ivil Appeal No 3607 of 1989
From the Judgment and Order dated 25488 of Central Administrative Tribunal Hyderabad in TA No 118586
R Venkataramani VG Pragasam and SM Garg for the Appellant
Kapil Sibal Additional Solicitor General B Datta Mrs Indra Sawhney Ms Sushma Suri B Rajeshwar Rao Vimal Dave and CV Subba Rao for the Respondents
446 The Judgment of the Court was delivered by KANIA J
This is an appeal by special leave against a decision of the Central Administrative Tribunal Hyderabad in Transfer Application No 1185 of 1986 WP NO 8226 of 1985
All the relevant facts have been set out by the Tribunal in its judgment
As we are in agreement with the reasoning and conclusions of the Tribunal in the impugned judgment we propose to set out only the brief facts necessary for the disposal Of the appeal
Under the relevant rules the recruitment to the post of Superintending Mechanical Engineer was by promotion and failing that by direct recruitment
It may be mentioned that for direct recruitment to the said post the qualifications of a degree in Mechanical or Automobile Engineering was prescribed as essential
For promotion to the post of Direc tor ME the requisite qualification was five years 01  service in the grade of Mechanical Engineer Senior
The appellant became eligible for promotion in 1978 but he was not promoted as there were some senior persons in his grade who were promoted to the said post
On January 31 1984 a Notification was issued by respondent No 1 amending the said Rules and the said Notification was duly published in the Gazette of India
By the said amendment the said Rules were amended and it was prescribed that for promotion to the post of Director ME a degree in Engineering was a requi site qualification
The appellant challenges the validity of this Notification on the ground that it affected his chances of promotion or alternatively his right to be considered for promotion to the post of Director ME
The appellant is a Mechanical Engineer Senior in the Geological Survey of India Southern Region Hyderabad
The appellant is a diplo ma holder and does not hold any degree in engineering
On April 27 1964 he was appointed as Transport Officer Class I Technical Grade Gruop A 
This post was redesig nated and merged with the post of Mechanical Engineer Junior in March 1968
On November 28 1969 the Geological Survey of India Group A  and Group B  Posts Recruitment Rules 1967 made under Article 309 of the Constitution were brought into force
The appellant was promoted as a Mechani cal Engineer Senior with effect from March 17 1973 and his conditions of service were governed by the aforesaid rules
These rules have been amended from time to time
It was submitted by learned counsel for the appellant that the said amendment purported to be carried out by the said Notification was bad in law as it adversely affected a condition of service relating to promotion
It was submitted 447 by learned counsel for the appellant that if the rule requiring a degree qualification for promotion to the post of Director ME was applied as far as the appellant was concerned it would amount to giving a retrospective effect to the operation of the said rule and no retrospective rule could be framed under Article 309 of the Constitution
This contention was rejected by the Tribunal which held that it was for the Government to prescribe such qualifications as it considered fit for the post of Director ME and the Tribunal could not go into the question whether that quali fication was necessary unless the prescribing of the re quirement could be said to be perverse
The Tribunal further took the view that the appellant had no vested right to promotion but had a mere chance of promotion and he was not entitled to challenge the rule merely on the ground that it affected his chance of promotion
The said appeal is direct ed against the said decision
The main argument of learned counsel for the appellant is that the Tribunal was in error in holding that the rule affected merely a chance of promotion which the appellant had
It was submitted by him that although the appellant could not claim any right to be promoted he certainly had the right to be considered for promotion and the amendment to the rule carried out by the said Notification depriving of that right was bad in law
Strong reliance was placed by the learned counsel for the appellant on the decision of this Court in TR Kapur and Others vs State of Haryana and Others 1986 Supl
SCC 584 at 595 where it was held that right to be considered for promotion is a condition of service
This decision is however of no assistance to the learned counsel in support of his argument because the Bench which rendered the said decision has stated at paragraph 16 page 595 of the said report as follows It is well settled that the power to frame
rules to regu late the conditions of service under the proviso to Article 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect
It is equal ly well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chance of promotion may not be
 It was further held that an authority competent to lay down qualifications for 448 promotion is also competent to change the qualifications
