Himachal Pradesh High Court
As Senior Lecturer vs Union Of India And Others on 17 December, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 17th DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION(ORIGINAL APPLICATION) No.
6733 of 2019.
Between:-
RAM MOHAN KUSHWAHA, SON OF LATE
SHRI DASHRATH SINGH KUSHWAHA,
RESIDENT OF UTRALA ROAD, NEAR
PANCHAYAT GHAR, PAPROLA, DISTRICT
KANGRA, (H.P.) PRESENTLY WORKING
AS SENIOR LECTURER, RAJEEV
AYURVEDIC MEDICAL COLLEGE,
PAPROLA, DISTRICT KANGRA (H.P.).
......APPLICANT.
(BY SH. AMANDEEP SHARMA, ADVOCATE)
VICE SH. VIJENDER KATOCH, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY
(AYURVEDA), TO THE GOVT. OF
HIMACHAL PRADESH, H.P. SECRETARIAT,
SHIMLA-171002 (H.P.).
2. THE PRINCIPAL, RAJEEV GANDHI AYURVEDIC
POST GRADUATE MEDICAL COLLEGE,
PAPROLA, DISTRICT KANGRA (H.P.).
3. DR. ANJANA MISHRA, D/O DR. SURINDER KUMAR
MISHRA, RESIDENT OF V. & P.O. KHARANAL, VIA
::: Downloaded on - 31/01/2022 23:27:15 :::CIS
2
PAPROLA, TEHSIL BAIJNATH, DISTRICT
KANGRA (H.P.), PRESENTLY WORKING AS
SENIOR LECTURER, IN THE POST GRADUATE
.
DEPARTMENT OF KAYA CHIKITSA, RAJEEV
GANDHI AYURVEDIC POST GRADUATE
MEDICAL COLLEGE, PAPROLA, DISTRICT
KANGRA (H.P.).
4. DR. SUNIL KUMAR, S/O SHRI BASANT SINGH
THAKUR, RESIDENT OF VILLAGE DABROG,
P.O. SARKAGHAT, TEHSIL SARKAGHAT,
DISTRICT MANDI, (H.P.), PRESENTLY
WORKING AS LECTURER IN THE POST
GRADUATE DEPARTMENT OF KAYA
CHIKITSA, RAJEEV GANDHI AYURVEDIC
POST GRADUATE MEDICAL COLLEGE,
PAPROLA, DISTRICT KANGRA (H.P.).
5. DR. VIJAY CHAUDHARI, S/O SHRI KRIPAL SINGH,
RESIDENT OF VILLAGE ASHIRVAD, UTRALA ROAD,
PAPROLA DISTRICT KANGRA (H.P.) PRESENTLY
WORKING AS LECTURER IN THE POST
GRADUATE DEPARTMENT OF KAYA CHIKITSA,
RAJEEV GANDHI AYURVEDIC POST GRADUATE
MEDICAL COLLEGE, PAPROLA, DISTRICT
KANGRA (H.P.).
6. UNION OF INDIA, MINISTRY OF AYUSH,
THROUGH ITS SECRETARY.
......RESPONDENTS.
( SH. ASHOK SHARMA, ADVOCATE
GENERAL WITH SH. RAJINDER DOGRA,
SENIOR ADDITIONAL ADVOCATE GENERAL
AND SH. BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL, FOR THE
RESPONDENTS-STATE)
(SH. ADARSH K. VASHISHTA, ADVOCATE
FOR RESPONDENTS- 3 TO 5)
(SH. RAJINDER THAKUR, CENTRAL
GOVERNMENT COUNSEL, FOR
RESPONDENT-6)
::: Downloaded on - 31/01/2022 23:27:15 :::CIS
3
CIVIL WRIT PETITION(ORIGINAL APPLICATION) No.
6875 of 2019.
.
Between:-
DR. UPENDER NATH SHARMA,
SON OF LATE SHRI TULSI RAM,
RESIDENT OF VILLAGE AND POST
OFFICE RAKKAR, TEHSIL BAIJNATH,
DISTRICT KANGRA, HIMACHAL PRADESH,
PRESENTLY WORKING AS READER IN
THE DEPARTMENT OF SHARIR RACHNA,
RAJEEV AYURVEDIC MEDICAL COLLEGE,
PEPROLA, DISTRICT KANGRA, HIMACHAL
PRADESH.
r ......APPLICANT.
