Civil Writ Petition No.7283 of 2004 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.7283 of 2004 Date of Decision: January 30, 2008 Balram Singh & another ...Petitioners VERSUS The State of Haryana & another ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mrs.Abha Rathore, Advocate, for the petitioners. Mr.Yashwinder Singh, AAG, Haryana, for the State. ***** RANJIT SINGH, J. Feeling aggrieved that the petitioners are deprived of all avenues of promotion, they have filed this writ petition for quashing of order rejecting their representation asking for providing an avenue of promotion to them. The petitioners are working as Helper Battery Attendants Civil Writ Petition No.7283 of 2004 : 2 : and were appointed as such on 22.4.1993 and 22.5.1993 respectively. A common seniority list of Helper Electrician and Helper Battery Attendant was maintained by the Transport Department, Haryana. It is stated that both are performing the same or similar duties. Helper Electrician and Helper Battery Attendant were eligible for promotion to the post of Assistant Battery Attendant. The Rules have now been changed w.e.f. 31.1.1995, when Haryana Transport Department has introduced new Rules. The post of Assistant Battery Attendant now can be filled by promotion from amongst Helper Electrician with three years experience. Helper Battery Attendants, according to new rules, are not found mentioned in the Rules for further promotion to the post of Assistant Battery Attendant. The persons, who were junior to the petitioners in the common seniority list and working as Helper Electricians, have been promoted as Assistant Electrician, whereas the petitioners are not being considered for such promotion. The petitioners gave representation in this regard on 16.1.2003, which was followed by another representation dated 7.8.2003, which has now been rejected through a communication dated 4.2.2004 on the ground that there is no provision in 1995 Rules for consideration and promotion for the petitioners to the post of Assistant Battery Attendant. The petitioners have, thus, filed the present writ petition. Initially the petitioners have filed a writ petition seeking quashing of the order rejecting the representation filed by them. Subsequently, however, the writ petition was amended to challenge the Rules, whereby the petitioners were being denied the right of consideration and promotion in terms of the amended Rules. Civil Writ Petition No.7283 of 2004 : 3 : Respondents have filed a written statement in response to the notice issued. It is pleaded that the writ petition is liable to the dismissed on the ground that there is no provision in 1995 Rules for promoting Helper Battery Attendant to the post of Assistant Battery Attendant/Assistant Electrician. It is further stated that the cadre of Helper Battery Attendant is separate from the cadre of Helper Electrician and there is no provision for promoting the Helper Battery Attendant to the post of Assistant Electrician/Assistant Battery Attendant etc. I have heard the learned counsel for the parties. M/S Abha Rathore, counsel for the petitioners has made two-fold grievance. She would first contend that the amendment in the Rules, which is taking away the right of consideration and promotion of the petitioners with retrospective effect, cannot be sustained, specially so when it results in discrimination or any violation of the constitutional right of the petitioners. She would then contend that the Government and the Department could not have made a rule denying or depriving the petitioners of further promotional avenues and this act of the respondents cannot be held justified under law. State counsel, on the other hand, would stick to the stand taken in the written statement to urge that the petitioners cannot be promoted as there is no avenue of promotion provided for them under the Rules. The averment made by the petitioners that earlier common seniority list of Helper Electrician and Helper Battery Attendant was maintained by the Department is not denied. It is also not specifically denied that both Helper Battery Attendant and Helper Civil Writ Petition No.7283 of 2004 : 4 : Electricians are doing the same work and discharging same duties. It is simply stated in the reply that Haryana Transport Department has notified Rules w.e.f. 31.1.1995 and in compliance thereto, two separate seniority lists of Helper Electrician and Helper Battery Attendant were prepared and the petitioners have been put into separate seniority list. Attempt is made to show that work of persons holding these two posts is different. Once there was a common seniority list, which has now been made separate on the basis of Rules formulated in the year 1995, the petitioners or their likes stand deprived of their chance of consideration and promotion etc. This aspect is not denied by the respondents. Can a person be denied all avenues of promotion and made to stagnate at the same post