Himachal Pradesh High Court
Reserved On: 23.5.2025 vs State Of Himachal Pradesh & Ors on 26 May, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
2025:HHC:16061-DB IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 11248/2024 Reserved on: 23.5.2025.
Decided on: 26.05.2025
Ram Lal & ors. .....Petitioners
Versus
State of Himachal Pradesh & ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 Yes For the Petitioners: Mr. Naresh Kumar Tomar, Advocate. .
For the Respondents: Mr.Ramakant Sharma, Mr. Navlesh Verma, Ms. Sharmila Patial, Mr. Sushant Kaprate, Addl. A.Gs. and Mr. Raj Negi, Dy.A.G. ____________________________________________________________ Justice Tarlok Singh Chauhan, Judge The instant petition has been filed for grant of the following substantive reliefs:
i) That the notification No. Rev-A(B)1-13/2023 dated 03.10.2023 issued by the Government of Himachal Pradesh, Department of Revenue, Shimla-2 (Annexure P-
1), vide which, the posts of Superintendent Grade-II (Group-B), Senior Assistant (Group-C), Steno-Typist/Jr. 1Whether reporters of the local papers may be allowed to see the judgment? Yes.
2 2025:HHC:16061-DB Scale Stenographer/Sr. Scale Stenographer (Group- C)/Personal Assistant (Group-B), Clerk/JOA(IT (Group-C) have been declared as State cadre, may kindly be declared as unconstitutional, illegal, arbitrary and beyond the legislative competence of the respondents and may be quashed and set aside.
ii) That alternatively, notification No. Rev-MA(B)1-13/2023 dated 03.10.2023 issued by the Government of Himachal Pradesh, Department of Revenue, Shimla-2 (Annexure P-1) may kindly be ordered not to be made effective i.e. may not be implemented retrospectively with regard to already appointed Clerks/JOA (IT) & Senior Assistant etc. i.e. petitioners, in the revenue department working in different offices like offices of Assistant Collector, Collector, District Collector (Sub-Division, Tehsil & Sub-Tehsil) of all the districts of State of Himachal Pradesh and existing cadre controlling authority may kindly be ordered to be maintained on the basis of existing district level and division level with regard to petitioners i.e. already serving JOA (IT) & Senior Assistant etc. as well as existing procedure of transfer within the district/divisional level and promotion and seniority within the district where appointees/petitioners are appointed/posted may kindly be ordered to be maintained, as is existing till date in the revenue department in the State of Himachal Pradesh.
iii) That alternatively, operation of notification No.Rev- A(B)1-13/2023 dated 03.10.2023 įssued by the Government of Himachal Pradesh, Department of Revenue, Shimla-2 (Annexure P-1) may kindly be made inoperative with regard to the petitioners above said.
3 2025:HHC:16061-DB
iv) That preparation of tentative seniority list or Departmental Promotion Committee (DPC) may kindly be ordered not to be held on the basis of above said notification i.e. Notification No. Rev-A(B)1-13/2023 dated 03.10.2023 issued by the Government of Himachal Pradesh, Department of Revenue, Shimla-2 (Annexure P-
1).
v) That the existing mode of preparation of tentative seniority list, mode of DPC i.e. Departmental Promotion Committee, may kindly be ordered to be maintained with regard to the petitioners i.e. already serving on the post of Clerks/JOA (IT) & Senior Assistant etc., in the revenue department working in different offices of all the districts of State of Himachal Pradesh.
vi) That the existing procedure for promotion to Senior Assistant, Superintendent Grade-II as well as Naib Tehsildars amongst the post of Clerks/JOA (IT), Senior Assistant, Steno etc. of the revenue department on the basis of District cadre and Divisional cadre of the State of Himachal Pradesh, may kindly be ordered to be maintained for the purpose of promotion for the posts of Senior Assistant, Superintendent Grade-II as well as Naib Tehsildars.
vii) That alternatively, in the proposed modalities to be framed before the implementation of above said amendment, present petitioners may kindly be excluded to be governed by the above said notification and petitioners may be governed by the existing mode of promotion, transfer, cadre controlling authority as well as conditions of services, as are existing before the aforesaid notification.
