Himachal Pradesh High Court
Satish Jamwal And Others vs State Of H.P. And Others on 30 November, 2015
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
LPA No. 8 of 2011 Reserved on: 02.11.2015 Date of decision: November 30, 2015.
Satish Jamwal and others ..... Appellants
of
Vs.
State of H.P. and others .... Respondents
Coram
rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?Yes For the Appellants : Mr. R. K. Gautam, Senior Advocate with Ms. Archana Dutt, Advocate.
For the Respondents : Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan, Mr. Romesh Verma, Addl. Advocate Generals and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 1 and 2.
Tarlok Singh Chauhan, Judge This Letters Patent Appeal is directed against the judgment passed by the learned writ Court on 30.12.2010 whereby the prayer of the petitioners/appellants for quashing the Recruitment and Promotion Rules for the post of District Audit Officer/Instructor (Class-II) in the Department of Panchayati Raj, Himachal Pradesh has been dismissed.
2. Briefly stated, the facts of the case are that the appellants were working as Panchayat Inspectors, whereas the private respondents as Auditors with the respondent No.2. Prior to the year 1999, the Auditors used to be promoted as D.A.O. (12 posts) and Panchayat Inspector as _____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ?
::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 2Instructor (6 posts), but in order to give equal opportunities to both categories, the Recruitment and Promotion Rules were amended on .
15.7.1996 wherein the provision of 50% to the category of Auditors and 50% to the category of Panchayat Inspectors was made for promotion to the post of District Audit Officer and Panchayat Instructors respectively.
3. The Rules were again amended in the year 2007 whereby of both the categories i.e. Auditors and Panchayat Inspectors having 5 years of service were made eligible for promotion to the post of District rt Audit Officers/Panchayat Instructors, but the reservation of 50% earlier provided to each of the category was done away with and consequently the application of the roster was also done away with. Rule 11 of the amended Rules, reads as follows:
"11.In case of recruitment By promotion from amongst the by promotion, deputation/ Auditors/Panchayat Inspectors who transfer, grades from possess five years' regular service or which promotion, regular combined with continuous adhoc deputation/transfer to be service rendered, if any, in the grade prior made: to regular appointment to the post.
Provided that for the purpose of promotion a combined seniority list of eligible Auditors and Panchayat Inspectors on the basis of length of service without disturbing their cadre-wise inter se-seniority shall be prepared."
4. The amendment carried out in the Rules was assailed before the learned writ Court on number of grounds taken therein. However, the learned writ Court dismissed the petition by holding that there was rationality and reasoning in the approach of the respondent-State whereby both the categories have been made eligible to common higher posts on the basis of the joint seniority.
5. Mr. R.K.Gautam, Senior Advocate, assisted by Ms. Archana Dutt, Advocate, learned counsel for the appellants has primarily raised three contentions:
::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 3(i) that the Recruitment and Promotion Rules are contrary to the executive instructions issued by the .
Government ;
(ii) that the amendment is liable to be struck down as it affects the chances of promotion of the appellants and:
(iii) that the amendment deserves to be struck down as it is not only illegal, arbitrary but is against the basic of principles of service law.
Whereas, the learned Advocate General has supported the judgment rt rendered by the learned writ Court.
We have heard learned counsel for the parties and have gone through the record of the case carefully.
