ST A TE OF JAMMU AND KASHMIR A v.

SHIV RAM SHARMA AND OTHERS

MARCH 30, 1999

(S. SAGHIR AHMAD ANDS. RAJENDRA BABU, JJ.] B

Service Law-Conditions of Service-Stagnation-Allegation that requirement of passing ; matriculation was not there at the time of joining service-Requirement has been made to the detriment of such persons while in service-Avenue for promotion blocked-Held, the principle of avoiding C stagnation in a particular post will not be with reference to a particular individual employee but with respect to the conditions of service as such- Jammu Kashmir Geology and Mining (Subordinate) Service Recruitment Rules, 1990.

Respondent Nos. 1 and 2 were initially appointed as Rigman, later designate<! as Drill Operator, Grade II, in 1967 and were further promoted in 1983 to the post of Drill Operator, Grade I. Respondent Nos. 3, 4 and 5 were initially appointed as Drill Operator, Grade II in 1984. It was noticed

by the Government that in higher promotfonal posts the incubents had to shoulder higher responsibilities for which qualification of Matriculation was E considered necessary. Consequently, the Government promulgated Rules know as 'Jammu & Kashmir Geology and Mining (Subordinate) Service Recruitment Rules, 1990. Under these Rules, for promotion to the post of Drilling Assistant the minimum basic qualification prescribed was matriculation with ve years service as Drill Operator, Grade II Boring Mistry, Grade I; and for promotion to the post of Boring Mistry, Grade II F Drill Operator, Grade I, the minimum basic qualification prescribed was matriculation with seven years service as Boaring Mistry, Garade II or Drill Operator, Grade II. The respondents did not possess the qualification of matriculation and therefore, were not promoted to higher grades.

Respondents filed writ petitions seeking quashing of the Rules to the G extent they related to qualification bar in Class - A categories I & II and for further direction to fill up the posts on the basis of seniority irrespective of qualifications. Single Judge allowed the writ petitions on the ground that insistence on matriculation qualificatinn for promotion to a higher post was illogical and for such posts service experience should be the sole criteria. H 251

A Aggrieved by the Judgement of the Single Judge, the appellant - State filed appeal before the Division Bench. The Division Bench dismissed the appeal holding that the respondents were facing complete stagnation not because of absence of promotional avenues but because of the requirement 'or matriculation qualification and it was observed that the Rules have to be B amended suitably to avoid stagnation by adverting to the decision in T.R.

Kothanandraman & Ors v. Tamil Nadu Water Supply & Drainage Baord & Ors., [1994) 6 SCC 282. Against the Judgment of the Division Bench, the appellants have filed the present appeal.

The appellant - State contended that the High Court had noticed that C promotional avenue was available subject to certain conditions; and that it was not a case where the Rules _did not permit promotional opportuities at all and th_e hardship resulting to one or two individual employees should not have been taken note as a general standard to give the impugned directions as given by the High Court.

D The respondents contended that the promotional opportunity under the Rules was only a mirage as the qualifications prescribed therein were impossible offulfilment by the respondents; that when the respondents joined service the requirement of passing matriculation was not needed and while they were in service such prescription has been litade to their detriment, and the High Court has only directed to relax the relevant Rules which would E benefit the respondents; and that in one case the benefit was extended in relaxation of the Rules.

Allowing the Appeal, the Court

. HELD : 1. The law is well settled that it is permissible for the F Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. It is clear that there is no indefeasible right in the respondents to claim promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those rules framed by the Government in that behalf would always be favourable G to them. Once appointed an employee has no vested right in regard to the terms of service but acquires a status and therefore, the rights and obligations thereto are no longer determined by consent of parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. The High Court has also noticed that there was an avenue provided for promotion but the prescription was not favourable to respondents.

H The principle of avoiding stagnation in a particular post will not be with

STfi.TE v. SHIV RAM SHARMA [RAJENDRA BABU, J.] 253

reference to a particular individual employee but with reference to the A conditions of service as such. The Rules provide for conditions of service making an avenue for promotion to higher grades. (255-E-H)

Roshan Lal Tandon v. U.0.1., (1968) 1 SCR 185, relied on.

T.R Kothandaraman & Others v. Tamil Nadu Water Supply & Drainage B Board & Others, (1994) 6 SCC 282, held inapplicable.

2. The promotion of another employee in relaxation of the Rules stood altogether on a different footing as it was done prior to the coming into force of the Rules. Hence on the basis of that promotion no direction could be issued in favour of the respondents. [256-B-C) C

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 904 of 1999.

From the Judgment and Order dated 10.4.98 of the Jammu & Kashmir High Court in L.P. A. No. 525of1998.

Ashok Mathur for te Appellant.

Jagdev Singh Manhas for the Respondents.

The Judgment of the Court was delivered by E

RAJENDRA BABU, J. Leave granted.

