GELUS RAM SAHU Vs DR. SURENDRA KUMAR SINGH
Bench: HON'BLE THE CHIEF JUSTICE, HON'BLE MR. JUSTICE B.R. GAVAI, HON'BLE MR. JUSTICE SURYA KANT
Judgment by: HON'BLE THE CHIEF JUSTICE
Case number: C.A. No.-001667-001667 / 2020
Diary number: 36145 / 2016
Advocates: ASHWARYA SINHA Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1667 OF 2020 [Arising out of Special Leave Petition(C)No. 32417 OF 2016]
Gelus Ram Sahu and others ..... Appellants(s)
VERSUS
Dr. Surendra Kumar Singh and others .....Respondents(s)
WITH
CIVIL APPEAL NO.1668 OF 2020 [Arising out of Special Leave Petition(C)No. 10647 OF 2017]
JUDGMENT
Leave Granted.
2. The appellants are aggrieved by the order dated 28.09.2016 of
the High Court of Chhattisgarh through which the writ petition filed
by Surendra Kumar Singh (Respondent No. 1) seeking declaration of
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Ph.D. being an essential qualification for the post of Principal at the
Polytechnic colleges was allowed and consequently appointment of the
appellants were quashed for want of the said qualification.
FACTS
3. Respondent No. 1 started teaching as a lecturer of electrical
engineering at the Govt Polytechnic College, Ambikapur on 10.11.1993
and was promoted as the Head of Department (hereinafter, “HOD”) of
electrical engineering at the Govt Polytechnic, Durg from 03.03.2009.
He is presently working at Govt. Polytechnic, Kabirdham with
additional responsibility of Principalincharge. Having completed
three years of service as HOD on 01.01.2012, Respondent No. 1
applied for the post of Principal in response to the process of
promotion initiated by the State of Chhattisgarh (Respondent No. 2) in
2014. Along with Respondent No. 1, numerous other serving HODs
(including the seven appellants herein) too participated in the selection
process. Whereas Appellants No. 1 to 7 were declared successful
through notification dated 25.06.2014, the 1st respondent did not
figure in the selection list.
4. Respondent No. 1 being aggrieved approached the High Court,
complaining that his fundamental rights stood violated as the
promotion process was in contravention of the ‘Pay Scales, Service
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conditions and Qualifications for the Teachers and other Academic
Staff in Technical Institutions (Diploma) Regulations, 2010’
(hereinafter, “2010 AICTE Regulations”). These regulations were
framed by All India Council for Technical Education (Respondent No.
3, hereinafter “AICTE”) in exercise of its powers conferred under the
AICTE Act, 1987 which has been enacted by Parliament with
reference to Entry 66 of the Union List contained in Schedule VII of
the Constitution; and is thus binding on the State of Chhattisgarh
(Respondent No. 2). The ‘Chhattisgarh Technical Education (Teaching
cadrePolytechnic) (Gazetted) Service Recruitment Rules, 2014’
(hereinafter, “2014 Chhattisgarh Rules”), in so far as they allow
candidates without Ph.D to be appointed as Principals, were
contended to be illegal for being in contravention of the 2010 AICTE
Regulations whereunder, according to respondent No. 1, Ph.D degree
was a mandatory qualification for the post of Principal.
5. Respondent No. 1 butressed his superior claim highlighting that
he had the requisite threeyear HOD experience and there was no
complaint or disciplinary enquiry pending against him. On the other
hand, he urged that the appellants had been promoted though none of
them was having Ph.D qualification. He further alleged several other
irregularities in the selection process, including the below
specification ACR gradings possessed by certain candidates.
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Accordingly, Respondent No. 1 sought quashing of the 2014
Chhattisgarh Rules and the promotion order dated 25.06.2014; review
of the proceedings conducted by the Departmental Promotion
Committee and the grading awarded to him in his Annual Confidential
Reports of 2012 and 2013, and further sought resultant
reconsideration of his case for promotion from HOD to Principal.