6. Insofar as the first contention regarding the rules not being in tune with the executive instructions is concerned, suffice it to say that such argument proceeds on erroneous assumptions because it is the executive instructions that have to be in tune with the statutory rules and not vice-versa. This aspect of the matter has already been considered in detail by this Bench in case titled Priyanka Gautam and others vs. State of H.P. and others, CWP No. 354 of 2014 decided on 31st May, 2014, wherein it was held:
"13. It is settled proposition of law that executive instructions cannot overrule or override the statutory Rules. Therefore, in case there is a conflict between the executive instructions and the rules made under Article 309, the rules made under Article 309 will prevail and in case there is conflict between the rules framed under Article 309 and the law made by the legislature will prevail. It is further trite that administrative instructions or orders can only be issued in matters of which the Rules made under Article 309 are silent, therefore, administrative instructions can only supplant the Rules but cannot supplement the same. Even a policy decision taken by the Government cannot have the force of rule made under Article 309 of the Constitution of India. Needless to state that Article 162 whereby the Government is competent to issue administrative instructions/orders and Article 309 operate in different area. In exercising the powers under Article 162, the Government ::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 4 cannot ignore the Rules framed under Article 309. Thus, any appointment or regularisation of an appointment made in contravention .
of the rules made under Article 309 shall be void. It is equally settled law that the rules framed under Article 309 cannot be amended or modified by an administrative order or instruction even by way of adding to the provisions of the statutory rule, unless there is a gap in the rule which required to be fill up. Therefore, what essentially follows is that the Government cannot amend or supersede the statutory Rules by of administrative instructions and it is only when the Rules are silent on any particular point can the Government fill up the gaps and supplant the Rules or the law by issuing instructions that too not inconsistent with the Rules. Thus, an administrative instruction cannot abridge or run rt counter to statutory provision or Rule."
7. Coming to the second contention of the appellants regarding the amended rules affecting their chances of promotion, it may be observed that it is more than settled that such contention could have been accepted only if chances of promotions are treated as conditions of service, but then it is also settled that the mere chances of promotions are not conditions of service and the fact that there is reduction in the chances of promotion does not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. Reference in this regard can conveniently be made to a recent judgment of the Hon'ble Supreme Court in Dhole Govind Sahebrao vs. Union of India (2015) 6 SCC 727 wherein it was held as under:
"31. We shall now venture to deal with another aspect of the matter, emerging out of the impugned order passed by the High Court. The conclusions drawn by the High Court, as have been recorded in paragraph 46 of the impugned judgment and order dated 13.4.2007, emerged out of a consideration which was noticed in paragraphs 38 to
45. Paragraphs 38 and 43 to 46 of the impugned judgment and order, have already been extracted hereinabove. A perusal of the above consideration reveals, that the High Court was swayed by the co- incidental prejudice suffered by the erstwhile members of the ministerial cadre, resulting in lost chances of promotion. The aforesaid ::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 5 consideration could have been justified only if chances of promotion are treated as conditions of service. Insofar as the instant aspect of the .
matter is concerned, this Court has repeatedly examined the issue whether chances of promotion constitute conditions of service. In this behalf, reference may be made to a few judgments rendered by this Court:
32. First of all, we may advert to the decision rendered by this Court in State of Maharashtra & Anr. v. Chandrakant Anant Kulkarni & Ors., of (1981) 4 SCC 130, wherein a three Judge Bench of this Court held as under: (SCC pp. 141-42, para 16) rt "16. Mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. Under the Departmental Examination Rules for STOs, 1954, framed by the former State Government of Madhya Pradesh, as amended on January 20, 1960, mere passing of the departmental examination conferred no right on the STIs of Bombay, to promotion. By passing the examination, they merely became eligible for promotion. They had to be brought on to a select list not merely on the length of service, but on the basis of merit-cum-seniority principle. It was, therefore, nothing but a mere chance of promotion. In consequence of the impugned orders of reversion, all that happened is that some of the STIs, who had wrongly been promoted as STOs Grade III had to be reverted and thereby lost a few places. In contrast, the conditions of service of ASTOs from Madhya Pradesh and Hyderabad, at least so far as one stage of promotion above the one held by them before the reorganisation of States, could not be altered without the previous sanction of the Central Government as laid down in the Proviso to sub-section (7) of Section 115 of the Act."
(emphasis in original).
