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2012 DIGILAW 608 (GAU)

State of Arunachal Pradesh v. Takam Pate

2012-05-23

A.C.UPADHYAY, I.A.ANSARI

body2012
JUDGMENT A.C. Upadhyay, J. 1. Both the appeals aforenoted filed by the State appellants, against of the judgment and order, delivered in WP (C) No. 431 (AP)/ 2006, and WP(C) No. 94(AP)/2009, raise some questions of law based on similar factual matrix, we, therefore, propose to take up both the appeals together for hearing and disposal. The core question, which arose for consideration before the learned Single Bench, is: whether transfer of administrative control of employees working in the Directorate of Sports and Youth Affairs, Government of Arunachal Pradesh, to the Directorate of School Education, Government of Arunachal Pradesh, without obtaining consent of the concerned employees, is valid and legal. 2. In order to appreciate the controversy, involved in the writ petitions, it would be apposite to lay, in brief, the facts leading to filing of the same: Pursuant to an advertisement, dated 31.10.2003, issued by the Directorate of Sports & Youth Affairs, Govt. of Arunachal Pradesh for recruitment of 20 (twenty) posts of Physical Training Instructor (P.T.I.), the respondents offered their candidature by submitting formal applications. Accordingly, on consideration of their candidature the respondents were duly recommended, by the departmental selection committee, for appointment to the post of PTI (Physical Training Instructors), in the Directorate of Sports & Youth Affairs. The Director of Sports & Youth Affairs, accordingly issued appointment letters to the respondents. On their appointment, the respondents were put, on probation, for a period of two years, with effect from their respective dates of joining the service. In terms of their appointment, the respondents were posted to different government schools across the State as Physical Training Instructors (PTI). 3. It has been contended, on behalf of the respondents, that Sri Gumti Ete was already working as PET at the Navodaya Vidyalaya Samity at Champaran, Bihar, on a higher pay scale of Rs.5500-9000/- per month. However, he opted to join his present assignment, having lesser pay scale of Rs.4500-7000/-, keeping in mind the availability of chances of promotion and future prospect of career advancement under the Directorate of Sports and Youth Affairs. 4. According to learned counsel for the respondents, although the post under the Directorate carried a lower scale of pay, the sole reason, which prompted the respondent, Gumti Ete, to take the assignment of PTI, was the existence of promotional avenues. 5. 4. According to learned counsel for the respondents, although the post under the Directorate carried a lower scale of pay, the sole reason, which prompted the respondent, Gumti Ete, to take the assignment of PTI, was the existence of promotional avenues. 5. The Department of Sports and Youth Affairs issued the impugned order, permanently, transferring the administrative control of the posts of PTE/PET to the Director of School Education along with their salary components. 6. The aforesaid administrative transfer within the Government department was affected by the State Government, in exercise of the powers conferred to it by Proviso to Rule 3 of the Business of the Government of Arunachal Pradesh (Allocation) Rules, 1998. 7. The moot contention of the respondents/writ petitioners, before the learned single Bench, was that the transfer of administrative control of the services of the respondents to the Directorate of School Education Department is illegal, because it has deprived the respondents of future promotional prospects. It was also contended, on behalf of the writ petitioners, that under the Directorate of Sports and Youth Affairs, the respondents had better promotional avenues and chances to rise up to the rank of Director of Sports and Youth Affairs; whereas such chances of promotion are not available under the Director of School Education. 8. The State respondents, in their affidavit-in-opposition stated that the incumbents, holding the posts of PET and PTI, attached with various Secondary and Higher Secondary Schools, under the Government of Aruncahal Pradesh, were, originally, working as the staff of the Director of School Education. Therefore, they have been under the administrative control of the Directorate of School Education since their joining the posts. Thereafter, in terms of the administrative exigency of the establishment, matters, pertaining to PET and PTI, were transferred from the Director of School Education to the Directorate of Sports and Youth Affairs, though salary components of PET/PTI could be transferred only in the month of April, 2002. It has been contended on behalf of the State respondents, that the Directorate of School Education has been looking after all matters relating to PET/PTI, in terms of the notification, dated 1.1.2005, and subsequent notification dated 25.11.2005. 9. Dr. A.K. Saraf, learned Advocate General, Arunachal Pradesh by Mr. R.H. Nabam, learned Sr. Govt. It has been contended on behalf of the State respondents, that the Directorate of School Education has been looking after all matters relating to PET/PTI, in terms of the notification, dated 1.1.2005, and subsequent notification dated 25.11.2005. 