(BY SH. AMANDEEP SHARMA, ADVOCATE)
VICE SH. VIJENDER KATOCH, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY
(AYURVEDA), TO THE GOVT. OF
HIMACHAL PRADESH, H.P. SECRETARIAT,
SHIMLA-171002 .
2. THE PRINCIPAL, RAJEEV GANDHI AYURVEDIC
POST GRADUATE MEDICAL COLLEGE,
PAPROLA, DISTRICT KANGRA, HIMACHAL
PRADESH.
3. DR. ANJANA MISHRA, D/O DR. SURINDER KUMAR
MISHRA, RESIDENT OF VPO KHARANAL-VIA-
PAPROLA, TEHSIL BAIJNATH, DISTRICT
KANGRA, HIMACHAL PRADESH PRESENTLY
WORKING AS SENIOR LECTURER, IN
THE POST GRADUATE
DEPARTMENT OF KAYA CHIKITSA, RAJEEV
GANDHI AYURVEDIC POST GRADUATE
MEDICAL COLLEGE, PAPROLA, DISTRICT
KANGRA, HIMACHAL PRADESH.
::: Downloaded on - 31/01/2022 23:27:15 :::CIS
4
4. DR. SUNIL KUMAR, S/O SHRI BASANT SINGH
THAKUR, RESIDENT OF VILLAGE DABROG,
POST OFFICE SARKAGHAT, TEHSIL SARKAGHAT,
.
DISTRICT MANDI, HIMACHAL PRADESH, PRESENTLY
WORKING AS LECTURER IN THE POST
GRADUATE DEPARTMENT OF KAYA
CHIKITSA, RAJEEV GANDHI AYURVEDIC
POST GRADUATE MEDICAL COLLEGE,
PAPROLA, DISTRICT KANGRA, HIMACHAL
PRADESH.
5. DR. VIJAY CHAUDHARI, S/O SHRI KRIPAL SINGH,
RESIDENT OF VILLAGE ASHIRVAD, UTRALA ROAD,
PAPROLA DISTRICT KANGRA, HIMACHAL
PRADESH, PRESENTLY WORKING AS LECTURER
IN THE POST GRADUATE DEPARTMENT
OF KAYA CHIKITSA, RAJEEV GANDHI
AYURVEDIC POST GRADUATE
MEDICAL COLLEGE, PAPROLA, DISTRICT
KANGRA, H.P.
......RESPONDENTS.
(SH. ASHOK SHARMA, ADVOCATE
GENERAL WITH SH. RAJINDER DOGRA,
SENIOR ADDITIONAL ADVOCATE GENERAL
AND SH. BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL, FOR THE
RESPONDENTS-STATE)
(SH. ADARSH K. VASHISHTA, ADVOCATE
FOR RESPONDENTS- 3 TO 5)
Reserved on : 13.12.2021.
These petitions coming on for orders after notice
this day, Hon'ble Mr. Justice Tarlok Singh Chauhan,
passed the following:
::: Downloaded on - 31/01/2022 23:27:15 :::CIS
5
ORDER
Since common questions of law and facts arise .
for consideration in these petitions, the same were taken up together for hearing and are being disposed of by a common judgment.
2. The petitioners are aggrieved by the order dated 14.11.2014 whereby the official-respondents have transferred the post of Professor from 'Shareer Rachna' Department where the petitioners were working to the Department of 'Kayachikitsa'in Ayurvedic Medical College, Paprola, District Kangra, which according to them, has extinguished chances of their promotion.
3. According to the petitioners, initially they were appointed as Ayurvedic Medical Officers. Lateron, the petitioner in CWPOA No.6875 of 2019 was appointed as Lecturer in the Ayurvedic Medical College at Paprola, District Kangra, in the year 2002 and petitioner in CWPOA No. 6733 of 2019 was appointed as Lecturer in the Ayurvedic Medical College at Paprola, District Kangra, in the year 2012 and thereafter promoted as Senior Lecturers on 27.09.2006 and 10.04.2015, respectively.
::: Downloaded on - 31/01/2022 23:27:15 :::CIS 64. According to the petitioners, they can be promoted as Readers after working for a minimum period of .
five years in the capacity of Senior Lecturers. But, the respondents issued a Notification dated 14.11.2014 whereby they have withdrawn the post of Professor, as aforesaid, thereby diminishing the chances of promotion of the petitioners.
5. It is conceded at the Bar and otherwise proved on record that both the petitioners were not eligible for the post of Reader, let alone, the post of Professor, for which the Reader is a feeder post.