33. Reference may also be made to the decision of this Court in Palaru Ramkrishnaiah & Ors. v. Union of India & Anr., (1989) 2 SCC 541, wherein a three Judge Bench of this Court held as under: (SCC pp. 552 & 554, paras 12 & 15) "12. In the case of Ramchandra Shankar Deodhar, (1974) 1 SCC 317, the petitioners and other allocated Tahsildars from ex- Hyderabad State had under the notification of the Raj Pramukh dated September 15, 1955 all the vacancies in the posts of Deputy Collector in the ex-Hyderabad State available to them for promotion but under subsequent rules of July 30, 1959, 50 per cent of the vacancies were to be filled by direct recruitment and only the remaining 50 per cent were available for promotion and that too on divisional basis. The effect of this change obviously was that now only 50 per cent vacancies in the post of Deputy Collector being available in place of all the vacancies it was to take almost double the time for many other allocated Tahsildars to get promoted as Deputy Collectors. In other words it resulted in delayed chance of promotion. It was, inter alia, urged on behalf of the petitioners that the situation brought about by the ::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 6 rules of July 30, 1959 constituted variation to their prejudice in the conditions of service applicable to them immediately prior to the reorganisation of the State and the rules were consequently .
invalid. While repelling this submission the Constitution Bench held: (SCC p. 329, para 15) '15.....All that happened as a result of making promotions to the posts of Deputy Collectors divisionwise and limiting such promotions to 50 per cent of the total number of vacancies in the posts of Deputy Collector was to reduce the chances of promotion available to the petitioners. It is now well settled by the decision of this Court in State of of Mysore v. G. B. Purohit, 1967 SLR 753 (SC), that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affect chances of promotion cannot be regarded as varying a condition of service. In Purohit case (supra), rt the districtwise seniority of sanitary inspectors 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 Wanchoo, 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 30-7-1959, nor the procedure for making promotions to the posts of Deputy Collector divisionwise varies the conditions of service of the petitioners to their disadvantage."
Xxx xxx xxx
15. It cannot be disputed that the Director General of Ordnance Factories who had issued the Circular dated November 6, 1962 had the power to issue the subsequent Circular dated January 20, 1966 also. In view of the legal position pointed out above the aforesaid circular could not be treated to be one affecting adversely any condition of service of the Supervisors 'A'. Its only effect was that the chance of promotion which had been accelerated by the Circular November 6, 1962 was deferred and made dependent on selection according to the Rules. Apparently, after the coming into force of the order dated December 28, 1965 and the Circular dated January 20, 1966 promotions could not be made just on completion of two years' satisfactory service under the earlier Circular dated November 6, 1962 the same having been superseded by the later circular. It is further obvious that in this view of the matter Supervisors 'A' who had been promoted before the coming into force of the order dated December 28, 1965 and the Circular dated January 20, 1966 stood in a class separate from those whose promotions were to be made thereafter. The fact that some Supervisors 'A' had been promoted before the coming into force of the order dated December 28, 1965 and the Circular dated January 20, 1966 could not, therefore, constitute the basis for an argument that those Supervisors 'A' whose cases came up for consideration for promotion thereafter and who were promoted in due course in accordance with the rules were discriminated against. They apparently did not fall in the same category."
::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 734. This Court had also declared the position of law, on the above aspect of the matter, in Syed Khalid Rizvi & Ors. v. Union of India & .
Ors., 1993 Supp. (3) SCC 575, wherein a three Judge Bench observed as under: (SCC pp. 601-03, paras 30-31) "30. The next question is whether the seniority is a condition of service or a part of rules of recruitment? In State of M.P. v. Shardul Singh, (1970) 1 SCC 108, this Court held that the term conditions of service means all those conditions which regulate the holding of a post by a person right from the time of his of appointment (emphasis supplied) to his retirement and even beyond, in matters like pensions etc. In I.N. Subba Reddy v. Andhra University, (1977) 1 SCC 554, the same view was reiterated. In Mohd. Shujat Ali v. Union of India, (1975) 3 SCC 76, a Constitution Bench held that the rule which confers a right rt to actual promotion or a right to be considered for promotion is a rule prescribing a condition of the service. In Mohd. Bhakar v. Krishna Reddy, 1970 SLR 768, another Constitution Bench held that any rule which affects the promotion of a person relates to his condition of service. In State of Mysore v. G.B. Purohit, 1967 SLR 753, this Court held that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service. Chances of promotion are not conditions of service. The same view was reiterated in another Constitution Bench judgment in Ramchandra Shankar Deodhar v. State of Maharashtra, (1974) 1 SCC 317. No doubt conditions of service may be classified as salary, confirmation, promotion, seniority, tenure or termination of service etc. as held in State of Punjab v.