4 2025:HHC:16061-DB
viii) That the operation and implementation of notification No. Rev-A(B)1-13/2023 dated 03.10.2023 issued by the Government of Himachal Pradesh, Department of Revenue, Shimla-2 (Annexure P-1) with regard to promotion, preparation of tentative seniority/final seniority list or conducting of D.P.C. (i.e. Departmental Promotion Committee), may not be implemented retrospectively against Grade-III employees of revenue department already recruited/posted, in the interest of justice.
2 It is averred that the petitioners are working as Senior Assistants (Group-C) in the offices of H.P. Government Revenue Department and are presently posted in the offices of District Collectors, Sub-Divisional Collectors and Assistant Collectors etc. in the State of Himachal Pradesh.
(i) As per the criteria as well as Recruitment & Promotion Rules, the posts of (i) Senior Assistant (Group-C); (ii) Steno-typist; (iii) Junior Scale Stenographer; (iv) Senior Scale Stenographer (Group-C) (v) Personal Assistant (Group-B) and
(vi) Clerk/JOA (IT) (Group-C) are of District Cadre and their cadre controlling authority, except Senior Assistants is Deputy Commissioner/ District Collector of the concerned District and cadre controlling authority of Senior Assistants (Group-C) is 5 2025:HHC:16061-DB Divisional Commissioner of concerned Revenue Division i.e. Revenue Divisions Kangra, Mandi & Shimla.
(ii) The promotion of Senior Assistants, as per rules prevailing prior to the issuance of the impugned notification dated 3.10.2023 was to be made for Superintendent Grade-II in the concerned Division and even transfer, posting and promotion of above said posts was only at District level.
Meaning thereby that the Senior Assistants under the cadre controlling authority of Divisional Commissioner of concerned revenue Division were to be promoted to the post of Superintendents Grade-II in the concerned revenue division i.e. Kangra, Mandi & Shimla.
(iii) However, the respondents-State has issued notification dated 3.10.2023, whereby the aforesaid District cadre posts have been declared to be State cadre posts under the cadre controlling authority of Director of Land Records, Himachal Pradesh and now, for the purpose of promotion and seniority, D.P.C. is to be conducted at State level and seniority of the petitioners is now to be prepared at State level in State of Himachal Pradesh by the revenue department.
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(iv) The petitioners were likely to be promoted to the higher post on the basis of existing criteria prior to issuance of impugned notification, which may now prejudice and cause irreparable loss of seniority due to the reason that inspite of District level, their seniority list may be prepared on the basis of State level and some of the petitioners, who are at the verge of retirement, may not be in a position to get the benefit of promotion during their service career. Since their avenues of promotion and seniority have not been protected while issuing the impugned notification, according to the petitioners, the impugned notification is illegal and arbitrary, hence is liable to be quashed and set aside and since impugned notification itself reflects that implementation of the same would be done only after preparation of modalities and since no such modalities have been prepared/framed, therefore, impugned notification can not be implemented against the petitioners for preparation of seniority list, holding of DPC or preparation of even tentative seniority list for promotions or other intents and purposes by the respondents.
(v) It is also averred that moreover, the petitioners are entitled to the protection of their seniority as well as are entitled 7 2025:HHC:16061-DB for getting promotion on the basis of criteria existing at the time of their appointment/recruitment with regard to which petitioners have legitimate expectation that their entire services would be governed by the rules of Recruitment and Promotion existing at the time of their recruitment. Therefore, the impugned notification should not be implemented against the petitioners and at the same time, the rules for implementation of the same may incorporate the protection as well as preparation of already recruited/ posted employees of the respondents on the basis of criteria existing at the time of recruitment.
(vi) The sum and substance of the case set up by the petitioners is that the impugned notification may not be implemented retrospectively with regard to petitioners and all similarly situated persons for the purpose of promotion as well as transfer and posting in revenue department of State of Himachal Pradesh.
