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2022 DIGILAW 85 (MEG)

Valencia Syiemlieh v. State of Meghalaya

2022-04-13

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The petitioner is a Grade-III employee and is working as a Receptionist in the Meghalaya Legislative Assembly Secretariat. The grievance in the petition is that a change in the applicable Rules pertaining to promotion from what was provided under the original Rules of 2011 has resulted in serious prejudice to the petitioner and robbed the petitioner of the monetary benefits that the petitioner would have gained upon the promotion that she could have obtained in terms of the Rules of 2011. 2. It is the petitioner's case that at the time that she joined the service, there were no Rules in place providing for promotion or indicating which of the posts would be filled up by direct recruitment and which others only by promotion or by a combination of promotion and direct recruitment. The petitioner says that upon the Meghalaya Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 2011 coming into effect, the cadre of Lower Division Assistant (LDA) in the Assembly Secretariat was to be filled up to the extent of 20 per cent by promotion and the remaining 80 per cent by direct recruitment. As to the provision for promotion, the said Rules of 2011 provided as follows: 'From amongst the Receptionist/Intercom Operators/Typist and other eligible employees of the Meghalaya Legislative Assembly Secretariat with 3 years experiences (sic) in any of those grades and possessing Higher Secondary School Leaving Certificate qualification.' 3. The Rules of 2011 came to be completely replaced by the Meghalaya Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 2015 published on or about May 4, 2016. 4. Under the 2015 Rules, 20 per cent of the persons inducted as LDA would be by way of promotion from various streams and the remaining 80 per cent would also be by way of promotion but only from among the Typists as per the seniority list. 5. The first grievance of the petitioner is that when Typists were included as a part of the members from various streams at the Grade-III level who would be entitled to be considered for promotion to be appointed as LDA, the 2015 Rules did away with LDA being an entry-level post to the extent of 80 per cent and 80 per cent of LDA posts were kept reserved from promotees from among Typists. The petitioner claims that this change in the Rules was arbitrary as the petitioner as a Receptionist was earlier required to be treated at par with the Typists and Stenographers to be eligible for consideration for promotion to LDA, but Typists were more favoured under the changed Rules of 2015. 6. The bogey raised by the petitioner pertaining to the 2015 Rules need not be addressed at all. It is the admitted position that the Rules of 2020 have now been introduced and, under such Rules, only existing employees would get entry at LDA level by promotion and, if the promotees do not fill up the vacancies, the remaining vacancies would be filled up by departmental competition from among the Grade-III staff, subject to the candidates possessing a degree with computer knowledge and at least three years' experience at the Grade-III level. Such Rules of 2020 have been challenged in the present proceedings as being arbitrary, whimsical and prejudicial to the interest of the petitioner since the petitioner was earlier assured of the promotion and monetary benefits, subject to meeting certain criteria. 7. As to the challenge to the 2015 Rules, there does not appear to be any merit therein, particularly since 20 per cent of the posts at the LDA level, even under the 2015 Rules, had been kept for promotees from among the Typists, Receptionists, Computer Operators and other eligible personnel in Grade-III. It is true that 80 per cent of the posts were reserved under the 2015 Rules for promotion from among the Typists, but what is of paramount importance is that the petitioner's right was not prejudiced since the petitioner and others of her ilk were still entitled to be considered for promotion for filling up the 20 per cent of the vacancies at the LDA level. More importantly, it is the prerogative of the employer to decide what kind of employees such employer would want at a particular level. However, if there are existing Rules that provide for the career progression to persons at a lower level by way of promotion, the avenues for promotion cannot be taken away by the employer. 8. By the 2015 Rules, the petitioner's position remained unaffected, though Typists stood much better as a class as they were to make up 80 per cent of the LDA posts upon promotion. 8. By the 2015 Rules, the petitioner's position remained unaffected, though Typists stood much better as a class as they were to make up 80 per cent of the LDA posts upon promotion. To the extent that the petitioner's challenge to the 2015 Rules may be seen as preferring a class of employees over another, the same would not be justiciable and it would fall within the prerogative domain of the employer. However, if the petitioner's position had been prejudiced to her detriment, in the sense that her promotional avenues were curtailed, that may have excited the Court. Since 20 per cent of the LDA posts were kept for promotees from among the various categories to which the petitioner belonged, the fact that another class of employees had been given a better chance to be promoted cannot be a good ground for challenging the change in the Rules. 