Kailash Nath, (1989) 1 SCC 321, by a Bench of two Judges but the context in which the law therein was laid must be noted. The question therein was whether non-prosecution for a grave offence after expiry of four years is a condition of service? While negativing the contention that non-prosecution after expiry of 4 years is not a condition of service, this Court elaborated the subject and the above view was taken. The ratio therein does not have any bearing on the point in issue. Perhaps the question may bear relevance, if an employee was initially recruited into the service according to the rules and promotion was regulated in the same rules to higher echelons of service. In that arena promotion may be considered to be a condition of service. In A.K. Bhatnagar v. Union of India, (1991) 1 SCC 544, this Court held that seniority is an incidence of service and where the service rules prescribe the method of its computation it is squarely governed by such rules. In their absence ordinarily the length of service is taken into account. In that case the direct recruits were made senior to the recruits by regularisation although the appellants were appointed earlier in point of time and uninterruptedly remained in service as temporary appointees along with the appellants but later on when recruited by direct recruitment, they were held senior to the promotees.
31. No employee has a right to promotion but he has only the right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are defeasible. Take an illustration that the Promotion Regulations envisage maintaining integrity and good record by Dy. S.P. of State Police Service as eligibility condition for inclusion in the select-list for recruitment by promotion to Indian Police Service. Inclusion and approval of the name in the select-list by the UPSC, after considering the objections if any by the Central Government is also a condition precedent. Suppose if 'B' is far junior to 'A' in State Services and 'B' was found more meritorious and suitable ::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 8 and was put in a select- list of 1980 and accordingly 'B' was appointed to the Indian Police Service after following the procedure. 'A' was thereby superseded by 'B'. Two years later 'A' .
was found fit and suitable in 1984 and was accordingly appointed according to rules. Can 'A' thereafter say that 'B' being far junior to him in State Service, 'A' should become senior to 'B' in the Indian Police Service. The answer is obviously no because 'B' had stolen a march over 'A' and became senior to 'A'. Here maintaining integrity and good record are conditions of recruitment and seniority is an incidence of service. Take another illustration that the State Service provides - rule of reservation to the scheduled castes and scheduled tribes. 'A' is a of general candidate holding No. 1 rank according to the roster as he was most meritorious in the State service among general candidates. 'B' scheduled castes candidate holds No. 3 point in the roster and 'C', scheduled tribe holds No. 5 in the roster. Suppose Indian Police Service Recruitment Rules also provide rt reservation to the Scheduled Castes and Scheduled Tribes as well. By operation of the equality of opportunity by Articles 14, 16(1), 16(4) and 335, 'B' and 'C' were recruited by promotion from State Services to Central Services and were appointed earlier to 'A' in 1980. 'A' thereafter in the next year was found suitable as a general candidate and was appointed to the Indian Police Service. Can 'A' thereafter contend that since 'B' and 'C' were appointed by virtue of reservation, though were less meritorious and junior to him in the State service and gradation list would not become senior to him in the cadre as IPS officer. Undoubtedly 'B' and 'C', by rule of reservation, had stolen a march over 'A' from the State Service. By operation of rule of reservation 'B' and 'C' became senior and 'A' became junior in the Central Services. Reservation and roster were conditions of recruitment and seniority was only an incidence of service. The eligibility for recruitment to the Indian Police Service, thus, is a condition of recruitment and not a condition of service. Accordingly we hold that seniority, though, normally an incidence of service, Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the Indian Police Service by promotion, which should be strictly complied with before becoming eligible for consideration for promotion and are not relaxable."