9. Dr. A.K. Saraf, learned Advocate General, Arunachal Pradesh by Mr. R.H. Nabam, learned Sr. Govt. Advocate, appearing on behalf of the appellants, has submitted that the nature of duties and responsibilities, assigned to the posts of PET and PTI, require the respondents to impart physical education and training coupled with conduct of regular sporting activities amongst the students, studying in different schools, within the State of Arunachal Pradesh. In order to carry out the mission of imparting physical training and only for the sake of administrative convenience, the employees, working as PET/PTI, were brought under the administrative control of the Directorate of School Education and posted to different educational institutions as well as schools in the State. Learned Advocate General further contended that though the administrative control of the respondents were transferred for administrative necessity, from one directorate to all other of the same Government, but all pecuniary benefits, attached to the posts, remained undisturbed. 10. It has been pointed out that transfer of the respondents, in accordance with the Rules framed, from one department to another department, under the same Government, without change in pay structure and other pecuniary benefits to carry out the task for which the respondents were recruited, cannot be deemed to have taken away any vested rights of the respondents, for, the conditions of service of the respondents were not changed or altered to their disadvantage. 11. There is no dispute that at no point of time, the writ petitioners were consulted, nor did they give their consent, prior to the issuance of the impugned notification, transferring administrative control of their services to the Directorate of School Education. Undoubtedly, with the help of the impugned notification, the administrative control of the services of the writ petitioners stood transferred from one directorate to another under the same Department of the same Government. 12. It has been contended on behalf of the appellant that the transfer of administrative control of the writ petitioners from one directorate to another directorate was carried out by the appellant/State by taking a policy decision, in this regard, after due amendment of the Business of the Government of Arunachal Pradesh (Allocation) Rules, 1998. 13. 12. It has been contended on behalf of the appellant that the transfer of administrative control of the writ petitioners from one directorate to another directorate was carried out by the appellant/State by taking a policy decision, in this regard, after due amendment of the Business of the Government of Arunachal Pradesh (Allocation) Rules, 1998. 13. Upon hearing learned counsel for both the parties, the learned Single Judge has held that consequent to the impugned transfer order the writ petitioners stand deprived of their right to promotional avenues, in future, since there is no promotional prospect, in the post of PTI, under the Directorate of School Education. Further, the learned Single Judge has also held that provisions, contained in the Business Allocation Rules, framed under Article 166(3) of the Constitution whereunder which the State Government took the policy decision, could not have taken away, nullify or over-ride the rights of the writ petitioners to remain under the Directorate of Sports and Youth Affairs of the State Government. 14. Questions raised for consideration in these appeals are - (i) whether the transfer of administrative control of State Government employees from one department to another and/or from one directorate to another requires consent of the employees concerned, (ii) whether such transfer, within the Government Departments, for administrative convenience, would amount to transfer to a foreign service and (iii) whether the impugned order of transfer, issued by the State Government, being a policy decision of the State, warranted interference by a Writ Court. 15. It has been contended on behalf of the appellant, referring to the consensus decision taken in the meeting, convened by the Chief Minister held on 17.8.2005, in connection with "Propagation of Physical Education and Sports Activities' throughout the State of Arunachal Pradesh by PET/PTI, working in various Schools and Coaches", resolved to retain PET/PTIs, under the administrative control of Directorate of School Education, for better utilization of services of the officials in the best interest of the students of different schools in the State. It has been further submitted that though service rule, as such, regulating the services of PTE/PTI has not been notified by the appellant, a draft rule regulating the services of the respondents is already in place. Therefore, in terms of the draft rules, which has been applied in respect of the respondents, the service conditions of the respondents can be regulated by the State Government. Therefore, in terms of the draft rules, which has been applied in respect of the respondents, the service conditions of the respondents can be regulated by the State Government. 16. It has been submitted, referring to the Constitutional provisions regarding employment with the State Government, submitted that employment, in the Government, is not a service, but it is a status. Therefore, by the aforesaid notification, the status of the person, working under the Government, has not been changed except handing over the administrative control of the department to another Government Department and for doing so, consent from, or notice upon, such employees of the State Government, is not a legal requirement. 