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Jammu & Kashmir High Court - Srinagar Bench

Ghulam Mohammad Dar vs Union Of India And Others on 10 April, 2018

Author: Tashi Rabstan

Bench: Tashi Rabstan

           HIGH COURT OF JAMMU AND KASHMIR
                     AT SRINAGAR
                           ...

SWP no.378/2016 MP no.01/2016 Date of order: 10 .04.2018 Ghulam Mohammad Dar v.

Union of India and others Coram:

Hon'ble Mr Justice Tashi Rabstan, Judge Appearing Counsel:

For Petitioner(s):    Mr M. A. Qayoom, Advocate
For Respondent(s):    Mr T. M. Shamsi, ASGI
Whether approved for reporting?             Yes/No

1. Petitioner claims to have been appointed as Peon on 5th January 1983 in respondent department. He is presently posted in the office of respondent no.4. He was brought on Select Panel of Gp(D) Personnel for promotion to Lower Division Clerk (LDC) under 10% Quota in the pay scale of `5200-20200 (PB-I) + GP `1900 for the year 2009-2010, issued by AAD (Adm) SO-III (Pers) for Chief Engineer, vide no.20/S dated 20th April 2012 (Annexure-A to writ petition). Petitioner, by order no.41623/ LDC/125/E1C(1) dated 17th July 2012 (Annexure-B to writ petition), was promoted to the post of LDC and posted in the office of HQ CE (AF) Udhampur.

Petitioner, however, beseeched for adjustment of Promotion-cum- posting in situ. His request, vide Order no.41623/Peon/141/E1C(1) dated 8th November 2012 (Annexure-F to writ petition) was rejected. Petitioner, in sequel thereof, preferred giving up his promotion to LDC post due to self-domestic affairs. In this regard, he proffered an undertaking, asseverating therein that he be considered for promotion after one year from the date of refusal of promotion or when a vacancy arises in the area. By order no.41623/Peon/172/ SWP no.378/2016 Page 1 of 11 MP no.01/2016 EIC (1) dated 20th June 2013 (Annexure R-2 to Reply), petitioner's request to forego promotion to LDC post was agreed to, subject to conditions of Government of India, Department of Personnel and Training's OM no.16/7/90-Estt (Pay-I) dated 9th September 1992 and 20th March 1995, and petitioner's posting to Udhampur cancelled. Petitioner was also informed that once he refused promotion, he lost seniority and he would be debarred from promotion for one year from 28th March 2013. After expiry of one year, petitioner represented for promotion, however, consideration, according to him, has not been vouchsafed.

2. Petitioner is aggrieved that respondents have not till date considered his grievance qua promotion to the post of LDC retrospectively viz. 29.03.2014, notwithstanding he having passed LDC examination, forcing him to file writ petition on hand direction to respondents to promote him to the post of LDC retrospectively viz. 29th March 2014, and besides giving him the monetary benefits, also fix his seniority in the cadre of LDC and also consider him for further promotion on the basis of said seniority as and when the said promotion is contemplated or made.

3. Reply has been filed by respondents. It is maintained that petitioner, being Central Government Civilian Employee, is having an alternative efficacious remedy available to approach Central Administrative Tribunal. Writ petition is stated to be not maintainable in view of law laid down in Abdul Gani Turray v. UOI and others as also in Mst Shaheena v. UOI & others. Respondents insist that petitioner was selected for promotion to LDC post against 10% quota. He was so promoted and posted to HQ CE (AF) Zone Udhampur to take up promotion but he forewent his promotion without any pressure and fear vide his application dated SWP no.378/2016 Page 2 of 11 MP no.01/2016 7th December 2012 for one year up to 6th December 2013. As an upshot thereto, action as per policy was taken and promotion of petitioner was deferred for one-year upto March 2014 and petitioner accepted the condition of respondent department. Respondents also maintain that promotion is subject to availability of vacancy in the department and postings are ordered by competent authority. Since vacancy at the time of promotion of petitioner was available at HQ CE (AF) Zone Udhampur, but he refused to join at his place of posting. All representations made by him, it is next contended by respondents, were disposed of by competent authority, i.e. respondent no.2, vide letter no.41623/Peon/172/E1C(1) dated 20th June 2013 (Annexure R-2 to Reply). Due to change of Recruitment Rules, as claimed by respondents, vide Government of India Notification/SRO 27 dated 8th May 2013 (Annexure R-3 to Reply), qualification for LDC post has been changed from 10th Class to 12th Class, which further clarifies that 10% vacancies shall be filled amongst Group 'C' non- industrial staff in the grade pay of `1800.00 and who possesses 12th pass from recognized Board of University and have rendered three years' regular service in the grade on the basis of departmental qualifying examination. Maximum age limit for eligibility for examination is 45 and 50 years of age in case of scheduled caste and scheduled tribe. Petitioner is stated to be 10th Class pass and his date of birth is 24th March 1959, i.e. more than 56 years, and petitioner belongs to General Category. Thus, according to respondents, petitioner is not eligible for promotion to the grade of LDC as per revised Recruitment Rules.

