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2020 DIGILAW 555 (HP)

Balbir Singh v. State of Himachal Pradesh

2020-09-02

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - By way of this writ petition, the petitioner has prayed for the following substantive reliefs:- "It is, therefore, most respectfully prayed that this writ petition may very kindly be allowed and a writ of certiorari and mandamus, or any other appropriate writ, order or direction, as this Hon'ble Court deems just and proper in the facts and circumstances of the case, may kindly be issued to the respondents to the following effect:- i) That the Recruitment & Promotion Rules for the post of Senior Assistant to the extent same prescribe academic qualification for the said post in the matter of promotion from the post of Junior Assistant, may be quashed and set aside. ii) That a writ of mandamus may very kindly be issued thereby directing the respondents to consider the candidature of the petitioner for the post of Senior Assistant from the date his immediate juniors have been promoted, with consequential benefits of pay, seniority, arrears etc. etc." 2. The case of the petitioner is that he was initially appointed as a Public Distribution Clerk in the year 1984 and thereafter promoted to the post of Junior Assistant in the year 1989. The next promotional post was that of Senior Assistant. The grievance of the petitioner is that by virtue of an amendment, which was incorporated in the existing Recruitment & Promotion Rules on 9th of October, 1998, the criteria of promotion to the post of Senior Assistant was altered to the deterrent of the petitioner to the effect that with the introduction of the minimum qualification of Graduation for being eligible for promotion to the post of Senior Assistant, the petitioner was rendered ineligible for promotion to the said post. According to him, since the year 2004, up to superannuation, he performed the duties of Senior Assistant and this also rendered him otherwise eligible to be conferred the benefit of being promoted to the post of Senior Assistant, i.e. the post on which he worked from the year 2004 till his superannuation. It is further the case of the petitioner that some of the persons who were similarly situated as the petitioner, i.e. who were not possessing the qualification of Graduation, were promoted by the respondent-Corporation to the post of Senior Assistant but said benefit of relaxation has not been given to him. 3. It is further the case of the petitioner that some of the persons who were similarly situated as the petitioner, i.e. who were not possessing the qualification of Graduation, were promoted by the respondent-Corporation to the post of Senior Assistant but said benefit of relaxation has not been given to him. 3. The case of the petitioner has been resisted by the respondent-Corporation inter alia on the ground that petitioner had no inherent right of promotion and though he had a right of consideration only, however, on the date when his turn on the basis of seniority came for being promoted to the post of Senior Assistant, as he was not eligible for promotion in terms of the Recruitment & Promotion Rules, therefore, there is no illegality in the act of the respondent-Corporation in not promoting him to the post of Senior Assistant. The factum that the petitioner was eligible for being promoted to the post of Senior Assistant was also emphatically denied by the respondent-Corporation. It is further denied by the respondent-Corporation that any person, who was not possessing the minimum qualification of Graduation, was promoted to the post in issue after the amendment in the Recruitment & Promotion Rules was made on 9.10.1998. 4. I have heard learned Counsel for the parties and gone through the pleadings as well as documents appended therewith. 5. It is not in dispute that with effect from 9th October, 1998, only those P.D.Cs/Junior Assistants were eligible for being promoted to the post of Senior Assistant who possessed the minimum qualification of Graduation. It is settled law that the employer has the prerogative of laying down the eligibility criteria which a person has to fulfill to be eligible to be recruited or being promoted to the post in issue and the exercise of said discretion by an employer, is ordinarily not bridled down by the Court in exercise of its power of judicial review until and unless the conditions laid down by the employer are so arbitrary that they shock the judicial conscious of the Court. 6. Coming to the facts of this case, the employer in its wisdom had incorporated the condition of an incumbent from feeder category being Graduate for the purpose of appointment to the post of Senior Assistant. The post of Senior Assistant is a Class-III post. 6. Coming to the facts of this case, the employer in its wisdom had incorporated the condition of an incumbent from feeder category being Graduate for the purpose of appointment to the post of Senior Assistant. The post of Senior Assistant is a Class-III post. By no stretch of imagination, it can be said that imposition of condition of an incumbent from the feeder category being Graduate for promotion to the said post is arbitrary. In case, the endeavour of the employer is that the officer/officials who man the post of Senior Assistant should possess minimum qualification of Graduation, then, this desire of the employer has to be respected by the Court. 7. Learned Counsel for the petitioner has argued that as the petitioner was eligible to be promoted to the post of Senior Assistant at the time when he initially joined the job, and thereafter, when he was promoted/placed against the post of Junior Assistant, therefore also, the act of the respondent-Corporation of carrying out amendment in the Rules is arbitrary because the petitioner had a legitimate expectation that he would be promoted to the post of Senior Assistant on the strength of qualification which he possessed at the time when he joined the job. In my considered view, there is no merit in the said contention of learned Counsel for the petitioner for the simple reason that the law as it stands now is that in the case of promotion, same has to be governed by the Recruitment and Promotion Rules which are in vogue at the time when a candidate is considered for promotion. Hon'ble Supreme Court of India in Rajasthan State Sports Council and another versus Uma Dadhich and Another, (2019) 4 SCC 316 , has been pleased to hold that there is no vested right to promotion but only a right to be considered for promotion in accordance with Recruitment and Promotion Rules, as they exist on the date when the case for promotion is to take place. 8. In this view of the matter, as the petitioner has not been able to point out that the amendment in the Recruitment and Promotion Rules was incorporated by the Respondent-Corporation on account of certain malafides or with an intent to favour a particular group of persons, this Court is not inclined to interfere with the Recruitment and Promotion Rules so framed by the respondent-Corporation. As far as the contention of the petitioner that he has worked against the post of Senior Assistant from the year 2004 till his superannuation, is concerned, if that is so, the petitioner is at liberty to approach the respondent-Corporation independently, if he has any cause in that regard for having served as such. In the event of any such representation being made by the petitioner, the respondent-Corporation may decide the same within a period of two months from the date of receipt thereof, in accordance with law. However, it is clarified that on this issue this Court has not expressed any view on merit. With these observations, this writ petition is disposed of. Pending miscellaneous application(s), if any, also stand disposed of accordingly.