(emphasis in original)
35. More recent in time, is the judgment rendered by another three Judge Division Bench in S.S. Bola & Ors. v. B.D. Sardana & Ors., (1997) 8 SCC 522. The majority opinion in the above judgment was rendered by Justice K. Ramaswamy. In the process of consideration, he observed as under: (SCC p. 622, para 145) "145. It is true that the Rules made under the proviso to Article 309 of the Constitution can be issued by amending or altering the Rules with retrospectivity as consistently held by this Court in a catena of decisions, viz., B.S. Vadera v. Union of India, AIR 1969 SC 118; Raj Kumar v. Union of India, (1975) 4 SCC 13; K. Nagaraj v. State of A.P., (1985) 1 SCC 523; T.R. Kapur v. State of Haryana, 1986 Supp. SCC 584, and a host of other decisions. But the question is whether the Rules can be amended taking away the vested right. As regards the right to seniority, this Court elaborately considered the incidence of the right to seniority and amendment of the Act in the latest decision in Ashok Kumar Gupta v. State of U.P., (!977) 5 SCC 201, relieving the need to reiterate all of them once over. Suffice it to state that it is settled ::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 9 law that a distinction between right and interest has always been maintained. Seniority is a facet of interest. The rules prescribe the method of selection/recruitment. Seniority is governed by the .
existing rules and is required to be worked out accordingly. No one has a vested right to promotion or seniority but an officer has an interest to seniority acquired by working out the Rules. It would be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects the promotion of a person relates to conditions of service. The rule merely affecting the chances of promotion cannot be regarded as varying the conditions of service. Chances of promotion are not conditions of service. A of rule which merely affects the chances of promotion does not amount to change in the conditions of service."
36. Consequent upon the above detailed consideration, K. Ramaswamy, J. recorded his conclusion in paragraph 153. On the issue rt in hand, sub- paragraph AB of paragraph 153 is relevant and is being extracted hereunder: (S.S.Bola case, SCC p. 634) "AB. A distinction between right to be considered for promotion and an interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruitment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an Act merely affecting the chances of promotion would not be regarded as varying the conditions of service. The chances of promotion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a constitutional court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the Court is the result of the declaration of law but not the operation of the rules per se."
(emphasis in original)
37. S. Saghir Ahmad, J. concurred with the view expressed by Justice K. Ramaswamy, J. A dissenting view was recorded by G.B. Pattanaik, J. On the subject in hand, however, there was no dissent. The conclusions recorded by G.B. Pattanaik, J. were to the following effect (S.S. Bola case, SCC pp. 665-66 & 675 - 77, paras 199-202 &
212) "199. To the said effect the judgment of this Court in the case of State of Punjab v. Kishan Das, (1971) 1 SCC 319, wherein this Court observed an order forfeiting the [pic]past service which has earned a government servant increments in the post or rank he holds, howsoever adverse it is to him, affecting his seniority within the rank to which he belongs or his future chances of ::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 10 promotion, does not attract Article 311(2) of the Constitution since it is not covered by the expression reduction in rank.
.
200. Thus to have a particular position in the seniority list within a cadre can neither be said to be accrued or vested right of a government servant and losing some places in the seniority list within the cadre does not amount to reduction in rank even though the future chances of promotion get delayed thereby. It was urged by Mr Sachar and Mr Mahabir Singh appearing for the direct recruits that the effect of redetermination of the seniority in accordance with the provisions of the Act is not only that the direct recruits lose a few places of seniority in the rank of of Executive Engineer but their future chances of promotion are greatly jeopardised and that right having been taken away the Act must be held to be invalid. It is difficult to accept this contention since chances of promotion of a government servant are not a condition of service. In the case of State of Maharashtra v. Chandrakant Anant Kulkarni, (1981) 4 SCC 130, rt this Court held: (SCC p. 141, para 16) '6. Mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not.'