6. The High Court viewed that the 2010 AICTE Regulations were
binding, and relying upon a decision of the High Court of Kerala in B
Ajith Kumar v. State of Kerala1, it held that the State Government
could not lower the qualification threshold. Further, the High Court
interpreted the AICTE criteria to imply that Ph.D was mandatory for
appointment/promotion as ‘Principal’ and any ambiguity which could
plausibly have existed in the initial formulation of 2010 AICTE
Regulations, had been clarified through the ‘All India Council for
Technical Education (clarifications on certain issues/anomalies
pertaining to Qualifications, Pay Scales, Service Conditions, Career
Advancement Schemes (CAS) etc. for Teachers and other Academic
Staff of Technical Institutions Degree/Diploma), 2016’ (hereinafter,
“2016 AICTE Notification”) which although published on 04.01.2016
would operate retrospectively being clarificatory in nature.
1 (2009) 3 KLJ 563.
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Consequently, the High Court quashed the incongruous parts of 2014
Chhattisgarh Rules.
7. The High Court further observed how Appellant No. 1 was
Chairman of the very Committee which drafted the 2014 Chhattisgarh
Rules, making him an interested party. Noting yet other infirmity
regarding the date of publication of 2014 Chhattisgarh Rules in the
official gazette, the High Court quashed the order promoting Appellant
Nos. 1 to 7 to the posts of Principal of the Polytechnic Colleges.
CONTENTIONS
8. The distressed appellants contend before us that there existed
no ambiguity in the 2010 AICTE Regulations. These regulations clearly
mention “or” between two sets of qualifications, one in which Ph.D was
specified and the other without such prescription. It is submitted that
the High Court could hence not have read it in a manner which
converted “or” into “and”. It was further submitted that even if any
ambiguity existed, it was not open for the AICTE to retrospectively
introduce an eligibility condition in a manner which would expropriate
the appellants of their vested rights.
9. Highlighting how seven out of nine positions would remain
vacant in case a Ph.D degree was mandated as an essential
qualification for the posts of Principal in polytechnic colleges in
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Chhattisgarh, the appellants vociferously sought intervention of this
Court. They further urged that having participated in the process of
promotion, Respondent No. 1 had acquiesced to the interpretation and
understanding of the Rules made by Respondent No. 2, and the former
was now estopped from challenging the validity of the selection
process or of the 2014 Chhattisgarh Rules.
10. Respondent No. 1, on the other hand, reiterated that the AICTE
is a statutory body established by the Parliament through the All India
Council for Technical Education Act, 1987, and thus enjoys complete
supremacy and superintendence over determination of standards for
technical education. All technical institutions across the country are
obliged to adhere to the minimum standards laid down by AICTE.
Supporting the High Court’s interpretation, he maintains that since
the 2010 AICTE Regulations mandated ‘Ph.D in Engineering’ as one of
the essential qualification for the post of Principal, the 2014
Chhattisgarh Rules were ultra vires for having impermissibly relaxed
mandatory qualifications. The 1st Respondent adverts to certain other
procedural irregularities in framing and publication of the 2014
Chhattisgarh Rules, and additionally alleges that Respondent No. 2
not only violated the Chhattisgarh Public Service Promotion Rules,
2003 but also arbitrarily altered the minimum grading requirement to
favour certain candidates.
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11. Respondent No. 3 (AICTE) has submitted that it was not their
case that candidates who had already been promoted to the posts of
Principal despite not possessing Ph.D, should be removed. Drawing
attention to various relevant provisions of the 2010 AICTE Regulations
read with the 2016 AICTE Notification, learned counsel for AICTE
urged that any interpretation by this Court holding Ph.D mandatory
ought only be prospective in application, and not retrospective.