throughout his life?. This question may need an answer. The prayer made in the writ petition is for quashing the Rules restricting the avenues of promotion to the post of Assistant Battery Attendant out from Helper Electrician. During the course of arguments, the learned counsel for the petitioners, however, prayed that the respondents can be directed to provide avenues/charges of promotion to the petitioners by suitably making a provision in the Rules. Learned counsel has referred to the case of Ravindranath Pai & Anr. Vs. State of Karnataka & Anr., 1995(2) SLR 113 to urge that even a statutory rule which can have retrospective effect should not result in discrimination or violation of the constitutional right. In the case of Ravindranath Pai (supra), reference is made to K.Narayanan and others v. State of Karnataka and others 1994 Supp. (2) SCC 44, wherein it is held that Rules operate prospectively. . Retrospectively Civil Writ Petition No.7283 of 2004 : 5 : is exception and where the statute permits framing of rules with retrospective effect, the exercise of power must not operate discriminately or in violation of any constitutional right so as to affect vested right. Constitution has guaranteed right of consideration for promotion, whereas there is no provision guaranteeing right of promotion to an employee. The action of the respondents in this case has led to depriving the petitioners of their right to consideration for promotion even. They may not be entitled to a promotion as a matter of right, but Article 16 would guarantee the petitioners to have an opportunity in the matter of public appointments without any discrimination and on the basis of equality. In a way, the rules as introduced by the respondents have taken away even the right of consideration of the petitioners for promotion, which was available to them when they entered the service. No reasons are forthcoming as to why the posts held by the petitioners were earlier equated with Helper Electrician, who are still eligible for promotion to the post of Assistant Battery Attendant or Assistant Electrician, but this has been denied to Helper Battery Attendant. The respondents should have informed themselves at the time of framing Rules that this may lead to the allegation of discrimination. The challenge to the vires of a rule for quashing of the qualification for promotion as laid down for Assistant Battery Attendant appears to have been made in a half- hearted manner by urging that this rule as framed is ultra-vires of the Constitution. Simply because a person has been denied a right for consideration for promotion may not lead to the consequences of rendering the rule to be ultra-vires of the Constitution of India. Civil Writ Petition No.7283 of 2004 : 6 : Promotion is not a constitutionally guaranteed right. Absence of provision of promotion may be unjustified, but it may not be possible to say that it is un-constitutional. As held in the case of Dr.Ms.O.Z.Hussain Versus Union of India , 1990 Supp. SCC 688, promotion is a normal incidence of service. As observed by the Hon'ble Supreme Court, promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. There can hardly be any justification for giving benefit of promotion to one set of employees working in the same Department and performing similar or identical duties and depriving the same to other set of employees either working in the same Department or in an another Department of the State and performing same and similar duties. As observed by the Hon'ble Supreme Court in Dr.Ms.O.Z.Hussain's case (supra) in a welfare State it is necessary that there should be an efficient public service and, therefore, it should be the obligation of the Department to attend to the representation of its employee and to provide promotional avenues for those categories, who are denied the same. Having regard to these considerations, the Hon'ble Supreme Court issued direction to the Ministry concerned to frame a set of appropriate rules within a period of four months inter-alia providing suitable promotional avenues for group of Scientists, who were not having such avenues of promotion. Having considered the entire matter in its proper perspective, I am of the considered opinion that the case of the petitioners would deserve a consideration by the respondents to consider providing some avenues of promotion to the petitioners Civil Writ Petition No.7283 of 2004 : 7 : specially when they were earlier eligible for consideration for promotion etc. The petitioners have not made out any valid ground for quashing of the Rules as framed and prayer to that an extent made in the writ petition is declined. Their grievances can be addressed by considering for providing avenue of promotion. Taking away the right of consideration of promotion which was earlier available may not be held justified. The writ petition is disposed of in the above terms. January 30, 2008 ( RANJIT SINGH ) ramesh JUDGE