The rules defining qualifications and suitability for promo tion are conditions of service and they can be changed retrospectively It was however clarified that unless it is specifically provided in the rules the em ployees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled
 It is only in this sense that is as set out in the immediately preceding paragraph that the view has been taken that the rules cannot be retrospective
The ratio of this decision is not applicable to the case before us as there is no question of reverting the appellant
Again it has been held by a Bench comprising three learned Judges of this Court in State of Maharashtra and Another vs Chandrakant Anant Kulkarni and Others  at paragraph 16 page 141 of the said report that 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 condition of service
A right to be considered for promotion is a term of service but mere chances of promotion are not
It was also held there that mere passing of the departmental examination conferred no right on the concerned ST Inspectors of Bombay to promotion
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
In our opinion n0 retrospective effect has been given to the said amended rule
It is not argued that the appel lant has been reverted from the post which he occupies on the ground of any lack of any qualification
The only effect is that his chances of promotion or his right to be consid ered 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
The next argument advanced before us by the learned counsel for the appellant is that employees in the drilling stream who might be diploma holders could move by promotion to the grade of Director Drilling which is equivalent to the post of Director Mechanical Engineering and would be further eligible to be considered for the 449 next higher post of Deputy Director General Engineering Service on the basis of a common seniority of Directors Mechanical and Directors Drilling
It was submitted that in this situation the requirement of a degree for promotion to the post of Director Mechanical must be regarded as unreasonable and bad in law
This argument was rejected by the Tribunal on the ground that the fact that for the higher post of Deputy Director General Engineering Service it is not necessary to hold a graduate degree is no reason why a degree requirement for the post of Director Mechanical should be regarded as unreasonable or bad in law
It is for the Government to decide what qualification was required for the promotion to the post of Director ME and unless that requirement was totally irrelevant or unreasonable it could not be said to be bad in law
In this regard we agree with the reasoning and conclusions or  the Tribunal
In the result the appeal fails and is dismissed
There will be no order as to costs
GN Appeal dis missed


Summary:
In August 1982 the Government of Madhya Pradesh decided to abolish the Madhya Pradesh Lift Irrigation Corporation
It was also decided to merge the surplus staff of the Corpo ration in the equivalent posts of the Irrigation Department of the State Government
Accordingly with effect from 8101982 the appellants who were serving as Senior Techni cal Assistants STAs in the Corporation became Junior Engineers in the Irrigation Department but their seniority therein was fixed below the erstwhile Junior Engineers of the State Department
For this purpose an equivalent number of posts were deemed to have been created in the dying cadre of Junior Engineers
Similarly the Junior Technical Assist ants in the Corporation were absorbed in the lower cadre of Sub Engineers
The Junior Engineers of the State Department on comple tion of two years  service as Junior Engineers were enti tled to be considered for promotion to the gazetted post of Assistant Engineers
Sometime in 1984 the appellants who were at the bottom of the seniority list of Junior Engineers became eligible for promotion as Assistant Engineers
Their legitimate claims in this regard were being stalled by the State and so the appellants filed a writ petition in the High Court of Madhya Pradesh in 1986
Later the whole scheme of merger as envisaged in the order dated 8101982 was sought to be upset to the detri ment of the appellants and towards that end the order issued on 810
1982 was amended on 131986
The effect of this amendment was that the Senior Technical Assistants were to be absorbed in the lower posts of Sub Engineers retro spectively with effect from 81082
The amendment however provided that they shall be eligible for promotion to the posts of Assistant 425 Engineers from the quota of Graduate Sub Engineers
This amendment vitally affected the interests of the appellants in so far as their status and chances of promotion were concerned
Having failed before the High Court the appellants have come to this Court by way of special leave
Before this Court it was contended on behalf of the appellants that they having been given the right at the time of absorption in 1982 that they will be eligible for promo tion in the same way as the erstwhile Junior Engineers of the State Department this right could not be done away by invoking an earlier amendment of the rules
