Chattisgarh High Court
S. S. Jaysee vs State Of Chhattisgarh on 13 June, 2024
Author: Rajani Dubey
Bench: Rajani Dubey
Neutral Citation
2023:CGHC:26733-DB
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 6417 of 2019
S. S. Jaysee, S/o Late Shri S. Jaysee, aged about 61 years,
R/o Ward No. 16, Mulkadam, Sakti, District Janjgir -
Champa Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through Secretary, Department Of
Panchayat And Rural Development, Mahanadi Bhavan, Atal
Nagar, Raipur Chhattisgarh.
2. Principal Secretary, Department Of Law And Legislative
Affairs, Mahanadi Bhavan, Atal Nagar, Raipur Chhattisgarh.,
---- Respondents
For Petitioner : Ms. Diksha Gouraha,
Advocate.
For Respondents/State : Mr. Raj Kumar Gupta, Addl.
Advocate General.
D.B. : Hon'ble Shri Justice Goutam Bhaduri & Hon'ble Smt Justice Rajani Dubey Order on Board by Goutam Bhaduri, J 13/06/2024
1. In this petition, the petitioner is seeking declaration that Rules 13, 14 and Scheduled IV of the Chhattisgarh Panchayat and Rural Development (Gazetted) Service Rules, 2013 (for short 'Rules, 2013') are ultra vires.
2. Brief facts of the case are that on 06.03.1982, the petitioner Neutral Citation 2023:CGHC:26733-DB 2 was initially appointed as a Gram Sevak in the Department of Agriculture, Govt. of Madhya Pradesh. On 10.02.1983, the services of the petitioner were transferred to the Rural Development Department as Gram Sevak. In the year 1985, the post of Gram Sevak was changed to Assistant Development Extension Officer in the Department of Rural Development (M.P.) and the name of department too was changed to Department of Panchayat and Rural Development. In the year 1988, in the erstwhile State of Madhya Pradesh, the Panchayat and Rural Development Department promulgated the service rules and as per Schedule IV of it, the Assistant Development Extension Officer was eligible to be promoted to the post of Development Extension Officer on completion of certain period of service. Subsequently, the Madhya Pradesh Panchayat Rural Development (Gazetted) Service Rules, 1988 was amended and further the post of Block Development Officer was created which required qualification of minimum 18 years of service on the post of Assistant Development Extension Officer and Development Extension Officer, in which at least 03 years of regular service on the post of Development Extension Officer was necessary.
3. Subsequently, in the year 2000, the petitioner was absorbed Neutral Citation 2023:CGHC:26733-DB 3 as Assistant Development Extension Officer in the Panchayat and Rural Development Department in the State of Chhattisgarh. According to the petitioner, his promotion to the post of Block Development Officer was due on 01.04.2008 as he had completed 18 years of service, however, the petitioner was not promoted. Subsequently the Rules, 2013, which is under challenge intervened, wherein the post of Block Development Officer was declared as dying cadre resulting to deprivation of petitioner as Block Development Officer.
4. The submission is made by Ms. Diksha Gouraha, learned counsel for the petitioner that had the petitioner been promoted on 01.04.2008 to his due promotional post of Block Development Officer, he would have been benefited but because of the fact that the petitioner was not promoted for inaction on the part of respondent authorities and in the meanwhile, Rules, 2013, which is under challenge came in to force, his right for promotion as Block Development Officer was diminished. It is stated that under these circumstances, the post of Block Development Officer was declared as dying cadre, and Rules, 2013 is ultra vires to the fundamental rights of the petitioner as he was entitled for promotion during his service period. Learned counsel further submits that the subsequent amendment which took Neutral Citation 2023:CGHC:26733-DB 4 place in the year 2013 is also under challenge, wherein the fact remains that the post of Block Development Officer was declared as dying cadre. Learned counsel also submits that since the petitioner has been superannuated, his entitlement to the promotional post, which was due on 01.04.2008 should have been granted.
In support of her submission, learned counsel placed reliance on the decision of Hon'ble Supreme Court in the matter of Council of Scientific and Industrial Research 1 and another V. K.G.S. Bhatt and another , Food Corporation of India and Ors. V. Parashotam Das Bansal and Ors.2, State of Tripura and Ors. V. K.K. Roy3, Panchraj Tiwari V. Madhya Pradesh State Electricity Board and Ors.4 and decision of High Court of Himachal Pradesh, Shimla in the matter of Surender Kumar Parmar V. State of H.P. and Ors. (CWP No.5104/2010, dated 04.01.2011).
5. Per contra, Mr. R.K. Gupta, learned Additional Advocate General for the State/respondents would submit that the promotion cannot be claimed as a matter of right. He would further submit that it is not a case that any exercise was taken to promote the likewise officer and in its entirety, the Government in its administrative act, without any 1 (1989) 4 SCC 635 2 (2008) 5 SCC 100 3 (2004) 9 SCC 65 4 (2014) 5 SCC 101 Neutral Citation 2023:CGHC:26733-DB 5 discrimination, has declared the post of Block Development Officer as dying cadre. Learned counsel also submits that the petitioner was granted time bound pay scale, as such the promotion cannot be affected. Learned counsel further submits that it is the prerogative of the State to continue the post or to abolish the same, which has been done by way of amendment and, therefore, the Rules, 2013 cannot be declared as ultra vires. In support of his submission, learned counsel placed reliance on the decision of Hon'ble Supreme Court in the matter of Union of India and Ors. V. Krishna Kumar and Ors.5 .