9. The 2020 Rules are, however, completely different. The petitioner and other persons in Grade-III no longer stand a chance to be promoted to the post of LDA except in an extraordinary situation when a vacancy is not filled up by the primary method indicated in the 2020 Rules and a departmental competition is resorted to. Also, it must not be missed that the 2020 Rules have a further educational qualification that was not there in the previous sets of Rules. Thus, under the 2020 Rules, even if the petitioner otherwise has a chance to be promoted to LDA in any examination, if she does not possess the requisite educational qualification, the petitioner would not be considered for promotion. 10. Prima facie, these are good grounds for challenging the 2020 Rules. However, the employer has indicated in the affidavit filed in the present proceedings that in lieu of the lack of promotional avenues for employees like the petitioner, an assured career progression scheme has been introduced and the petitioner will be entitled to the benefits thereunder. 11. While an employee under a State or in a body answering to the description of 'authority' in Article 12 of the Constitution can claim a right to be considered for promotion if the relevant post envisages promotion, such right is directly linked to the additional monetary or like benefits that the concerned employee may be entitled to upon promotion. 11. While an employee under a State or in a body answering to the description of 'authority' in Article 12 of the Constitution can claim a right to be considered for promotion if the relevant post envisages promotion, such right is directly linked to the additional monetary or like benefits that the concerned employee may be entitled to upon promotion. If, instead of promoting the employee, the monetary and other benefits due to such employee upon promotion are made available by a scheme introduced for such purpose, the concerned employee should have no further grievance. 12. The principle must be understood. Just as a public employee has merely a right to be considered for promotion and no veritable right to be promoted, similarly, such right can be traced to the additional benefits that the promoted post would bring to the employee. Just as it is possible for a person who has been promoted to not be required to discharge the duties of the promoted post on the choice of the employer, as long as the benefits and perquisites pertaining to the promotional post are made available to the employee, the employee can have no grievance in such regard. 13. Thus, upon the career progression scheme being put in place by the employer in this case, the possibility of an employee in the position of the petitioner herein to be promoted after a certain number of years has to be taken into consideration for the purpose of indicating the quantum of benefits, whether monetised or not, that the concerned employee would be getting in lieu of the probable promotion upon the promotional avenues being abolished. In other words, if an employee was likely to be promoted to a superior post at the end of a fixed tenure and the post is abolished or the promotional avenues are taken away prior thereto, the career progression scheme introduced for such employee must be such as would confer the same monetary benefits and perquisites that such employee may have obtained upon the employee being promoted after the given number of years. To an extent, the 2020 Rules may not be justified, but upon the career progression scheme as indicated in the employer's affidavit being introduced to ensure that the same monetary benefits and perquisites are also available to an employee in the position of the petitioner, in lieu of the chance to be promoted, the grievance of the petitioner appears to have been addressed. 14. Accordingly, WP (C) No.131 of 2021 is disposed of by observing that it will be open to the petitioner to approach this Court again in the event that under the career progression scheme which now covers the petitioner, the petitioner earns less than what the petitioner would have earned or such scheme gives the petitioner less than the perquisites that the petitioner would have obtained if the petitioner had been considered for promotion or promoted in terms of the Rules as they stood prior to the Rules of 2020 taking effect. In the event the career progression scheme referred to by the State is less beneficial in terms of money and perquisites than what the petitioner would have got upon promotion under the earlier Rules, it will be open to the petitioner to challenge the scheme. 15. Since the prejudice likely to be suffered by the petitioner upon the petitioner's promotional avenues being taken away has been addressed in monetary terms upon the career progression scheme being introduced, as long as such scheme results in the petitioner getting the same benefits after a given number of years that the petitioner may have got if the petitioner had been promoted, the Rules of 2020 do not call for any interference. 16. There will, however, be no order as to costs.