ANALYSIS
12. The AICTE Act, 1987 has been enacted, as explained briefly in
para 4 of this order with an explicit power to set up an Expert Body to
regulate the standards and norms in technical education and for
establishment of institutions imparting such education. It is not a
matter of dispute that AICTE is a creation of the said statute and the
Regulations framed by it in exercise of the powers under the AICTE
Act, 1987 carry the force of law. Indeed, it has been accepted by
learned counsel for the parties that the 2010 AICTE Regulations would
be the governing law, holding the field, and would bind all parties,
including the State of Chhattisgarh. The foremost question which thus
arises for our consideration is whether the 2010 AICTE Regulations, in
fact, make it mandatory for candidates vying for the post of Principal
to possess a Ph.D degree?
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(i) Is Ph.D mandatory for appointment to the post of
‘Principal’ under the 2010 AICTE Regulations?
13. The cause of the present controversy is not difficult to fathom.
Prerequisite criteria for appointment to the post of Principal in a
Polytechnic College has been provided under the 2010 AICTE
Regulations in a tabulated form, relevant parts of which are extracted
below:
Post Qualifications Experience PRINCIPAL
Qualification as above for the post of Head of Department and Ph.D in Engineering
OR Qualification as above for the post of Head of Department
Minimum of 10 years relevant experience in teaching/research/industry out of which at least 3 years shall be at the level of head of department or equivalent.
In case of Architecture, professional practice of 10 years as certified by the Council of Architecture shall also be considered valid.”
14. Since the above reproduced clause enables a ‘Head of
Department’ to occupy the next higher post of Principal `with’ or
`without’ Ph.D qualification, it is necessary to find out the eligibility
conditions laid down for appointment of different Heads of
Department. The relevant extracts of HOD criteria are thus
illustratively reproduced hereunder:
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Post Qualifications Experience Head of Department Engineering / Technology
Bachelor’s and Masters degree of appropriate branch in Engineering / Technology with First Class or equivalent either Bachelor’s or Master’s level
OR
Bachelor’s degree and Master’s degree of appropriate branch in Engineering / Technology with First Class or equivalent either Bachelor’s or Master’s level and
Ph. D or equivalent, in appropriate discipline in Engineering / Technology
Minimum of 10 years relevant experience in teaching / research / industry.
Minimum of 5 years relevant experience in teaching / research / industry
NOTE: Since the qualifications and experience for the post of Heads of Pharmacy,
Hotel Management & Catering Technology and Architecture Departments are also
identical except that the qualification and experience must be only in the relevant
subjects, the same have not been reproduced to avoid multiplicity.
15. A perusal of the qualification table makes it obvious that there
can be multiple HODs for different departments (like Engineering,
Architecture, Hotel Management, Pharmacy etc). In order to be HOD of
any such Department, a prospective candidate needs to have both
Master’s and Bachelor’s degrees in the relevant field. Whereas
candidates with a Ph.D must have had 5 years of experience in the
allied field, others without it must have worked for 10 years. Phrased
differently, Ph.D is not mandatory for HOD, and instead results in a 5
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year relaxation in requisite work experience. In other words, Ph.D has
been treated equivalent to 5 years teaching experience.
16. The interpretation as propounded by Respondent No. 1 would
necessarily mean that there is no power with a State Government to
make Ph.D optional, and that the higher of the two alternate criteria
specified under the 2010 AICTE Regulations would be binding on all.
We find such a plea is problematic on two counts. Firstly, it implies
that Ph.D, specifically in ‘Engineering’ only, would be compulsory for
all principals. This creates an inconsistency as such a restriction
would be in conflict with the nature of ‘experience’ specified by the
AICTE, like recognition of Experience Certificate granted by the
Council for Architecture, which undoubtedly shows that there can be
candidates other than from the field of ‘Engineering’ eligible for
appointment as Principal. Secondly, such a contention would be
iniquitous in so far as it disenfranchises HODs from multiple
recognised departments from applying to the posts of Principal, and
arbitrarily restricts the zone of consideration to Engineering HODs
only. Such seems to be neither the intent of the 2010 AICTE
Regulations nor is it supported by any cogent reasoning.