Respondents filed writ petitions in.the High Court of Jammu & Kashmir seeking quashing of the Rules published vide notification No. SRO : 328 dated November 22, 1992 to the extent it related to qualification bar in Class- F A categories I & II and for further direction to fi!l up the posts on the basis of seniority irrespective of qualifications. Respondent Nos. l and 2 were initially appointed as Rig-man in the months of March, 1967 and November, 1967 respectively. Respondent Nos. 3, 4 and 5 were initially appointed as Boring Mistry, Grade II in February, 1984, July, 1984 and January, 1984 G respectively. Respondent Nos. I and 2 were promoted in the month of February, 1983 from the post of Rig-man which was later on re-designated as Boring- Mistry, Grade I and again re-designated as Drill Operator, Grade I in the year

1990. Respondent Nos. 3,4 and 5 were working on the post of Drill Operator, Orade i1. On November 22, 1990 Rules were promulgated under Section 124 of the Constitution of Jammu and Kashmir styled as "Jammu & Kashmir H

A Geology and Mining (Subordinate) Service Recruitment Rules, 1990". The

Rules were to come into force from the date of their publication itl the 1 Government Gazette, which, it is said, was done on November 22, 1990. Under these Rules, the requisite qualification for promotion of a Drilling Assistant was prescribed as matriculation with five years service as Boring Mistry, B Grade I or Drill Operator, Grade I. For promotion to the post of Boring Mistry, Grade I/Drill Operator, Grade I, the minimum basic qualification prescribed was matriculation with seven years service as Boring Mistry, Grade II or Drill Operator, Grade II.

Recruitment to the post of Rig-man, that is, Drill Operator, Grade II and C Assistant Drilling (Now Drilling Assistant) were made partly by appointment from state subjects whose academic qualification was matriculation and above and partly on contract basis from non-state subjects possessing vast experience in drilling but without necessary academic qualification. The services of these persons appointed on contract basis was subsequently regularised by a Government order with all benefits of promotion, pension, etc. It was D noticed that in the higher promotional posts the incumbents had to shoulder higher responsibilities, such as, maintaining log books, keepin_g records of inventories and do other technical and administrative tasks for which qualification of matriculation was considered necessary. None of the respondents possessed the qualification of matriculation. Therefore, they E could not be promoted to higher grades. The High Court took the view that when respondent Nos. 1 and 2 had been promoted last in the year 1983 insistence on matriculation qualification for promotion to a higher post was illogical and for such posts service experience should be the sole criteria. On that basis1 the learned Single Judge allowed the writ petitions. The Division

F Bench, to which the appeal was preferred, also took the similar view and it was stated that the respondents were promoted in the year 1983 and therefore, they are facing complete stagnation not because of absence of promotional avenues but because of the requirement of matriculation qualification. By the time they reach that stage they would be at the fag end of their career and insistence on the passing of the matriculation would be fatal as it is impossible G for them to take such an examination now and it was observed that the Rules have to be amended suitably to avoid stagnation and adverted to the decision of this Court in T.R. Kothandaraman & Ors. v. Tamil Nadu Water Supply & Drainage Board & Ors., [1994] 6 SCC 282.

The learned counsel for the appellants submitted that the High Court H could not have directed amendments of the Rules particularly when it had

.I.

STATE v. SHIV RAM SHARMA[RAJENDRA BABU, J.] 255

noticed that the promotional avenue from one grade to another was available A subject to certain conditions, such as, fulfilment of qualifications and experience.

It is not a case where the Rules did not permit promotional opportunities at all to higher grade from lower grade and the hardship resulting to one or two individual employees should not be taken note as a general standard to give the impugned directions and, therefore, the learned counsel submitted that B the view of the High Court is not justified at all.

The learned counsel for the respondents vehemently contended that the promotional opportunity under the Rules is only a mirage by reason of the qualifications prescribed thereto which are impossible of fulfilment by the respondents. When the respondents joined the service long before these C Rules were promulgated there was no pr¢cription of qualification of matriculation for promotion and sole avenue for promotion is deprived of by reason of prescription of such qualification. He, therefore, submitted that relaxation in the Rules is required and all that the High Court has directed to relax the relevant rules which would result in benefit to the respondents and, therefore, no interference is called for. He also pointed out that in case D of one J.R. Sharma the benefit had been extended to him in relaxation of the Rules.

The law is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion E to different posts. The case put forth on behalf of the respondents is that when they joined the service the requirement of passing the matriculation was not needed and while they are in service such prescription has been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to a higher erade to which qualification could be prescribed and there is no guarantee that those rules framed by the F Government in that behalf would always be favourable to them. In Roshan Lal Tandon v. Union of India, [1968] 1 SCR 185, it was held by this Court that once appointed an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by consent of parties, but by statute or G statutory rules which may be framed and altered unilaterally by the Government. The High Court has also noticed that there was an avenue provided for promotion but the prescription of the qualification was not favourable to respondents. The principle of avoiding stagnation in a particular post will not be with reference to a particular individual employee but with reference to the conditions of service as such. As long as rules provide for conditions of H

A service making an avenue for promotion to higher grades the observations made in T.RKothandaraman's case [supra] stand fulfilled. In that view of the matter, we do not think the High Court was justified in allowing the writ petitions filed by the respondents.

The case of J.R.Sharma stood altogether on a different footing who B was appointed in the year 1962 and he was promoted to higher grades with effect from 1989, that is, prior to the coming into force of the Rules. In that view of the matter, we do not think that that case could be taken note of in giving any directions in favour of the respondents.

In the result, we allow this appeal and set aside the order made by the C High Court affirming the order made by the learned Single Judge and dismiss. the writ petitions filed by the respondents. No order as to.costs.

A.K.T Appeal allowed.

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