201. To the said effect a judgment of this Court in the case of K. Jagadeesan v. Union of India, (1990) 2 SCC 228, wherein this Court held: (SCC pp. 230-31, para 7) '7......The only effect is that his chances of promotion or his right to be considered for promotion to the higher post is adversely affected. This cannot be regarded as retrospective effect being given to the amendment of the rules carried out by the impugned notification and the challenge to the said notification on that ground must fail.'
202. Again in the case of Union of India v. S.L. Dutta, (1991) 1 SCC 505, this Court held: (SCC p. 512, para 17) '17.....In our opinion, what was affected by the change of policy were merely the chances of promotion of the Air Vice-Marshals in the Navigation Stream. As far as the posts of Air Marshals open to the Air Vice-Marshals in the said stream were concerned, their right or eligibility to be considered for promotion still remained and hence, there was no change in their conditions of service.' xxx xxx xxx
212. So far as the rules dealing with Irrigation Branch are concerned, the said rules namely the Punjab Service of Engineers (Irrigation Branch) Class I Service Rules, 1964 have not been considered earlier by this Court at any point of time. One Shri M.L. Gupta was appointed to the post of Assistant Executive Engineer as a direct recruit on 27-8-1971, pursuant to the result of a competitive examination held by the Haryana Public Service Commission in December 1970. The said Shri Gupta was promoted to the post of Executive Engineer on 17-9- 1976. He made a representation to the State Government to fix up his seniority in accordance with the service rules but as the ::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 11 said representation was not disposed of for more than three years he approached the High Court of Punjab and Haryana by filing CWP No. 4335 of 1984. That petition was disposed of by .
the High Court on the undertaking given by the State that the seniority will be fixed up soon. The said undertaking not having been complied with, the said Shri Gupta approached the High Court in January 1986 by filing a contempt petition. In September 1986 the State Government fixed the inter se seniority of the said Shri Gupta and other members of the Service and Gupta was shown at Serial No. 72. Two promotees had been shown at Serial Nos. 74 and 75. Those two promotees filed a writ petition challenging the fixation of inter se seniority between the direct of recruits and promotees and the High Court of Punjab and Haryana by its judgment passed in May 1987 quashed the order dated 29-9-1986 whereunder the seniority of the direct recruits and promotees has been fixed and called upon the State Government to pass a speaking order assigning position in the gradation list. The State Government issued a fresh notification rt on 24-7-1987 giving detailed reasons reaffirming the earlier seniority which had been notified on 29-9-1986. Prior to the aforesaid notification of the State Government Shri Gupta had filed a writ petition in the Punjab and Haryana High Court which had been registered as CWP No. [pic]6012 of 1986 claiming his seniority at No. 22 instead of 72 which had been given to him under the notification dated 29-9-1986. The promotees also filed a writ petition challenging the government order dated 24-7-1987 which was registered as CWP No. 5780 of 1987. Both the writ petitions, one filed by the direct recruit, Shri Gupta, (CWP No. 6012 of 1986) and the other filed by the promotees (CWP No. 5780 of 1987) were disposed of by the learned Single Judge by judgments dated 24-1-1992 and 4-3-1992, respectively, whereunder the learned Single Judge accepted the stand of the promotees and Shri Gupta was placed below one Shri O.P. Gagneja. The said Shri Gupta filed two appeals to the Division Bench against the judgment of the learned Single Judge, which was registered as Letters Patent Appeals Nos. 367 and 411 of 1992. The aforesaid letters patent appeals were allowed by judgment dated 27-8-1992. This judgment of the Division Bench of the Punjab and Haryana High Court was challenged by the State of Haryana in the Supreme Court which has been registered as CAs Nos. 1448-49 of 1993. This Court granted leave and stayed the operation of the judgment in the matter of fixation of seniority. The promotees also challenged the said judgment of the Division Bench in this Court which has been registered as CAs Nos. 1452-1453 of 1993. During the pendency of these appeals in this Court, an Ordinance was promulgated on 13-5-1985 as Ordinance No. 6 of 1995 and the said Ordinance was replaced by the impugned Act 20 of 1995 by the Haryana Legislature. The validity of the Act was challenged by the said Shri Gupta and pursuant to the order of this Court the said writ petition having been transferred to this Court has been registered as TC No. 40 