On behalf of the respondent State it was inter alia contended that 1 the decision of the State Government to absorb the appellants as Junior Engineers had overlooked the fact that on 8101982 there was no cadre of Junior Engi neers because that cadre had been abolished in July 1979 and therefore this mistake was rectified on 131986 by absorbing the appellants in the lower cadre of Sub Engi neers2 the appellants when they opted to join as Junior Engineers were aware that according to the rules prevailing on that date there was no avenue of promotion for them as Assistant Engineers 3 after 27781 the relevant recruit ment rules had been amended which made it clear that after that date there could be no promotion to the posts of As sistant Engineers from amongst Junior Engineers and 4 the Junior Engineers belonging to the State Service had a right of promotion earlier and this was continued even after the amendment whereas the appellants became Junior Engineers at a time when there was no further promotion available to them and this made all the difference
Allowing the appeal this Court HELD 1 The assumption of the respondents that the cadre of Junior Engineers had ceased to exist long before the absorption of the appellants into the Department is incorrect
Though the decision to abolish the cadre was taken in 1979 and the existing posts were converted into those of Assistant Engineerssub Engineers on 2751980 the cadre did not die for the Junior Engineers of the Depart ment who were then functioning continued to function as before until they were promoted in due course as Assistant Engineers
438E F 2 It is also not correct to say that this crucial fact had been overlooked at the time of passing the merger order of 81082
On the 426 contrary the State was fully conscious of its earlier decision and the order of 81082 specifically mentions that the posts of Senior Technical Assistants will be merged in the posts of Junior Engineers and an equivalent number of posts shall be deemed to have been created in the dying cadre of Junior Engineers
438F G 3 Rule 6iv of the Non Gazetted Service Rules read with Schedule I clearly empowered the Government in the exigencies of the situation to continue the cadre for limited purposes and augment the same by the number of Senior Technical Assistants absorbed from the Corporation
439H 440A 4 On the terms of the relevant rules as on the lan guage of the order of 8101982 the appellants viz Senior Technical Assistants absorbed from the Corporation were constituted as a part of the cadre of Junior Engineers placed on complete par with the Junior Engineers of the department already in service and given the same promotional eligibility and opportunities as the latter
440A B 5 It was open to the State in view of rule 74 of the Gazetted Service Rules of 1968 to promote members of the non gazetted services also to the Gazetted Service to the extent of a prescribed quota
The restricted language of rule 7 cannot therefore be construed in such a way as to render redundant the specific provision in the Schedule entitling several persons from the Non Gazetted services to promotion
440G H 6 In interpreting these rules and Government orders one should bear in mind that the promotional stipulations in Schedule II should be read in the light of rule 74 which permits a wide latitude to the Government in making recruit ments by way of promotion even otherwise than in the manner outlined in rule 71
Reading the rules and the Government orders issued from time to time harmoniously the effect of the cabinet order of July 1979 was that all JEs in position as such should continue to be promoted until all of them became Assistant Engineers
442F G 7 It is seen from the records that such of the Junior Engineers belonging to the cadre as had been in service with the State Department have continued to get their promo tions even after the 1981 amendment
If that be so then clearly the Department cannot discriminate as between offi cers belonging to the same cadre by promoting some of them and denying promotion to others
A discrimination between them would be totally arbitrary and contrary to the scheme of absorption envisaged in 1982
441F G 442B 427 8 The truth of the matter is that when abolition of the cadre of Junior Engineers was thought of the State decided that this should not affect the existing Junior Engineers and their promotional chances
Again when the merger of the Corporation and State services was thought of the decision was that the Senior Technical Assistants should be placed on par with the Junior Engineers of the State Service
This was a conscious and equitable decision and to go back upon it has resulted in arbitrary discrimination against the appellants
By the decision of 1986 they lose their status as Junior Engineers and are equated to Sub Engineers which is the status also accorded to the Junior Technical Assistants their subordinates in the erstwhile Corporation they lose their right to promotion they lose seniority by being placed at the bottom of the Sub Engineers of the State services and the promotional quota now allot ted to them is illusory
443B D 9 Gross injustice has been done to the appellants by the decision of 131986
This decision is therefore quashed
Accordingly the appellants will be entitled to be considered for promotion as Assistant Engineers in the same manner and to the same extent as the Junior Engineers of the State service have been considered and not on the basis of the percentages prescribed for Sub Engineers under the amended rules
443F G