6. In such circumstances, we really wonder how the learned Tribunal could have entertained these petitions, much less pass an order of status quo on 27.02.2016.
7. For, it is more than settled that though right to be considered for promotion is a condition of service, however, mere chances of promotion are not. The rule which merely affects the chances of promotion cannot be regarded as one varying a condition of service.
8. The law, in this regard, is too well settled to be reiterated. However, we may, at this stage, refer to one of the latest judgments of the Hon'ble Supreme Court in Air ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 7 Commodore Naveen Jain vs. Union of India and others (2019) 10 SCC 34 wherein Clause-17 of the Promotion .
Policy dated 20.02.2008 for promotion to the post of Air Marshal was challenged inter alia on the ground that the same was contrary to the established principles of law pertaining to promotion on the basis of "merit-cum-
seniority". In view of the principles governing the right of promotion, the Hon'ble r Supreme Court held that the grievance of the appellant is in respect of lost chances of promotion inasmuch as he had attained the age of superannuation before the vacancy arose. Dismissing the appeal, the Hon'ble Supreme Court made these pertinent observations in paragraphs 13, 14 and 15 which read as under:-
"13) In State of Mysore & Anr. v. G.B. Purohit & Ors.
1967 SLR 753 (SC), this Court held that a right to be considered for promotion, is a condition of service but mere chances of promotion are not. The rule which merely affects the chances of promotion cannot be regarded as varying a condition of service. The said judgment was quoted with approval in later judgment reported as Ramchandra Shankar Deodhar & Ors. v. State of Maharashtra & Ors. (1974) 1 SCC 317, wherein this Court held as under: (SCC p.329, para 15) ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 8 "15.....All that happened as a result of making promotions to the posts of Deputy Collectors division wise 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 Mysore vs. 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 affects chances of promotion cannot be regarded as varying a condition of service. In Purohit's case the district wise seniority of sanitary inspectors was changed to State wise seniority, and as a result of this change the r 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:
(SLR para 10) "10. 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....."
14) In Dwarka Prasad & Ors. v. Union of India & Ors. (2003) 6 SCC 535, the argument examined was that the promotion opportunities have to be provided in ratio with the strength of the feeder cadre. It was held as under:
"16. Fixation of quotas or different avenues and ladders for promotion in favour of various categories of posts in feeder cadres based ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 9 upon the structure and pattern of the Department is a prerogative of the employer, mainly pertaining to the policy-making field.
.
The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the holders of posts in the feeder cadres. Most important of them all is the requirement of the promoting authority for manning the post on promotion with suitable candidates. Thus, fixation of quota for various categories of posts in the feeder cadres requires consideration of various relevant factors, a few amongst them have r been mentioned for illustration. Mere cadre strength of a particular post in the feeder cadre cannot be a sole criterion or basis to claim parity in the chances of promotion by various holders of posts in feeder categories."
15) In A. Satyanarayana & Ors. v. S. Purushotham & Ors.(2008) 5 SCC 416, this Court held that the power of the State to fix quota for promotion cannot be said to be violative of the Constitutional Scheme of equality as contemplated under Articles 14 and 16 of the Constitution of India. The Court held as under:
(SCC. 426, paras 23 & 25-26) "23. We, however, are of the opinion that the validity or otherwise of a quota rule cannot be determined on surmises and conjectures.
Whereas the power of the State to fix the quota keeping in view the fact situation obtaining in a given case must be conceded, the same, however, cannot be violative of the constitutional scheme of equality as contemplated under Articles 14 and 16 of the Constitution of India. There cannot be any doubt whatsoever that a policy decision and, in particular, legislative policy should not ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 10 ordinarily be interfered with and the superior courts, while exercising their power of judicial review, shall not consider as to whether such .
policy decision has been taken mala fide or not. But where a policy decision as reflected in a statutory rule pertains to the field of subordinate legislation, indisputably, the same would be amenable to judicial review, inter alia, on the ground of being violative of Article 14 of the Constitution of India. (See Vasu Dev Singh v. Union of India [(2006) 12 SCC 753 and State of Kerala v. Unni [(2007) 2 SCC 365] .) xxx xxx xxx
25. While saying so, we are not unmindful of the legal principle that nobody has a right to r be promoted; his right being confined to right to be considered therefor.
26. Similarly, the power of the State to take a policy decision as a result whereof an employee's chance of promotion is diminished cannot be a subject-matter of judicial review as no legal right is infringed thereby."