3 The petition has been contested by the respondents by filing reply, wherein it has been averred that the petitioners have no legitimate right as well as locus standi to challenge the impugned notification regarding change of service cadre of 8 2025:HHC:16061-DB ministerial staff (Class-II & III) of revenue Department from District/Division cadre to State cadre as it is an administrative decision of government, which has been taken in public interest and with a view to integrate the ministerial staff of Class-II & III category of all administrative units of Revenue Department under a single umbrella to resolve various issues of officials related to their promotions, transfers, etc. as well as to make the working of Revenue Department more efficient and transparent.
(i) It is also averred that the petitioners have no right to claim that they are making representation of all employees of cadre i.e. Senior Assistants of all twelve districts by filing the present writ petition and moreover by filing the present writ petition they are trying to delay the promotion of all those officials, who are presently under the zone of promotion some of which may also be at the verge of retirement.
(ii) It is further averred that consequent upon issuance of impugned notification, the Director Land Records has been declared as Cadre Controlling Authority in respect of the various categories, as mentioned above, and he, in turn, has also prepared a tentative combined seniority list of Senior 9 2025:HHC:16061-DB Assistants of all twelve districts under "State Cadre" according to their date of entry in the cadre of Senior Assistants in their respective previous district cadre as per final seniority lists provided by all Deputy Commissioners of Himachal Pradesh, without disturbing their inter-se-seniority. The tentative combined seniority list of Senior Assistants under "State Cadre"
has been prepared and issued as per provisions contained in Hand Book of Personnel Matters by taking into account the date of their entry in the cadre of Senior Assistants in their respective previous district cadre according to final seniority lists provided by all Deputy Commissioners of Himachal Pradesh, without disturbing their inter-se-seniority. The date of entry in feeder category of Senior Assistant cadre i.e. as Clerks is not relevant to decide the seniority of Senior Assistants while preparation of their seniority list under "State Cadre" in pursuance of impugned notification.
(iii) It is further averred that on declaration of State Cadre vide notification dated 03-10-2023, the seniority of petitioners as well other Senior Assistants is not going to be affected in combined seniority list of Senior Assistants of twelve districts and it will have no impact on their promotional
10 2025:HHC:16061- DB avenues under "State Cadre" in comparison to "Division Cadre".
The probability of their promotional avenues to higher posts viz.
Superintendent. (Gr-II) & Naib-Tehsildar has also increased proportionately on change of their service cadre from "Division Cadre" to "State Cadre" as the number of these higher posts under "State Cadre" has also increased than that of "Division Cadre". The petitioners as well other officials shall be considered for promotion against higher number of vacancies under "State Cadre" and the opportunity as well the time for next promotion to them under "State Cadre" shall also remain same as was in "Division Cadre". Hence, there is no hardship as well as issue of loss of seniority to the petitioners as well other officials under "State Cadre".
(iv) Lastly, it is averred that the petitioners have no legal enforceable cause of action against the respondents and the action of the respondents is otherwise just and proper and is not violative of any provisions of the Constitution of India much less articles 14, 16 and 21 thereof.
4 We have heard the learned counsel for the parties and have also gone through the material placed on record.
11 2025:HHC:16061- DB 5 From the pleadings of the parties and the arguments addressed by the petitioner, it appears that the main thrust of the petitioners is twofold.
6 Firstly, the impugned notification diminishes right of promotion of the petitioners and secondly, the respondent-
State has no authority to issue the impugned notification.
7 Adverting to the first contention, the law, in this regard, is too well settled to be reiterated. However, we may, at this stage, refer to judgment of the Hon'ble Supreme Court in Air 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 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 12 2025:HHC:16061- DB 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) "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 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
13 2025:HHC:16061- DB 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 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 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) 14 2025:HHC:16061- DB "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 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 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."
8 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:-
15 2025:HHC:16061-
DB "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 Honble Supreme Court in Dhole Govind Sahebrao and Others 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 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 16 2025:HHC:16061-
DB 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 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 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 17 2025:HHC:16061- DB 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 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 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 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 18 2025:HHC:16061- DB 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."