6. We have heard learned counsel for the parties at length and perused the material on record.
7. The submission of the learned counsel for the petitioner that since the petitioner has already discharged his job as Development Extension Officer, and had the promotion been done in proper time, he would have been promoted to the post of Block Development Officer which fell due on 01.04.2008, prima-facie appears to be logical but the fact cannot be ignored that it a perogative of the State Government to promote any of its employee or not.
8. It is settled proposition of law that no vested right of promotion can be claimed but the right can be considered for promotion in accordance with rules, which prevail on the 5 (2019) 4 SCC 319 Neutral Citation 2023:CGHC:26733-DB 6 date on which the consideration for promotion takes place. If the promotion has not taken place then in such a situation, the discrimination is ruled out. The State in its prerogative by the amended Rule, 2013, has declared the post of Block Development Officer to be a dying cadre. The Court in its judicial review will not step into shoes which is covered under the executive act unless it is shown to be contrary to the fundamental rights enshrined in the Constitution of India.
9. The Supreme Court has time and again held that there exist a very strong presumption in favour of legislation. The Supreme Court in Mathews J. Nedumpara v. Union of India,6 held in para 19 as under :-
"19. In R.K. Garg V. Union of India 7, it is observed as under:
"7. Now while considering the constitutional validity of a statute said to be violative of Article 14, it is necessary to bear in mind certain well- established principles which have been evolved by the courts as rules of guidance in discharge of its constitutional function of judicial review. The first rule is that there is always a presumption in favour of the constitutionality of a statute and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. This rule is based on the assumption, judicially recognised and accepted, 6 (2024) 1 SCC 1 :2023 SCC OnLine SC 1339 7 (1981) 4 SCC 675 : 1982 SCC (Tax) 30 Neutral Citation 2023:CGHC:26733-DB 7 that the legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience and its discrimination are based on adequate grounds. The presumption of constitutionality is indeed so strong that in order to sustain it, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation".
10. The Supreme Court while dealing with the validity of Regulation 17(1) of the Andhra Bank (Officers') Service Regulations, 1982 which deals with the promotional avenues of the bank employees in the matter of Andhra Bank v. B. Satyanarayana 8, held as under :-
"11. It is a well-settled principle of service jurisprudence that the employer is entitled to lay down policy decision laying down the criteria for grant of promotion to its officers. The eligibility norms for such promotions must be defined by the bank on a realistic basis wherefor a system to choose the best-available talent to man the critical positions is to be devised. Once a power vests in an authority by reason of the provisions of a statute, it is trite that such power can be exercised from time to time. Changes are required to be made keeping in view the 8 (2004) 2 SCC 657 Neutral Citation 2023:CGHC:26733-DB 8 requirement of the management as also the exigency of the situation obtaining at the relevant time. Furthermore, it is one thing to say that by reason of Section 19, the Parliament has conferred essential legislative functions upon the Board of Directors to make regulation but it is another thing to say that the Regulation is arbitrary and ultra vires as it did not contain sufficient guidelines. The High Court did not come to the conclusion that essential legislative competence of the Parliament has been delegated to the Board of Directors in terms of Section 17 of the Act or otherwise."
11. The though the control of power is duty of court but while exercising its duty the court should always respect the legislative wisdom and executive competence and must act within the constitutional limits. The Supreme Court in Jaya Thakur v. Union of India 9, has held as under :-
"68. It could thus be seen that the role of the judiciary is to ensure that the aforesaid two organs of the State i.e. the legislature and the executive function within the constitutional limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The role of this Court is limited to examine as to whether the legislature or the Executive has acted within the powers and functions assigned under the Constitution. However, while doing so, the Court must remain 9 (2023) 10 SCC 276 Neutral Citation 2023:CGHC:26733-DB 9 within its self-imposed limits."
12. Frankfurter, J. of the US Supreme Court dissenting in the 10 controversial expatriation case of Trop v. Dulles , observed as under :-
"'57.... All power is, in Madison's phrase, "of an encroaching nature".... Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint. ...
58. Rigorous observance of the difference between limits of power and wise exercise of power between questions of authority and questions of prudence- requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do."
10 1958 SCC OnLine US SC 62 : 2 L Ed 2d 630 : 356 US 86 (1958) Neutral Citation 2023:CGHC:26733-DB 10
13. If the promotional right is not vested, then in such a case, the petitioner could not have claimed any such right. Furthermore, when the time bound pay scale has already been granted in absence of any promotion, it further satisfies the logical requirement which was granted to the petitioner. Time bound pay scale is granted, as a compensatory measure if the promotional avenues are further blocked for want of any such promotional post. The petitioner having received the time bound pay scale cannot claim as a matter of right i.e. his promotion should have been made on 01.04.2008.
14. In the light of aforesaid proposition of law laid down by Supreme Court, we do not find any substance in the petition and the same deserves to be and is hereby dismissed.
Sd/- Sd/-
(Goutam Bhaduri) (Rajani Dubey)
Judge Judge
pkd