17. We are also not inclined to read down the rules to omit the ‘in
Engineering’ part and only selectively insist upon a ‘Ph.D’, for in the
present facts it would amount to crossing the fine line between
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interpretation and legislation. Hence, the only permissible way to read
the AICTE criteria would be to lay emphasis on the phrase “or” and
hence interpret ‘Ph.D in Engineering’ as being optional and it being
discretionary upon the adopting institution/State Government to
specify either of the two criteria.
18. This does not mean that we have not given due weightage to
Ph.D degree while interpreting the 2010 AICTE Regulations. A
candidate with Ph.D degree can become HOD with merely 5 years of
work experience, whereas candidates without Ph.D need to work for
10 years. Although, requirement of experience for becoming Principal
is 10 years uniformly, it comes with a stipulation that 3 years must
have been spent as HOD or in an equivalent position. Thus, a
candidate without Ph.D would compulsorily need 10 years’ experience
for HOD and would need to work further 3 years in that capacity, i.e.
for minimum of 13 years’ experience to become Principal. Those with a
Ph.D on the other hand, can apply for principalship within 10 years,
as they would have become eligible for HOD with 5 years experience,
and could have completed the further 3 years term as HOD in the
interregnum. Hence, hypothetically, there is a 5year eligibility
relaxation granted under AICTE Regulations to those with a Ph.D.
19. The aforestated advantage is only further exacerbated under the
2014 Chhattisgarh Rules, where those without a Ph.D need 15 years’
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experience and those with such higher degree, can be appointed
within 10 years. This can be well demonstrated from the following
extracts of 2014 Chhattisgarh Rules:
Sl. No.
Name of posts
included in service
Minimum age limit
Maximum age limit
Prescribed educational education
Remarks
1 2 3 4 5 6
1 Principal 58 years (1) Bachelor and Master degree of appropriate branch in Engineering/ Technology from a recognized University/Institute with First Class or equivalent at either Bachelor’s or Master’s level.
(2) Minimum of 15 years relevant experience in teaching/research/ industry out of which at least 03 years shall be at the level of head of department.
OR
(1) Bachelor and Master degree of appropriate branch of Engineering/ Technology from a recognized
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University /Institute with First Class or equivalent at either Bachelor’s or Master’s level and Ph.D or equivalent in appropriate discipline in Engineering/ Technology from a recognized University/Institute.
(2) Minimum of 10 years relevant experience in teaching/research/ industry out of which at least 03 years shall be at the level of head of department or equivalent.
HEAD OF DEPARTMENT
1 Civil/Mechanic al/Electrical/El ectronics/ Information Technology/ Instrumentatio n/Metallurgy/ Mining/Chemic al/Computer Science and Engineering
58 years Bachelor’s and Master’s degree of appropriate branch in Engineering/ Technology from a recognized University/Institute with First Class or equivalent at either Bachelor’s or Master’s level.
OR
Bachelor’s and Master’s degree of appropriate branch in Engineering/ Technology from a recognized University /Institute with First Class or equivalent
Minimum of 10 years relevant experience in teaching/ research/ industry.
Minimum of 05 years relevant experience in teaching/
research/ industry.
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at either Bachelor’s or Master’s level and Ph.D or equivalent in appropriate discipline in Engineering/ Technology from a recognized University/Institute.
xxx xxx xxx
20. Additionally, construction of 2010 AICTE Regulations this way,
avoids conflict with the 2014 Chhattisgarh Rules, as extracted above.
Even otherwise, given a choice between two interpretations, one which
restricts the pool of applicants for public employment and another
which enfranchises many, it would befit the spirit of Article 16 that
the expansive interpretation is adopted. Such a recourse would both
provide opportunities to a wider meritorious class, will increase
competition and concomitantly ensure meritorious selections.
