IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 267 of 2011 Bahadur Singh and others ….…… Appellants. Versus Deewan Singh Bhandari and others ………. Respondents Mr. Manoj Tiwari, Senior Advocate with Mr. Alok Mehra, Advocate for the appellants. Mr. D.S. Bisht, Advocate for respondent Nos. 1 and 2. Mr. J.P. Joshi, Chief Standing Counsel for the State / respondent Nos. 3 to 5. Date of Judgment: 17.11.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C.J. (ORAL) In exercise of power, conferred by the proviso to Article 309 of the Constitution of India, the State of Uttar Pradesh, on 19th June, 1993, made the Uttar Pradesh Horticulture and Food Processing Subordinate Service Rules, 1993 (hereinafter referred to as, ‘the 1993 Rules’). Rule 5 thereof provided, amongst others, sources of recruitment in relation to Group III posts. The said Rule provided that 20% of those shall be filled by promotion from amongst substantively appointed Group ‘D’ employees of the section, who have passed High School Examination from the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto and have completed five years substantive service on their respective posts on the first day of the year of recruitment. 2. Writ petitioners (respondent Nos. 1 and 2 herein) were Group ‘D’ employees of the section, who passed High School Examination from the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government of Uttar Pradesh before 9th November, 2000. On or before 9th November, 2000, they had also served as Group ‘D’ employees of the section for more than five consecutive years. Therefore, as on 9th November, 2000, each of the respondents – writ petitioners had acquired a right to be considered for promotion to 20% of 2 Group III posts, only on the basis of their seniority, subject to rejection of unfit to be ascertained by a selection committee to be constituted in accordance with the Uttar Pradesh Constitution of Departmental Promotion Committee (for posts outside the purview of the service commission) Rules, 1992, as has been provided in Rule 17 of the 1993 Rules. 3. On 9th November, 2000, by carving out a part of the State of Uttar Pradesh, the State of Uttarakhand was created, by and under the Act known as ‘Uttar Pradesh Reorganization Act, 2000’. By reason of the provisions of the said Act, the employees of the State of Uttar Pradesh, including the respondents – writ petitioners, became provincial employees of the State of Uttar Pradesh. By and under the Reorganization Act, the Central Government was authorized to allocate such provincial employees of the State of Uttar Pradesh, including the respondents – writ petitioners, to the State of Uttarakhand. The Central Government allocated the respondents – writ petitioners to the State of Uttarakhand. 4. By virtue of the provisions contained in Section 86 of the Reorganization Act, the 1993 Rules continued to remain in force in the territory of the State of Uttar Pradesh, which became Uttarakhand. The State of Uttarakhand, in exercise of its power granted by Section 87 of the Reorganization Act, adopted the 1993 Rules. In 2007, the State of Uttarakhand effected an amendment to the 1993 Rules as were adopted by it and thereby, brought in a provision requiring Class IV employees to pass a suitability examination for being promoted to Class III posts. Subsequent thereto, in exercise of power conferred by proviso to Article 309 of the Constitution of India and in supersession of the existing rules, namely, the 1993 Rules, as adopted and amended, the State of Uttarakhand made the Uttarakhand Horticulture and Food Processing Subordinate (Group III) Service Rules, 2009 (hereinafter referred to as, ‘the 2009 Rules’) and thereby, also insisted that in order to be promoted to Group III posts, Group ‘D’/IV employees are not only required to pass High School Examination from the Board of Secondary Education Uttarakhand / Uttar Pradesh or any other examination recognized by the Government as equivalent thereto and 3 to complete five years of service, but would also be required to succeed in a written examination to be conducted by departmental selection committee. 5. Subsequent to making of the 2009 Rules, steps were taken to supply 20% vacancies in Group III posts by promoting Group ‘D’ employees. At that stage, a written examination was held and the appellants before us succeeded in the said written examination. They, having had other requisite qualifications, were promoted. Respondents – writ petitioners did not participate in the said examination, instead, they contended that they should be promoted on the basis of the 1993 Rules, i.e., on the basis of seniority alone, subject to rejection of unfit, and that, for the purpose of effecting their promotion, recourse to ascertain their merit through a written examination cannot be taken. That contention of the respondents – writ petitioners having not been accepted, they filed two writ petitions, which have been disposed of by the consolidated judgment and order under appeal, whereby and under, it has been held that the proviso to Section 74 of the Reorganization Act protected the service conditions of the respondents – writ petitioners and the same was purported to be altered without the permission of the Central Government. In consequence thereof, writ petitions have been allowed and the promotions granted to the appellants have been interfered with. However, while doing so, it has not been pronounced that the 2009 Rules or the amendment effected in 2007 in the adopted 1993 Rules are invalid. 