4. I have heard learned counsel for parties and considered the matter.

5. Promotion means appointment of a person of any category or grade of a service or a class of service to a higher category or grade of such service or class. Promotion or career advancement is a process through which an employee is vouchsafed a higher share of duties, a higher pay-scale or both. A promotion is not just beneficial for employees but is also highly crucial for employer. It boosts morale of promoted employees, increases their productivity and hence improves upon overall outputs and profits earned by an organization. A promotion is a step further that an employee takes while working in an organization as far as his/her work, rank or position is concerned. Every organisation or workplace has a certain job hierarchy structure according to which an employee advances in that organisation and gets promoted. Promotion is not just a reward that an employee is given for his/her continued good performance but is a proof that an employer thinks that it is time to add more responsibilities to an employee's existing set of responsibilities. There are many types of promotions; while some guarantee advancement in job position or rank, other may guarantee an increase in pay or salary. In some organisations, a promotion may result in a just change of duties and responsibilities. Promoting employees for their excellence in performance is important, to value their efforts and keep their morale up. An appraisal or performance appraisal, on the other hand, is a method through which an employee's performance is judged, evaluated or measured. These appraisals are a regular part of the career development of workers and employees and are an integral part of any working organisation. Appraisals can be both negative and positive. While in positive appraisals, overall evaluation comes out to be positive and may result in a salary increase, a negative SWP no.378/2016 Page 4 of 11 MP no.01/2016 appraisal on the other hand is a proof that an employee has not been performing up to expectations and actions are taken to motivate him/her to do so from then onwards. A performance appraisal is a periodic and systematic process that tries to assess performance at work as well as level of productiveness of employees. This may consider various achievements, accomplishments, weaknesses as well as strengths of employee so that overall results can be evaluated. A promotion is not only a way to add more responsibilities to an employee but is a major form of boosting employee motivation and morale. This results in high productivity and precludes an organisation from losing its valuable and important employees. For an organization, deciding whether or not an employee is ready and apt for promotion, can be a challenge. Not all employees may be ready and apropos for an appraisal or a promotion due to lack of the length of service, lack of higher qualifications, right number of achievements as well as lack of needed skills and experience at given position. A promotion is an important decision since it does not only involve change in rank but also more duties and responsibilities and hence must be taken after careful assessment and evaluation of one's skills, performance and several other factors. The educational and technical qualification is also a measure or decision-making tool as far as the promotion is concerned.

6. Qua present case, Article 309 of the Constitution of India envisages that subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or the State, provided that it shall be competent for the President or such person as he may SWP no.378/2016 Page 5 of 11 MP no.01/2016 direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.

7. Petitioner was promoted as LDC by order dated 17th July 2012, however, he opted to forego promotion. Bearing in mind policy in vogue, petitioner's promotion was deferred for one year, upto 27 th March 2014. In the interregnum, in exercise of the powers conferred by the proviso to Article 309 of the Constitution and in supersession of the Military Engineer Services (Upper Division Clerk and Lower Division Clerk) Recruitment Rules, 1999, the new Recruitment Rules, viz. Ministry of Defence, Military Engineer Services (Upper Division Clerk and Lower Division Clerk) Recruitment Rules, 2013, came into being vide SRO 27 dated 8th May 2013. The changed Recruitment Rules of 2013 prescribe that 10% of vacancies of LDC, by promotion, shall be filled amongst Group 'C' non-industrial staff in the grade pay of `1800.00 and who possess 12th pass from recognised Board or University and have rendered three years' regular service in the grade on the basis of departmental qualifying examination. The maximum age limit for eligibility for examination is 45 years (50 years of age for the scheduled caste and scheduled tribe). Petitioner possesses only 10th Class educational qualification and his age is more than 56 years.