of 1996. So far as the validity of the Act is concerned, the question of any usurpation of judicial power by the legislature does not arise in relation to the Irrigation Branch inasmuch as the Recruitment Rules of 1964 framed by the Governor of Punjab in exercise of power under proviso to Article 309 of the Constitution which has been adapted by the State of Haryana on and from the date Haryana was made a separate State had not been considered by this Court nor has any direction been issued by this Court. The legislative competence of the State Legislature to enact the Act had also not been assailed and in our view rightly since the State Legislature has the powers under Entry 41 of List II of the Seventh Schedule to frame law governing the conditions of service of the employees ::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 12 of the State Government. That apart Article 309 itself stipulates that the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to public services and .
posts in connection with the affairs of the Union or of any State subject to the provisions of the Constitution. Proviso to Article 309 confers power on the President in connection with the affairs of the Union and on the Governor in connection with the affairs of the State to make rules regulating the recruitment and the conditions of service until provision in that behalf is made by or under an Act of the appropriate legislature under Article 309 main part. In this view of the matter, the legislative competence of the State Legislature to enact the legislation in question is of beyond doubt. The only question which, therefore, arises for consideration and which is contended in [pic]assailing the validity of the Act is that under the Act the direct recruits would lose several positions in the gradation list and thereby their accrued and vested rights would get jeopardised and their future chances rt of promotion also would be seriously hampered and such violation tantamounts to violation of rights under Part III of the Constitution. For the reasons already given while dealing with the aforesaid contention in connection with the Public Health Branch and the Buildings and Roads Branch the contention raised in the transfer case cannot be sustained and, therefore, the transfer case would stand dismissed. The Act in question dealing with the service conditions of the engineers belonging to the Irrigation Branch must be held to be a valid piece of legislation passed by the competent legislature and by giving it retrospective effect no constitutional provision has been violated nor has any right of the employee under Part III of the Constitution been infringed requiring interference by this Court."
38. Finally, reference may be made to a decision rendered by this Court in Union of India & Ors. v. Colonel G.S. Grewal, (2014) 7 SCC 303, wherein this Court observed as under: (SCC p. 315, para 28) "28. As pointed out above, the Tribunal has partly allowed the OA of the respondent primarily on the ground that the decision contained in the Government Order dated 23-4-2010 amends the promotion policy retrospectively thereby taking away the rights already accrued to the respondent in terms of the earlier policy. It is also mentioned that the revised policy fundamentally changes the applicant's prospects of promotion. What is ignored is that the promotions already granted to the respondent have not been taken away. Insofar as future chances of promotions are concerned, no vested right accrues as chance of promotion is not a condition of service. Therefore, in the first instance, the Tribunal will have to spell out as to what was the vested right which had already accrued to the respondent and that is taken away by the Policy decision dated 23-4-2010. In this process, other thing which becomes relevant is to consider that once the respondent is permanently seconded in DGQA and he is allowed to remain there, can there be a change in his service conditions vis--vis others who are his counterparts in DGQA, but whose permanent secondment is not in cloud? To put it otherwise, the sole reason for issuing Government Policy dated 23-4-2010 was to take care of those cases where permanent secondment to DGQA was wrongly given. As per the appellants, since the respondent had suffered final supersession, he was not entitled to be seconded permanently to DGQA. This is disputed by the respondent. That aspect will have to be decided first. That apart, even if it be so, as contended by the appellants, the appellants have not recalled the permanent secondment order. They have allowed the respondent to stay in DGQA maintaining his ::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 13 promotion as Colonel as well, which was given pursuant to this secondment. The question, in such circumstances, that would arise is whether the respondent can be treated differently even if .