6. In support of the appeal, it is being contended that there is a distinction between right to be promoted and chance to be promoted. It was contended that although right to be promoted may be protected by the proviso to Section 74 of the Reorganization Act, but not the mere chance of being promoted. It was contended that in those circumstances, there was no necessity of obtaining the previous approval of the Central Government to amend the 1993 Rules or to make the 2009 Rules. 7. The fact remains that in the case of Mohd. Bhakar Vs. Krishna Reddy, reported in 1970, SLR, 768, the Hon’ble Supreme Court has 4 pronounced that any rule, which affects the promotion of a person, relates to his condition of service. This pronouncement of the Hon’ble Supreme Court has been repeated and accepted by the Hon’ble Supreme Court in many of its judgments rendered subsequent thereto, including in Mohd. Shujat Ali and Others Vs. Union of India and Others, reported in 1975 (3) SCC 76. The distinction between right to be promoted and the chance of promotion may be culled out from the decision of the Hon’ble Supreme Court rendered in Mohd. Bhakar Vs. Krishna Reddy and Mohd. Shujat Ali and Others Vs. Union of India and Others. In the event, by reason of a change in the rule, district wise seniority is changed to State wise seniority and as a result, the chance of a few employees working in a particular district is reduced, as held in State of Mysore Vs. G.B. Purohit and as noted by the Hon’ble Supreme Court in the case of Mohd. Shujat Ali and Others Vs. Union of India and Others, the same would not tantamount to change the right to promotion, but would tantamount to change the chance of promotion. In Mohd. Shujat Ali’s case too the chance of promotion was reduced by altering the quota. In other words, the opportunity to be promoted sunk, whereas in the instant case the method of promotion is altered. 8. In terms of the 1993 Rules, when the respondents – writ petitioners, on being allocated to the State of Uttarakhand, came to serve the State of Uttarakhand, they had acquired a right to be promoted on the basis of their seniority, subject to rejection on the ground of unfit, provided they had served five years in the feeder post and had passed High School Examination. Purporting to insist that in order to be promoted, the respondents – writ petitioners would be required to appear in a written examination, makes it abundantly clear that they have to, at least, pass the said examination and, accordingly, their right to be promoted, simply on the basis of seniority, is substituted by their ability to pass the said examination. The right, therefore, was directly interfered with, which had been protected and in terms of the law made, such interference could only be made upon obtaining previous approval of the Central Government. Learned Chief Standing Counsel has submitted that no such approval has been accorded by the Central Government. 5 9. In consequence thereof, the conclusion would be that neither the 2009 Rules, nor the 2007 amendment effected to the adopted 1993 Rules are applicable to the respondents – writ petitioners, though the same are applicable to all and each, who had been appointed by the State of Uttarakhand on or after 10th November, 2000, in as much as, in the matter of prescribing qualification and other criteria for promoting an employee, employer has the last say. 10. The question is, in the circumstances, what should be done? The appellants, having had accepted whatever was insisted upon them to be achieved, they have done so. They have all the qualifications prescribed in the 1993 Rules and have also successfully appeared in the written examination insisted in the 2009 Rules. Some of them may not be senior to the respondents – writ petitioners, but they were invited to appear in the examination and they have obtained success in the examination. 11. In the circumstances, the best course would be to accept the judgment and order under appeal on the principles as laid down therein and which have been reiterated above, without the conclusion thereof and, accordingly, we strike down that part of the judgment, whereby and under, promotions of the appellants have been cancelled. At the same time, we direct the State Government to consider the case of promotion of the respondents – writ petitioners on the basis of the 1993 Rules, i.e., on the basis of seniority, subject to rejection of unfit. 12. While issuing the said direction, we have proceeded on the basis that there are available posts in which the respondents – writ petitioners may be accommodated. We would request the State Government to constitute a selection committee in terms of the 1993 Rules as quickly as possible, but not later than three months from the date of service of a copy of this order upon respondent No. 4. In the event, the selection committee, in terms of the 1993 Rules, finds that the respondents – writ petitioners are fit to be promoted, let they be promoted giving effect to their promotions notionally 6 from the date the appellants were promoted. The respondents – writ petitioners, however, may be deprived of the actual salary of the promotional post from date of their notional promotion and the actual promotion. 13. This disposes of the appeal. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) 17.11.2011 17.11.2011 Amit