8. Learned counsel for petitioner contends that there was a cherished right qua service condition applicable to petitioner the moment he entered service of respondent department and condition of service could not be altered to his disadvantage afterwards by Notification/ SRO issued by respondent department. The said contention of learned counsel is specious. It is true that origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office, government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by Statute or Statutory Rules, which may be framed and altered unilaterally by the Government. Same is the position vis-à-vis case at bar. In other words, legal position of a government servant is more one of status than of contract. The hallmark of status is attachment to a legal relationship of rights and duties imposed by public law and not by mere agreement of parties. The emolument of government servant and his terms of service or for that matter present petitioner is governed by Statute or Statutory rules which may be unilaterally altered by the Government/respondent department without consent of employee/petitioner. It is true that Article 311 imposes constitutional restrictions upon power of removal granted to the President and the Governor under Article 310. But it is obvious that relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. Legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between parties. The duties of status are fixed by law and in enforcement of these duties society has an interest. In the language of jurisprudence, status is a condition of SWP no.378/2016 Page 7 of 11 MP no.01/2016 membership of a group of which powers and duties are exclusively determined by law and not by agreement between parties concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows:

"So we may find both contractual and status obligations produced by the same transaction. the one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligations defined by the law, itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. The extent to which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by mining for itself the contents of the relationship, is a matter depending on considerations of public policy. In such contracts as those of service the tendency in modem times is to withdraw the matter more and more from the domain of contract into that of status." (Salmond and Williams on Contracts, 2nd edition p. 12)."

9. The emoluments of a government servant and his terms of service could be, as observed by the Supreme Court in Roshan Lal Tandon v. Union of India and others AIR 1967 SC 1889, altered by employer unilaterally for the reason that conditions of service are governed by statutory rules which can be unilaterally altered by Government without consent of employee. The same view has been reiterated by the Supreme Court in B.S.Vadera v. Union of India and others AIR 1969 SC 118; The State of Jammu & Kashmir v. Triloki Nath Khosa and others AIR 1974 SC 1; and B.S.Yadav & others v. State of Haryana & others AIR 1981 SC 561.

10.The decision of the Supreme Court in Roshan Lal Tandon's case (supra) was followed with approval in State of J&K v. Shiv Ram Sharma and others AIR 1999 SC 2012. It was noted by the SWP no.378/2016 Page 8 of 11 MP no.01/2016 Supreme Court that by virtue of amendment to Recruitment Rules, pertaining to a promissory estoppel, the grievance of the respondent was that his right to be promoted was adversely affected inasmuch as when he joined service he did so under the belief that he could earn promotion to the post in question. It was urged that when he took appointment the applicable recruitment rule did not prescribe as a necessary condition the passing of a matriculation examination which was sought to be introduced by amending the Rule in the year 1990. The claim of Shiv Ram Sharma was accepted by the High Court. In appeal, the Supreme Court overruled the decision of the High Court and held that there was no indefeasible right in Shiv Ram Sharma to claim for promotion to a higher grade to which qualifications could be prescribed and that there was no guarantee that those rules framed by the Government in that behalf would also be favourable to him. Noting the decision in Roshan Lal Tandon's case (supra), it was held that once appointed, an employee has no vested right in regard to the terms of the service, but acquires a status and, therefore, the rights and obligations are no longer determined by consent of parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government.

11.The questions relating to 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 field of Policy and within exclusive discretion and jurisdiction of the State subject, of course, to limitations or restriction envisaged in the Constitution of India and it is not for Tribunals, at any rate, to direct the Government to have a particular method of SWP no.378/2016 Page 9 of 11 MP no.01/2016 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 competency of the State to change rules relating to a service and alter or amend and vary by addition/subtraction qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as 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 underrating further classification, bifurcation or amalgamation as well as reconstitute and restructure pattern and cadres / categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State, or for that matter petitioner in writ petition on hand, 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 rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge authority of the State to amend, alter and bring into force new rules relating to even an existing service. [See: P. U. Joshi & others v. Accountant General, Ahmedabad & others (2003) 2 SCC 632].

12.Aforesaid jurisprudence pertaining to service law is sufficient answer to the claim of petitioner that principle of promissory estoppel prohibited respondent department to act under the amended Recruitment Rule. The court would not interfere with the propriety of particular qualification for a post laid down by the SWP no.378/2016 Page 10 of 11 MP no.01/2016 Government. [See: Rangaswamy v. Government of Andhra Pradesh (1990) 1 SCC 288]. Law is also settled on subject-matter of present case that even as between employees of same class of service, it would be permissible to give weightage to those who acquire a relevant higher qualification, which is reasonable, e.g., giving accelerated promotion to the most meritorious in order to attract brilliant candidates to public service. [See: Biswas v. State Bank of India AIR 1991 SC 2039]. It is settled law that a civil servant does not have any vested or statutory right to be promoted. The only right is to be considered for promotion that too as per the Recruitment Rules.

13.For all the foregoing considerations, writ petition is disposed of by providing that respondents may consider the case of petitioner on his own merit and, of course, in strict accordance with rules governing the field within eight weeks from the date copy of this order is served upon respondents. Disposed of.

( Tashi Rabstan ) Judge Srinagar 10th April, 2018 Ajaz Ahmad SWP no.378/2016 Page 11 of 11 MP no.01/2016