(ii) Does the 2016 AICTE Notification retrospectively ‘clarify’
eligibility conditions for appointment as ‘Principal’?
21. The next question which logically arises is whether the
notification issued by the AICTE in 2016 changes the eligibility
conditions which are explicit in the 2010 AICTE Regulations, as
discussed above.
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22. The 2016 AICTE Notification has made a significant impact upon
the High Court’s determination of the present dispute. The High Court
has held that the said Notification, clearly specified through Issue No.
64 that Ph.D was compulsory for all Principals. As the notification was
`clarificatory’, it was held applicable retrospectively which would
remove any ambiguity created by the 2010 AICTE Regulations and
consequently the appellants were ineligible to hold the posts of
‘Principal’. The reliedupon Issue No. 64 reads as under:
SI. No.
Issue Clarification
64. Whether Ph.D is an essential qualification for the Post of Principal in Diploma Level Technical Institutions.
Yes
23. The appellants as well as the AICTE have drawn our attention to
Issue No. 48 in the same table of 2016 AICTE Notification which, they
contend, depicts a contrary picture. The relevant part of the 2016
Notification which has not been noticed by the High Court reads as
under:
SI. No.
Issue Clarification
48. Whether a faculty of Engineering & Technology with minimum 10 years relevant experience in teaching/research out of which 3 years is in the same grade Pay (i.e. Rs.9000) at par with HOD is eligible for the post of Principal in Polytechnic.
Yes, provided the person also has an administrative experience of at least 3 years.
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24. After going through the contents of the 2016 AICTE Notification
in its entirety, we are of the opinion that the conclusion drawn by the
High Court is erroneous for a variety of reasons. At the very outset, no
attempt appears to have been made to determine the nature of the
2016 AICTE Notification, as to whether it supplements an obvious
omission in the 2010 AICTE Regulations and most importantly its
effect on those who have meanwhile acquired vested rights.
25. ‘Clarificatory’ legislations are an exception to the general rule of
presuming prospective application of laws, unless given retrospective
effect either expressly or by necessary implication. In order to attract
this exception, mere mention in the title or in any provision that the
legislation is ‘clarificatory’ would not suffice. Instead, it must
substantively be proved that the law was in fact ‘clarificatory’, as noted
by this Court in Virtual Soft Systems v. CIT2:
“50. It may be noted that the amendment made to Section 271 by the Finance Act, 2002 only stated that the amended provision would come into force with effect from 142003. The statute nowhere stated that the said amendment was either clarificatory or declaratory. On the contrary, the statute stated that the said amendment would come into effect on 142003 and therefore, would apply only to future periods and not to any period prior to 142003 or to any assessment year prior to Assessment Year 20042005. It is the wellsettled legal position that an amendment can be considered to be declaratory and clarificatory only if the statute itself expressly and unequivocally states that it is a
2 (2007) 9 SCC 665.
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declaratory and clarificatory provision. If there is no such clear statement in the statute itself, the amendment will not be considered to be merely declaratory or clarificatory.
51. Even if the statute does contain a statement to the effect that the amendment is declaratory or clarificatory, that is not the end of the matter. The Court will not regard itself as being bound by the said statement made in the statute but will proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is an amendment which is intended to change the law and which applies to future periods.”
(emphasis supplied)
26. The present case is one where except for the title, nothing
contained therein indicates that the 2016 AICTE Notification was
clarificatory in nature. The said Notification is framed in a question
answer style and merely restates what has already been made explicit
in the 2010 AICTE Regulations. There seems to be no intent to alter
the position of law but instead only to simplify what the AICTE had
resolved through its original regulation. The 2016 AICTE Notification
is a response to the doubts put forth to AICTE by the public. This is
evident from the stand put forth by AICTE before us in its reply as well
as during the course of hearing, namely, that there is no retrospective
alteration in the qualification prescribed for the post of Principal.