9. Similar issue came up before the Division Bench of this Court wherein one of us (Justice Tarlok Singh Chauhan) was a member in Satish Jamwal and others vs. State of H.P. and others, 2015 (6) ILR 468, wherein it was observed as under:-
"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 ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 11 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 Honble Supreme Court in Dhole Govind Sahebrao and Others Vs. Union of India (2015) 6 SCC 727 wherein it was held as under:
r"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 coincidental prejudice suffered by the erstwhile members of the ministerial cadre, resulting in lost chances of promotion. The aforesaid 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 and another Vs. Chandrakant Anant Kulkarni and others, (1981) 4 SCC 130, wherein a three Judge Bench of this Court held as under: (SCC pp. 141-42, para 16) "16. Mere chances of promotion are not conditions of service and the fact that there ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 12 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 rwrongly 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 Paluru Ramkrishnaiah and Others Vs. Union of India (UOI) and Another,(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 and Others Vs. The State of Maharashtra and Others, , 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 ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 13 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 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 r 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 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), 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 ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 14 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 - 31/01/2022 23:27:15 :::CIS 1534. This Court had also declared the position of .
law, on the above aspect of the matter, in Syed Khalid Rizvi and Others Vs. Union of India and Others, 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 Madhya Pradesh and Others Vs. 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 r right from the time of his appointment (emphasis supplied) to his retirement and even beyond, in matters like pensions etc. In I.N. Subba Reddy Vs. Andhra University, (1977) 1 SCC 554, the same view was reiterated. In Mohammad Shujat Ali and Others Vs. Union of India, (1975) 3 SCC 76, a Constitution Bench held that the rule which confers a right 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 and Others Vs. The State of Maharashtra and Others, (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 Vs. 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 ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 16 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 Vs. 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 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 ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 17 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 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 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) ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 18
35. More recent in time, is the judgment .
rendered by another three Judge Division Bench in S.S. Bola and others Vs. B.D. Sardana and others, (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. r Vadera Vs. Union of India, AIR 1969 SC 118; Raj Kumar Vs. Union of India, (1975) 4 SCC 13; K. Nagaraj Vs. State of Andhra Pradesh, (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., (1977) 5 SCC 201 , relieving the need to reiterate all of them once over. Suffice it to state that it is settled 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 ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 19 service. A 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 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 r 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) ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 20
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 Vs. Shri Kishan Das, (1971) 1 SCC 319, wherein this Court observed an order forfeiting the [pic]past service which has earned a r 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 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 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 Vs. Chandrakant Anant Kulkarni, (1981) 4 SCC 130, this Court held: (SCC p. 141, para 16) ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 21 '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 Vs. 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 r 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 and others Vs. 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 ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 22 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 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 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 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 ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 23 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 ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 24 Entry 41 of List II of the Seventh Schedule to frame law governing the conditions of service of the employees 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 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 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."
::: Downloaded on - 31/01/2022 23:27:15 :::CIS 2538. Finally, reference may be made to a decision rendered by this Court in Union of .
India and Others Vs. Col. 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 applicants prospects of promotion. What is ignored is r 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 ::: Downloaded on - 31/01/2022 23:27:15 :::CIS 26 DGQA maintaining his 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 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 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.
::: Downloaded on - 31/01/2022 23:27:15 :::CIS 2740. 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."
10. As observed above, the petitioners as on the date of filing of the petitions were not even eligible for being considered to the post of Reader, let alone, the post of Professor. In such circumstances, when the petitioners lacked even the eligibility, obviously, they had no locus-
standi to file and maintain the instant petitions, much less, seek the reliefs as claimed in these petitions.
11. These petitions are clearly mischievous as the petitioners have successfully managed to reserve a berth by obtaining interim orders, that too, despite being not eligible even for the post of Reader what to talk to the post of Professor.
::: Downloaded on - 31/01/2022 23:27:15 :::CIS 2812. In view of the aforesaid discussion, we do not find any merit in these petitions, but find the same to be .
mischievous and accordingly both these petitions are dismissed with costs of Rs.25,000/- each to be deposited by the petitioners in the H.P. High Court Advocates' Welfare Fund within a period of three months from today.
13. All pending applications, if any, also stand disposed of. r
14. For compliance, to come up on 22.02.2022.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 17th December, 2021.
(krt) ::: Downloaded on - 31/01/2022 23:27:15 :::CIS