Si (Cm) D.C. Tiwari & Ors. vs Uoi & Ors.
2013 Latest Caselaw 1269 Del

$~2
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                               Decided on : 14th March, 2013.


+                         W.P.(C) 6583/2000


         SI(CM) D.C.TIWARI & ORS.                            ..... Petitioner
                               Through    Mr. N.L. Bareja, Advocate

                               versus

         UOI & ORS.                                        ..... Respondent

Through Ms. Mansi Gupta, Advocate for Ms. Archana Gaur, Advocate

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

S. RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioners, who were recruited and were serving with Indian

Tibetan Border Police Force (hereinafter referred to as ITBPF) at the

relevant time, are challenging the Recruitment Rules of 1999 and Standing

Order No. 10/2000 dated 27th July, 2000 issued by the respondents on the

ground that it has adversely affected the service conditions, especially

chances of promotion.

2. Relevant facts for the purpose of this judgment are that the petitioners

joined the ITBPF sometimes in 1970s. ITBPF was earlier a unit of Central

Reserve Police Force (CRPF) and governed by the terms of its enactment.

The separate enactment, the Indo Tibetan Police Force Act was brought

into force in 1992 and the Rules including Rules of Recruitment were

framed in 1994. The petitioners, as mentioned earlier, have been recruited to

the ITBPF prior to coming into force of that enactment. In terms of the

enactment and the Rules they were considered existing employees and

assimilated in terms of the Rules as a part of the Force. The petitioners

mentioned that certain service conditions had been formulated in 1984 and

1987 which had modified the existing system of promotion to higher ranks

such as Head Constable and Sub-Inspector (CM). In terms of these Rules, to

qualify for promotion to the post of Head Constable, Departmental Test „C‟

should have been successfully cleared. Likewise for the post of Sub-

Inspector (CM), the incumbent in the feeder cadre had to clear Departmental

test "D". It is stated that in terms of the pre existing Rules, promotion to the

post of SI (CM) was on the basis of seniority-cum-fitness. The petitioners

mentioned about the fact that being unreserved category employees, they

had to serve longer spells of service in the feeder cadre as compared with the

reserved category candidates who used to normally secure accelerated

promotion on account of abundance of vacancies in the higher cadre.

Nevertheless, the criteria of seniority-cum-fitness was perceived as

operating to the best satisfaction of the concerned employees in the SI (CM)

cadre.

3. The petitioners argue that pursuant to the recommendations of the 5th

Pay Commission made effective sometime in 1997, the order dated

10.10.1997 the pay scale of various cadres in the Central Police

Organisations under the command and control of Ministry of Home Affairs

were streamlined. By virtue of this order, the rank of L/Nk and Naiks were

removed w.e.f.10.10.1997. Consequent rationalization in the pay scale and

rank structure, was undertaken aligning certain conditions within other

police organizations which were declared as armed forces of the union i.e.,

BSF, CRPF and CISF.

4. In this background, the petitioners submit that on 31st July, 1999, the

ITBPF revised the Recruitment Rules, and subsequently issued the

impugned Standing Order No. 10/2000. In short, the petitioners‟ grievance

with this subsequent development is that it altered their promotional

chances. The existing criteria of seniority-cum-fitness for governing

promotion to the post of Sub-Inspector (CM) was substituted with the

requirement of incumbents in the feeder cadre having to qualify in a

departmental test, titled as Departmental Test-"E".

5. Mr. Bareja argues that the imposition of new rules and applicability of

standing order 10/2000 has adversely affected chances of promotion of the

petitioners. He submits that they had a legitimate right to expect to be

governed by the rules and service conditions which were in existence at the

time when they joined the Force. If that had been operated and their career

progression were continued in accordance with such existing rules, there

would have been no complaint and grievance. Instead, by directing the

petitioners and others desirous of promotion to the rank of Inspector (CM) to

qualify in a departmental test, the respondent injected uncertainty. Learned

counsel highlighted the fact that the petitioners at the time of the

introduction of the new regime, had spent considerable period in the force-

15-20 years, and could not obviously be expected to compete with the new

entrants whose academic skills were sharper. It was submitted that,

therefore, the Recruitment Rules to the extent they substituted the pre

existing criteria of seniority cum fitness, are arbitrary and unreasonable and

are liable to be quashed.

6. This court has considered the submissions of the petitioners. At the

outset, there is no dispute about the fact that the petitioners are members of

the Force and are therefore governed by the terms of employment which are

now embodied in Rules. Even otherwise, as public servants the terms of

engagement or employment are not mere matters of contract. As held by

the Supreme Court in its judgment reported as Roshan Lal Tandon Vs.

Union of India, AIR 1967 SC 1889 a public servant has no vested or

contractual right in regard to the terms of his service; the legal position of a

Government servant is more of status than contract, and once appointed to

the post or office, a Government servant acquires a status. His rights and

obligations are no longer determined by consent of both parties, but by

statute or statutory rules which may be framed and altered unilaterally by the

Government.

7. The judgment in B.S. Vadera Vs. UOI & Ors., AIR 1969 SC 118 is

also to the same effect. Later judgments too have consistently held that

Rules can even be made retrospectively provided they do not take away or

impair vested rights of the employee or public servant.

8. All these aspects were considered by yet another Constitution Bench

in Chairma, Railway Board and Ors. Vs. C.R. Rangadhamaiah & Ors.,

AIR 1997 SC 3828. The Court has reiterated the position and applied the

Rule in Roshan Lal Tandon holding that "the relationship between the

Government and its servants is not like an ordinary contract of service

between a master and servant, but is something in the nature of status. It is

urged that once appointed to a post or office, the Government servant

acquires a status and his rights and obligations are no longer determined by

consent of both parties, but by statute or statutory rules which may be

framed and altered unilaterally by Government and the Government servant

has no vested right in regard to the terms of his service."

9. From the above, it follows therefore, that the introduction of a

different standard to govern promotions; or the unilateral expression of the

Government desiring to change the conditions of service, of the members of

the Force, (governed by the terms of 1992 Act and the Rules framed there

under) cannot be ipso facto, impeached.

10. From another perspective unless such a statutory policy is shown

manifestly arbitrary or unreasonable, the Court would be circumspect in

exercising its discretion and substituting its opinion. The petitioners have

not shown how continued existence of their service conditions was in the

nature of a vested right that could not have been altered to their

disadvantage. Several authorities in the form of judgments of the Supreme

court have upheld Rules that have changed condition of service including

promotion rules. Having regard to these, the court is of the opinion that the

challenge made out by the petitioners does not merit consideration. In any

event, the nature of the changes brought about by the impugned rules are not

fundamentally unfair or so manifestly arbitrary as to warrant interference

under Article 226 of the Constitution of India.

11. In the light of the above discussion, this court is of the opinion that no

relief can be granted in these proceedings.

12. Rule discharged.

13. Petition is dismissed.

S. RAVINDRA BHAT, J

SUDERSHAN KUMAR MISRA, J MARCH 14, 2013 rs