27. Even if the 2016 AICTE Notification was clarificatory, it must be
demonstrated that there was an ambiguity in the criteria for
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appointment to the posts of Principal, which needed to be remedied.
Clarificatory notifications are distinct from amendatory notifications,
and the former ought not to be a surreptitious tool of achieving the
ends of the latter. If there exists no ambiguity, there arises no
question of making use of a clarificatory notification. Hence, in the
absence of any omission in the 2010 AICTE Regulations, the 2016
AICTE Notification despite being generally clarificatory must be held to
have reiterated the existing position of law.
28. As discussed earlier, there were no two interpretations possible,
and hence Issue Nos. 48 and 64 of 2016 AICTE Notification have, in
no uncertain terms, reprised the substance of 2010 AICTE
Regulations.
(iii) Whether retrospective changes in qualificatory
requirements can affect the existing appointments?
29. Having held that the 2016 AICTE Notification is only
complementary to what the AICTE had laid down in 2010, we may
hasten to add that even in a situation where eligibility conditions are
clarified from an anterior date, it may not be prudent to affect the
appointments which had been made on the basis of a possible
understanding of the eligibility conditions.
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30. This Court in a range of decisions including TR Kapur v. State
of Haryana3, K Ravindranath Pai v. State of Karnataka4 and K
Narayanan v. State of Karnataka5, has opined that vested rights
cannot be impaired by enacting law with retrospective effect and that
such statutory rules ought not to result in any discrimination or
violation of constitutional rights.
31. The law on vested rights in service matters has exhaustively
been elaborated in Railway Board v. Rangadhamiah,6 wherein it
has been stated:
“20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.
xxx
24. In many of these decisions the expressions “vested rights” or “accrued rights” have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking
3 1986 Supp SCC 584. 4 1995 Supp (2) SCC 246. 5 1994 Supp (1) SCC 44. 6 (1997) 6 SCC 623
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away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. ...”
32. The aforestated principle would apply with equal force on the
outcome of judicial review also and any new meaning given to a set of
Rules/Regulations by the court of law would not ordinarily unsettle
the settled appointments or conferment of other service benefits. We
are, nevertheless, fully conscious of the legal position that
appointment of a candidate who has erroneously secured public
employment without fulfillment of minimum qualifications can always
be annulled upon discovery of mistake. An appointment which is
erroneous or illegal from the very inception does not clothe the
appointee with any indefeasible right and such appointment is always
subject to correctional decisions.
33. There is no quarrel that the appellants herein do not possess
Ph.D. However, they satisfied the requirement of having fifteen years’
experience (of which at least three years was as HOD) under the 2014
Chhattisgarh Rules and were found suitable for promotion by the
Departmental Promotion Committee on the basis of various other
material. They have also been found in possession of one of the
eligibility criteria prescribed under the 2010 AICTE Regulations. We
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are, thus, of the considered opinion that the appellants’ appointments
ought to remain undisturbed in any eventuality.
34. This takes us to the last objection taken by the High Court
regarding ‘conflict of interest’. It is not in dispute that the State
Government had inducted Appellant No. 1 in a Committee which
submitted the draft service rules. It is, however, difficult to accept
(nor has it been alleged) that the said appellant held a position
through which he could influence the rulemaking authority to
exercise its powers under Proviso to Article 309 of the Constitution as
per his wishes. He was holding too small a position that no inference
of his dominance in the decision making process can be drawn.
CONCLUSION
35. In the light of the above discussion, the appeals are allowed. The
judgment of the High Court is set aside and the writ petition filed by
Respondent No. 1 challenging the promotion of appellants is dismissed
but without any order as to costs.
………………………….CJI (S.A. BOBDE)
……..……………………..J. (B.R. GAVAI)
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…………………………… J. (SURYA KANT)
NEW DELHI
DATED : 18.02.2020
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