17. In WP(C)427(AP)/2008: Mr. Kirba Lomi & Anr, Vs. State of Arunachal Pradesh decided by this Bench, on 30.03.2012, while discussing the constitutional status of an employee in the State Government, this Court observed as follows: As a matter of fact though the employment of a Government servant and the employment of a person in a private sector is, basically, contractual in nature, but the distinguishing feature of a Government employee from others being a Government employee acquires a status, on his appointment to a Government Department. The status, which he acquires on his service conditions are determined on the basis of the relevent provisions of the constitution and the statute. In consequence thereof, a Government servant's rights and obligations can be determined by the statutory or the constitutional authority concerned and for such exercise of powers, the authority concerned does not, unlike the case of a private employee, require consent from the Government employee concerned. In other words, Government can alter terms and conditions of its employee unilaterally, though, in practice, such alteration may face protest from the employees concerned. This does not, however, mean, I must hasten to add, that the consent of the Government employee a condition precendent for changing the terms and conditions of his service by the statutory or constitutional authority in terms of the provisions of the relevant statutes and/or the Constitution. A reference may be made, in this regard, to the case of Advocate General of the State of J & K Vs. A reference may be made, in this regard, to the case of Advocate General of the State of J & K Vs. T.N. Khosa ( AIR 1974 SC 1 ), wherein the Supreme Court has held thus: it is well settled that though employment under the Government like that under any other master may have a contractual origin, the Government servant acquires a 'status' on appointment to his office. As a result, his rights and obligations are liable to be determined under statutory or constitutional authority which, for its exercise, requires no reciprocal consent. The Government can alter the terms and conditions of its employees unilaterally and though in modern times consensus in matters relating to public services is often attempted to be achieved consent is not a precondition of a validity of rules of service, the contractual origin of the service notwithstanding. 18. In Kirba Lomi (supra), this Court also dealt with the question as to whether the Government would have the power to change the service conditions of a Government employee. The relevant discussion in Kirba Lomi (supra), is extracted herein below; 13. What follows from the above is that the service conditions of a Government employee can be changed by making changes in the relevant statutes or rules by the statutory or constitutional authority concerned in terms of the statute and/or the Constitution, This power to alter to alter conditions of service, undoubtedly includes the power to alter the conditions of service with retrospective effect. Such a broadly stated position of law governing the status of Government employees is, however, subject to the condition that the benefits acquired with regard to the conditions of service, by virtue of the relevant existing statutory or constitutional provisions, cannot, with retrospective effect, be taken away, abridged or withdrawn by amending the statute concerned and/or the Constitution nor can such amendment be allowed if such amendment is arbitrary, discriminatory, unreasonable or violative of Articles 14 and 16 inasmuch as by acquiring such benefit, the employees is vested with a right and such a right cannot be taken away by a mere change in the statute or the rules with retrospective effect. While considering this aspect of the matter, the observations of the Supreme Court in Union of India Vs. Tushar Ranjan Mohanty, reported in (1994) 5 SCC 450 , may be borne in mind, which run as follows: 12. While considering this aspect of the matter, the observations of the Supreme Court in Union of India Vs. Tushar Ranjan Mohanty, reported in (1994) 5 SCC 450 , may be borne in mind, which run as follows: 12. In T.R. Kapur Vs. State of Haryana three petitioners T.R. Kapur, Mahinder Singh and V.D. Grover, who were Diploma holders, were working as Sub-Divisional Officers on regular basis under the unamended Rule 6(b) of the Punjab Service of Engineers Class-I, Public Works Department (Irrigation Branch) Rules 1964. They were eligible for promotion as Executive Engineer in Cass-I service despite the fact that they did not possess a degree in Engineering. By the Notification dated 22.06.1984, Rule 6(b) was amended and it was provided that a degree in Engineering was an essential qualification for promotion of Assistant Engineers (Irrigation Branch) to class-I service and thereby the petitioners were rendered ineligible for promotion to the post of the Executive Engineer in class-I service. The amendment was challenged in this Court by way of a petition under Article 32 of the Constitution of India, This Court came to the conclusion that the retrospective effect given to the amendment was violative of Articles 14 and 16 of Constitution of India on the following reasoning: (SCCp. 595, Para-16). It is well settled that the power to frame Rules to regulate the conditions of service under the proviso to Article- 309 of the Constitution carries with it the power to amend or altered the rules with a retrospective effect: B.S. Vadera Vs. Union of India, Raj Kumar Vs. Union of India, K. Nagaraj Vs. State of A.P. and State of J. and K. Vs. Trilok Nath Khosa. It is equally well settled that any Rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may note be. It any further be stated that an authority competent to lay down qualification for promotion, is also competent to change the qualifications. Trilok Nath Khosa. It is equally well settled that any Rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may note be. It any further be stated that an authority competent to lay down qualification for promotion, is also competent to change the qualifications. The Rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively This Rule is however subject to a well recognised principle that the benefit acquired under the existing Rules can not be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rules under the Proviso to Article- 309 which affects or impairs vested rights. 