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2000 DIGILAW 58 (JK)

Handloom Non-gazetted Employees v. State Of J. &K.

2000-03-27

O.P.SHARMA

body2000
1. The petitioners have challenged the vires of SRO 164 dated 01-09-1993 by virtue of which the government in exercise of powers conferred by the proviso to section 124 of the Constitution of Jammu and Kashmir have framed Jammu and Kashmir Handloom Development (Subordinate Services Recruitment Rules) on the ground that these rules have adversely affected their chance of promotion. It is further averred that the petitioners were first appointed in the Handicraft department and their services conditions were different but these have been arbitrarily changed under the new rules. The petitioners, therefore, seek quashment of the rules on the ground that these are arbitrary and have adversely affected the promotion avenues of different categories. The stand of the respondents is that petitioners have no locus to challenge the vires of the rules which have been framed in exercise of the legislative powers. It is further stated that the petitioners have not indicated how the recruitment have adversely affected their service conditions. 2. The only question involved is whether the recruitment rules (Sic) made by the Government in exercise of legislative powers have in any manner affected the service conditions of the petitioners and if so on what grounds (Sic) can be quashed. In State of Andhra Pradesh & ors etc, V- Mcdowell and Co. and others etc., AIR 1996 SC 1627, their Lordships while dealing with the scope of judicial review in case of law made by the Legislature held as under:- A law made by the Parliament or the Legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in part-II of the Constitution or of any other constitutional provision. There is no their ground. We do not wish to enter into a discussion of the concepts of procedural un-reasonableness and substantive unreasonableness-concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the Courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. The main criticism against the ground of substantive due process being that it seeks to set up the Courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four comers of the two grounds mentioned above.� Rules impugned being subordinate-legislation falls in the same category. Mere chance of promotion is not a condition of service in ˜Jagdish Lal and- ors Vs. State of Haryana and others™, AIR 1997 SC 2366, (Sic) holding that:- 11. ..... In State of Maharashtra V. Chandrakant Anant Kulkarni, (1981)4 SCC 130: (AIR 1981 SC 1990) another Bench of three Judges in paragraph 16 at page 141 had held that (M) 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.� In K. Jagadeesan V. Union of India, (1990) 2 SCC 228 at 230: (AIR 1990 SC 1072 at p. 1074), in para 6, it was held that a right to be considered for promotion is a term of service. But mere chances of promotion are not�; so also the eligibility for promotion. Passing of the departmental examination is nothing but a mere chance of promotion. In Ashok Kumar Gupta V. State of U.P. (1997) (3) Scale 289 at 299. Para 22, this court comprising all the three of us, had held that in service jurisprudence, a distinction between a right and interest had always been maintained. Seniority is a facet of interest. When the rules prescribe the method of selection/recruitment, seniority is given as per the ranking given and governed by such rules as was laid in the rules�. Similar view taken in A.K. Bhatnagar V. Union of India, (1991) 1 SCC 544, was upheld by this court. In Akhil Bhartiya Soshit Karamchare Sangh V. Union of India, (1996) 6 SCC 65: (1996 AIR SCW 3691), to which two of us, K. Ramaswamy and G.B. Pattanaik were members, this court had held that no member of the service has a vested right to promotion or seniority but an officer has an interest in seniority acquired by working out the rules. In Md. In Md. Shujat Ali V. Union of India, (1975) 1 SCR 449: (AIR 1974 SC 1631) a Constitution Bench had held that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing conditions of service. In Mohd Bhakar V. Krishan Reddy, 1970 Serv L.R 768, a Bench of three Judges had held that any rule which affect the promotion of a person, relates to conditions of service. In State of Mysore v. G.N. Purohit, 1967 Serv LR 753, a Bench of two Judges had held that rule which merely affects chances of promotion cannot be regarding as varying the conditions of service. Chances of promotion are not conditions or service. In Syed Khalid Rizvi V. Union of India, 1993 Supp (3) SCC 575, to which one of us K.R.S., J. was a member, it was held in para 31 that no employee has a right to promotion; the only right is that he is entitled to be considered for promotion according to rules. Chances of promotion are not conditions of service which are defeasible in accordance with the rules. Thus, it is settled principle in the service jurisprudence that mere chances of promotion are not conditions of service and a candidate appointed in accordance with the rules can steal a march over his erstwhile seniors in the feeder/lower cadre.� 3. Since mere chances of promotion are not the conditions of service, therefore, the petitioners cannot question the vires of the Recruitment Rules. In view of the above this petition is without any merit and is dismissed accordingly.