he is allowed to remain in DGQA viz. whether not allowing him to take further promotions, which benefit is still available to others whose permanent secondment is not in dispute, would amount to discrimination or arbitrariness thereby offending Articles 14 and 16 of the Constitution of India. In our opinion, these, and other related issues, will have to be argued and thrashed out for coming to a proper conclusion."
39. It is apparent from a collective perusal of the conclusions of recorded in the judgments extracted in the foregoing paragraph, that chances of promotion do not constitute a condition of service. In that view of the matter, it is inevitable to hold, that the High Court erred in recording its eventual determination on the basis of the fact that the rt promulgation of the TA Rules, 2003 and the STA Rules, 2003 was discriminatory and arbitrary with regard to the fixation of the inter se seniority, since the same seriously prejudiced the chances of promotion of the erstwhile members of the ministerial cadre, namely, those members of the original ministerial cadre, who had not opted for appointment/absorption into the cadre of Data Entry Operators, with reference to and in comparison with, those members of the original ministerial cadre who had opted for appointment/absorption into the cadre of Data Entry Operators.
40. As a proposition of law it is imperative for us to record, that chances of promotion do not constitute conditions of service, and as such, mere alteration of chances of promotion, would not per se call for judicial interference. The above general proposition would not be applicable, in case the chances of promotion are altered arbitrarily, or on the basis of considerations which are shown to be perverse or mala fide."
8. Finally, coming to the question as to whether the Rules are arbitrary, unconstitutional or contrary to service law as alleged, it would be noticed that prior to the year 1996, there were 69 sanctioned posts of Auditors and they used to be eligible for promotion to the 12 posts of District Audit Officers. On the other hand 69 Panchayat Inspectors were eligible to be promoted to six posts of Panchayati Raj Department Instructors. This means that the persons with much longer service in the Auditors category were being deprived of their promotion in comparison ::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 14 with the persons who had joined much later as Panchayat Inspectors and attained promotion only on account of the reservation in the roster.
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9. It is not in dispute that both the Auditors and Panchayat Inspectors were in the same scale of pay and both were constituted in the feeder category for filling up the higher posts of District Audit Officers and Panchayati Raj Department Instructors. Obviously, when there were less of avenues of promotion provided to the Auditors, there was a lot of heart burning and unrest which ultimately led to the amendment in the Rules.
rt
10. It is otherwise more than settled that the question relating to constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service pertain to the field of policy and within the exclusive discretion and jurisdiction of the State, though obviously subject to certain limitations or restrictions envisaged in the Constitution and, therefore, it is not for the statutory tribunals or the Courts at any rate to direct the Government to have a particular method of recruitment or eligibility criteria for further promotion as held by the Hon'ble Supreme Court in P.U.Joshi and others vs. Accountant General, Ahmedabad and others (2003) 2 SCC 632 as under:
"10. "We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by ::: Downloaded on - 15/04/2017 19:24:18 :::HCHP 15 addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, .
as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by of abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rt rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
11. Even otherwise, we do not find any irrationality or illegality in the action of the respondents whereby two feeder categories in the same pay scale have been integrated by way of joint seniority list on the basis of length of service and thereafter further the promotions are to be made on the basis of the combined seniority list of both the feeder categories.
12. In view of the aforesaid discussion, we find no merit in this appeal and the same is accordingly dismissed alongwith pending application, if any. The parties are left to bear their costs.
( Mansoor Ahmad Mir )
Chief Justice
November 30, 2015 ( Tarlok Singh Chauhan ),
(GR) Judge
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