India.
12. In the present case the Government has reorganised the services and has created two cadres which are scientific and logical and it cannot be said that any right of the petitioners have been violated. On the contrary instead of getting promotion in respective branch all the petitioners will be entitled to numerous posts in two cadres in their respective cadres to which they have opted or may opt hereinafter.
13. The third contention of Mrs. Mehta that several new posts have been included, namely, computers, typists, etc., has no merit on the same ground as stated above, i.e. the administrative powers of the Government to reorganise the service, and if the Government has included these new posts in the respective cadre no objection can be taken.
14. Contention of Mrs. Mehta that rules are oppressive and there is no guideline of allotment has no merits. There is no arbitrary treatment meted out to the petitioners. After the enactment 2nd amendment rules are further amended by Gujarat Panchayat Services (Classification and Recruitment)(8th Amendment) Rules, 1978. Rule 3 is a complete answer to the submissions of Mrs. Mehta which is, being material, reproduced below:
3. For the purpose of allotment to the common clerical cadre and the common accounts cadre, the Panchayat Servants specified in the Table below shall be given notice for exercising option for allotment either in the common clerical cadre or in the common accounts cadre. Such option shall be exercised within a period of three months from the date on which the notice is served. Such notice shall be served on such servant individually. If the number of servants who opt for a particular cadre exceeds the number of posts available in that cadre, the Committee shall finalise the allotment of such servants taking into consideration the following matters, namely:
(a) length of service rendered by the servant and the experience of work he has gained during the service.
(b) educational qualifications of the servants.
(c) suitability of the servant for allotment in the particular cadre which shall be determined by holding oral test.
15. It is very clear from the aforesaid 8th amendment rules that the appointment to the respective common cadre is not to be done by the Government at its sweet will, and option has been given to the petitioners to opt for either of the common cadres. In case there are more applicants to a particular cadre then their allotment shall have to be made according to the principles which have been laid down in these amended rules, by the Committee. Mrs. Mehta has not been able to point out whether any of these three principles which have been enacted in these rules, are extraneous or are irrational. Having regard to the fact that option having been given to the petitioners, and in case if the number of applicants to a particular cadre is more, an independent Committee is to be appointed to make allotment orders according to the principles laid down in the rules, all the possibility of arbitrariness is ruled out. In the circumstances stated above Mrs. Mehta is not able to point out that the 8th amendment rules are in any way objectionable.
16. In the aforesaid view of the matter Mrs. Mehta or any other counsel for the petitioners was not able to show as to how the second amended rules, or 8th amended rules are prejudicial to the service conditions of the petitioners who are protected under Section 206 of the Panchayat Act. We, therefore, hold that the second amendment rules and 8th amendment rules are intra vires and are valid piece of enactments and cannot be struck down as prayed.
17. Mrs. Mehta having realised that the rules are intra vires have attacked the orders which have been passed by the District Development Officer at Anncxure-9, whereby some of the petitioner have been reverted to the lower cadre. Argument of Mrs. Mehta was that till options are exercised and allotment to the respective cadre of clerical group or accounts group are made and thereby the position is clearly ascertained the respondents cannot revert the petitioners from the post of Avalkarkuns to their lower permanent post. We are not inclined to accept such broad proposition of Mrs. Mehta because, it is now clear that the promotions to the higher posts of Avalkarkuns can be given under the statutory recruitment rules of 1967 to the clerks only if they have passed the revenue qualifying examination and it is an admitted position that the petitioners have not passed the revenue qualifying examination and, therefore, the petitioners are not entitled as a right to continue on the post of Avalkarkuns under the provisions of Rule 2 of 1967 Recruitment Rules.
18. As we have stated above, the petitioners have been promoted as a stop-gap arrangement on the basis of their seniority on account of non-availability of the qualified clerks. Now, if it is found that the petitioners were not senior in the respective lower cadre under the 1967 Rules such junior petitioners cannot be continued as Avalkarkuns in derogation of the rights of other senior employees of the respective cadre. It is an admitted position that the petitioners have been promoted as a slop-gap arrangement and, therefore, if any employee senior to the petitioners of the respective cadre is available to continue the said junior and to grant promotion even on ad hoc basis would definitely be discriminative and the senior employees in the respective cadre have a right to demand promotion in place of the petitioners till final seniority is not decided under the provisions of amended rules which is likely to take time on account of above situation. Till that time the competent authority of the panchayat will be entitled to rearrange the promotions even by reverting the petitioners, if found junior to the other claimants. Otherwise to continue a junior in derogation of the right of the seniors will be obviously discriminative and illegal.
19. Since we have no material before us to know the seniority of the petitioners or any other persons in the lower cadre it is not possible for us to give any opinion. It is for the competent authority to decide this question of promotion or demotion in the light of the observations which we have made in this judgment. Though several ancillary points were raised in these petitions, none has been pressed nor argued by the advocates appearing on behalf of the petitioners. Therefore, we have limited our observations to the points raised and argued before us.
19.1. The amended rules have come into force in May 1977 and sufficient time has passed since then. The authorities who were charged with the task of implementing these amended rules will immediately take up this question on hand and give options (if not already given) to each and every employee who is entitled to such option under these rules by serving personal notice and decide their respective claims following the provisions of 8th amendment rules, as early as possible, preferably within a period of six months from today so that the respective employees can have a clear picture of their seniority and promotional chances.
20. In the result the impugned rules, namely, the Gujarat Panchayat Services (Classification and Recruitment)(Second Amendment) Rules, 1977 and the Gujarat Panchayat Services (Classification and Recruitment)(8th amendment) Rules, 1978 are held intra vires. The petitions are, therefore, rejected. The interim relief stands vacated subject to the observations made by us. Rule is discharged with no order as to costs.