14. It is settled principle of service jurisprudence that the power to frame rules to regulate conditions of service under the provisions of Article 309 carries with it the power to amend or alter the rule with retrospective effect. This rule is, however, subject to well recognized principle that the benefit, acquired under the existing rule or a right vested in a Government employee under the existing rules, cannot be taken away by amending the rules with retrospective effect. 19. That the conditions of service can be amended even with retrospective effect is too well settled to be doubted. In the case of K. Nagraj & Ors. Vs. State of Andhra Pradesh: AIR 1985 SC 551 , the Supreme Court has made it clear that such a power flows to the Government under the proviso to Article 309 read with Article 313 of the Constitution and the power, so conferred on the Government, is legislative in character and is to be distinguished from an ordinary rulemaking power. We may, for the sake of brevity, refer to some observations made, in this regard, in K. Nagraj (supra) which read thus: ... it is well settled that the service rules can be as much amended, as they can be made, under the proviso to Article 309 and that the power to amend these rules carried with it the power to amend them restrospectively. The power conferred by the proviso to Article 309 is of a legislative character and is to be distinguished from an ordinary rule making power. The power conferred by the proviso to Article 309 is of a legislative character and is to be distinguished from an ordinary rule making power. The power to legislate is of plenary nature within the field demarcated by the Constitution and it includes the power to legislate retrospectively. Therefore, the amendment made to the Fundamental rules in the exercise of power conferred by Article 309, by which the proviso to Rule 2 was deleted retrospectively, was a valid exercise of legislative power. The rules and amendments made under the proviso to Article 309 can be altered or repealed by the Legislature but until that is done, the exercise of the power can not be challenged as lacking in authority. (See B.S. Vedera Vs. Union of India ( (1968) 3 SCR 575 at pp. 582-585 : AIR 1969 SC 118 at pp. 123-124); Raj Kumar Vs. Union of India ( (1975) 3 SCR 963 , 965 : AIR 1975 SC 1116 at p. 1118). 20. What logically follows from the above discussion is that unlike an employee in a private sector, a Government employee's terms and conditions of service are governed by the relevant statutes, rules and provisions of the Constitution. Such conditions of service can be changed by the constitutional or statutory authority concerned unilaterally. Such a change can even be made with retrospective effect; but benefits acquired or a right, which has accrued or comes to be vested in a Government employee by virtue of the existing rules, cannot be impaired, far less, taken away by amending the conditions of service with retrospective effect Whether an amendment, with retrospective effect, has taken away an accrued or vested right is, however, essentially a mixed question of fact and law and can be determined on the basis of the facts of a given case. 21. Mr. Panging, learned counsel for the respondents, submitted that when the service conditions of the employees and their rights get jeopardized on their transfer from one directorate to another, such a transfer made without the consent of the employee concerned is illegal and violative of Constitutional provision In support of his contention, learned counsel, has relied on the decisions of the Apex Court in H.L. Trehan Vs. Union of India, (1989) I SCC 764 (para 11), (1989) Supple 1 SCC 679 (para 7) and BALCO Captive Power Plant Mazdoor Sangh & Ann Vs. Union of India, (1989) I SCC 764 (para 11), (1989) Supple 1 SCC 679 (para 7) and BALCO Captive Power Plant Mazdoor Sangh & Ann Vs. National Thermal Power Corporation & Ors., (2007) 14 SCC 234 (para 33 & 38). 22. Learned counsel for the appellant, referring to the Rules of Executive Business of the State Government, has pointed out that in terms of the proviso to Rule 3 of the Government of Arunachal Pradesh (Allocation) Business Rules, 1998, the transfer of the administrative control of one department to the other was affected by the State Government, by taking a policy decision. Therefore, the respondents are bound by such policy decision taken by the State Government in the interest of public service. 23. In reply to above contention, learned counsel for the respondents submitted that any policy decision, taken by the State Government, cannot take away, nullify or override the rights of the writ petitioners-respondents to remain under the Directorate of Sports and Youth Affairs. 24. In H.L. Trehan Vs. Union of India, (1989) 1 SCC 764 , relied on by the learned counsel of the respondents/writ petitioners, it has been held that the terms and conditions of service of an employee could not be altered without complying with the rules of natural justice. The relevant extract of the decision, reads as follows: 11. One of the contentions that was urged by Respondents 1 to 4 before the High Court at the hearing of the writ petition, as noticed above, is that unguided and arbitrary powers have been vested in the official by sub-section (1) of Section 11 for the alteration of the terms and conditions of service of the employees- It has been observed by the High Court that although the terms and conditions of service could be altered by CORIL, but such alteration has to be made "duly" as provided in sub-section (2) of Section 11 of the Act. The High Court has placed reliance upon the ordinary dictionary meaning of the word "duly" which, according the Concise Oxford Dictionary, means "rightly", properly, fitly" and according to Stround's Judicial Dictionary, 