34. 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 19 2025:HHC:16061- DB 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 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 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 20 2025:HHC:16061- DB 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 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 21 2025:HHC:16061- DB 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 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. 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 22 2025:HHC:16061- DB 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 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 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 23 2025:HHC:16061- DB 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 Vs. Shri 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 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 24 2025:HHC:16061- DB 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) '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 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 25 2025:HHC:16061- DB 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 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- 26 2025:HHC:16061- DB 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 27 2025:HHC:16061- DB 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 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."
28 2025:HHC:16061- DB
38. 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 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 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 29 2025:HHC:16061- DB 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.
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 30 2025:HHC:16061- DB 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."
9 What appears to be more than settled is 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. There is nothing on record, which may even remotely indicate that chances of promotion in the instant case have been altered arbitrarily, or to prove that the basis of consideration for bringing about the impugned notification has foundation on malafides.
10 This assumes importance when we advert to the second contention of the petitioners, wherein the petitioners claim that the State has no right to issue impugned notification.
11 There is nothing on record to establish that the State is not competent to issue the impugned notification. Once that be so, it is always open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including 31 2025:HHC:16061- DB avenues of promotion, from time to time, as the administrative exigencies may need or necessitate.
12 In coming to such conclusion, we are duly supported and fortified by the judgment passed by the Hon'ble Supreme Court in case titled as P.U. Joshi and others vs. Accountant General and others, (2003) 2 SCC 632, more particularly, para 10 thereof, which reads 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 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 32 2025:HHC:16061- DB 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 abolishing existing 4 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 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."
13 We may also refer to another judgment of the Hon'ble Supreme Court in Union of India vs. Pushpa Rani and others, (2008) 9 SCC 242, wherein, the Hon'ble Supreme Court in para 37 observed as under:-
"37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the 33 2025:HHC:16061- DB employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.
14 In this background, the Court must, therefore, exercise judicial restraint and should not encroach upon the Executive or Legislative domain, orders for creation of posts, appointment to these posts, regularization, fixation of pay-
scale, continuation in service, promotions, curtailing avenues of promotions, prescribing different qualifications etc., all executive or Legislative functions and it is highly improper for Judges to step into this sphere except in rare and exceptional cases. The relevant case law and philosophy of judicial restraint have been eloquently laid down by a learned Division Bench of Madras High Court in detail in Rama Muthuramalingam vs. 34 2025:HHC:16061- DB Deputy Superintendent of Police, Mannargudi and another AIR 2005 Madras 1.
15 In addition to the above, it is long settled that promotion is not a fundamental right, however, the consideration for promotion is a fundamental right.
Nonetheless, the promotion can only be considered in terms of rules governing the service of the employees.
16 No mandamus can be sought against the provisions of rules, unless the same are arbitrary, illegal or unconstitutional. The petitioners are not in a position to contend that by virtue of the rules now framed, any vested right has been taken away.
17 The Hon'ble Supreme Court in a number of decisions has held that the equality is the very bulwark of the provisions of the Constitution and in service jurisprudence, classification is a matter of necessity. The judicial pronouncements have sought to balance the equality principle with the principle of classification dependent upon the nexus for making the classification.
18 In Ravikumar Dhansukhlal Maheta vs. High Court of Gujarat, AIR 2023 SC 2328, it was reiterated that 35 2025:HHC:16061- DB in India, no government servant can claim promotion as their right because the Constitution does not prescribe criteria for filling seats in promotional posts. The Legislature or the executive may decide the method for filling vacancies to promotional posts based on the nature of employment and the functions that the candidate will be expected to discharge. The courts cannot sit in review to decide whether the policy adopted for promotion is suited to select the 'best candidates', unless on the limited ground where it violates the principle of equal opportunity under Article 16 of the Constitution.
19 In view of the aforesaid discussions and for the reasons stated hereinabove, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending application(s), if any.
(Tarlok Singh Chauhan) Judge (Sushil Kukreja) 26.5.2025 Judge (pankaj)