4th Edn, the word "duly" means "done in due course and according to law". In our opinion, the word" duly:" is very significant and excludes any arbitrary exercise of power under Section 11(2). In our opinion, the word" duly:" is very significant and excludes any arbitrary exercise of power under Section 11(2). It is now a well-established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without complying the rules of natural justice by giving the Government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudically affecting; the existing conditions of service of a Government servant will offend against the provision of Article 14 of the Constitution, Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors- The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice. 25. However, the above observations made by the Apex Court, relate to a Government of India undertaking and relate to violation of certain provisions of Section 11, which prejudicially affected the existing conditions of service. The employer, under the Government department and the public sector undertaking, cannot be placed on the same footing. Employment, in public sector undertaking, is basically a contractual employment, which is not regulated by Article 309 of the Constitution of India unless, otherwise, provided for. However, in case of employment in the Government, service conditions of an employee are regulated by Article 309 of the Constitution of India. Therefore, the above decision, in H.L. Trehan (supra) being based on different set of facts, for alleged violation of Section 11, cannot be pressed into service in the present case. In our considered view, the power when exercised by the Government, in a case of present nature, to transfer the administrative control of one department to the other, in terms of the Business Rules of the Arunachal Pradesh (Allocation) Rules, 1998, after taking a policy decision, cannot be put under challenge. 26. In Balco Captive Power Plant Mazdoor Sangh & Anr. Vs. National Thermal Power Corporation & Ors. (2007) 14 SCC 234, too, the Apex Court has held that the government or instrumentality of the State cannot change the condition of service of its employees and any such alternation causing prejudice can not be effected without affording opportunity of predecisional hearing. The relevant extract of Balco Captive Power Plant Mazdoor Sangh Vs. National Thermal Power Corporation (supra), read as follows: 35. The relevant extract of Balco Captive Power Plant Mazdoor Sangh Vs. National Thermal Power Corporation (supra), read as follows: 35. The Government or its instrumentality cannot alter the conditions of service of its employees and any such alteration causing prejudice cannot be effected without affording opportunity of pre-decisional hearing and the same would amount to arbitrary and violative of Article 14. As pointed out earlier, in the case on hand, the employees are neither party, to tripartite agreement nor they have been heard before changing their service condition. Therefore, the action of the management is violative of Article 14 of the Constitution of India. Similar view has been taken by this Court in H.L. Trehan Vs. Union of India. In para 11 of the judgment, this Court observed as under; (SCC pp. 769-70) 11... It is now a well-established principle of law that there can be no deprivation or curtailment of any existing right; advantage or benefit enjoyed by a Government servant without complying with the rules of natural justice by giving the Government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudically affecting the exsiting conditions of service of a Government servant will offend against the provision of Article 14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice. 27. In Jawahar Nehru University Vs. K.S. Jawatkar, 1989 Supp(1) SCC 679, it was observed that the position in law is clear, that no employee can be transferred, without his consent, from one employer to another. The consent may be express or implied. We do not find it necessary to refer to any case law in support of this conclusion. 28. However, the Apex Court has discussed the unilateral transferability from one employer to another employer in respect of contractual employment. Therefore, transfer of administrative control of one department of a Government to the other, without any change in service conditions of the employee working in the Department, would not attract the decisions in Balco (supra) or Jawaharlal Nehru University (supra), in the present case. 29. Therefore, transfer of administrative control of one department of a Government to the other, without any change in service conditions of the employee working in the Department, would not attract the decisions in Balco (supra) or Jawaharlal Nehru University (supra), in the present case. 29. In the light of the above discussion, it is also required to be considered whether such transfer of the administrative control of the Directorate would have the effect of changing the condition of service of the Government employee. Before examining this issue, it is necessary to bear in mind that the respondents/writ petitioners had alleged that the impugned transfer of the administrative control of the petitioners would deprive them of their chance of promotion to higher posts. Whether mere chance of promotion to a higher posts is a condition of service? In Union of : India Vs. Tushar Kanty (supra), the Supreme Court held that: it is equally well settled that any rule, which effects the rights of a person to be considered for promotion, is a condition of service, although mere chances of promotion may not be. 30. On close examination of the contention of the writ petitioners, it appears that promotional avenues is mere chance of promotion and not a right to be considered for promotion and, hence, the analogy, sought to be projected by relying on the decision of Union of India Vs. Tushar Kanti Mohanty (supra), may not apply to the present case. Further, the transfer of administrative control from one Directorate of the State Government to the other Directorate, in terms of the Rules followed by the Government, cannot be interpreted as transfer from one employer to another employer (See Nehru University Vs. K.S. (supra). 31. Though the respondents/writ petitioners have alleged that the Government's impugned policy decision of transferring the administrative control of the employees of one Directorate to another and the consequential transfer of the writ petitioners to the Directorate of Education is illegal, we are, however, in the light of the discussions held above, of the firm view that there was no vested right in any of the writ petitioners to remain under the control of the Directorate of Sports and Youth Affairs inasmuch as their conditions of service and the existing rights, as employees under the administrative control of the Education Directorate of the Government, did not change. The writ petitioners cannot, therefore, be held to have any vested right to remain under the control of Directorate of Sports and Youth Affairs. More so, when the transfer of administrative control is not from one employer to another employer, the transfer of administrative control of the department was a policy decision of the State Government. Therefore, neither the consent of the employees of the Department was necessary nor the transfer can be said to be illegal. The writ petitioners cannot challenge their transfer as illegal or beyond the powers of the State Government. 32. In the light of the above discussion, both the writ appeals are hereby allowed and the impugned orders, passed by the learned Single Judges in both the writ petitions i.e. W.P.(C) No. 431 (AP)/2006 and W.P.(C) No. 94(AP)/2009, are hereby set aside, 33. Before parting with the record we would like to point out that an employee of the State Government although has no fundamental right of promotion, however he has a right to be considered for promotion. What is necessary to provide is an opportunity of promotion to an employee in his service career as an incidence of service; 34. In State of Tripura Vs. K.K. Roy, (2004) 9 SCC 65 , at page 67, the Supreme Court observed that having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India, State within the meaning of Article 12 of the Constitution should create promotional avenues. The relevant extract of the decision reads as follows: 6... It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue for promotion, he cannot resile thereform. It is not a case where the principle of estoppel or waiver should be applied having regard to the constitutional functions of the State. It is not a case where the principle of estoppel or waiver should be applied having regard to the constitutional functions of the State. It is not disputed that the other States in India/Union of India having regard to the recommendations made on this behalf by the Pay Commission introduced the Scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues. When questioned, the learned counsel appearing on behalf of the appellant, even could not point out that the State of Tripura has introduced such a scheme. We wonder as to why such a scheme was not introduced by the appellant like the other States in India, and what impeded it from doing so. Promotion being a condition of service and having regard to the requirements thereof as has been pointed out by this Court in the decisions referred to hereinbefore, it was expected that the appellant should have followed the said principle. 35. In this regard, the Supreme Court in (2008) 5 SCC 100 : Food Corporation of India & Ors. Vs. Parashotam Das Bansal & Ors. observed as follows- When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground they fell within a category of employees excluded from promotional prospect, the superior Court will have the jurisdictional to issue necessary direction. If there is no channel of promotion in respect of a particular of officers resulting in stagnation over the years, the Court although may not issue any direction as to in which manner a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but the jurisdiction to issue direction to make a scheme cannot be denied to a superior Court of the country. Though a State Government employee has no right to challenge the transfer of administrative control of his department/directorate to another department of the same Government, however, in carrying out such transfer, the State has a responsibility to provide promotional prospect in the service career of the employees by adequately incorporating schemes in the Service Rule. Though a State Government employee has no right to challenge the transfer of administrative control of his department/directorate to another department of the same Government, however, in carrying out such transfer, the State has a responsibility to provide promotional prospect in the service career of the employees by adequately incorporating schemes in the Service Rule. If no channel of promotion in respect to a particular group of employees/officers is kept, it may result in stagnation over the years which obviously would generate dissatisfaction and discontentment among the employees. Therefore, we would like to impress upon the State Government to take necessary steps to make an appropriate scheme, to incorporate promotional avenues to PET/PTI working in the Directorate of School Education, Government of Arunachal Pradesh, so that the employees can be considered for promotion at least once in their service career. With the above observation and direction, both the writ appeals stand disposed of.