Delhi High Court

Attar Singh vs Union Of India And Ors. on 3 December, 2014

Author: Kailash Gambhir

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Judgment delivered on: 3rd December, 2014
+       W.P.(C) 2816/2013
        ATTAR SINGH                                          ..... Petitioner
                                 Through    Mr. Ankur Chhibber, Advocate

                                 versus

        UNION OF INDIA AND ORS.               ..... Respondents
                      Through   Dr. Ashwani Bhardwaj, Advocate

                                            AND
+       W.P.(C) 3240/2013
        JASWANT SINGH                                        ..... Petitioner
                     Through                Mr. Ankur Chhibber, Advocate

                                 versus

        UNION OF INDIA AND ORS.                ..... Respondents
                      Through   Mr. Vikas Mahajan, Central
                                Government Standing Counsel
                                with Mr. S.S. Rai & Ms. Ruchika
                                Mahajan, Advocates

        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE NAJMI WAZIRI

                                    JUDGMENT

KAILASH GAMBHIR, J.

1. By these writ petitions filed under Article 226 of the Constitution

of India, the petitioners seek a writ of mandamus to the respondents to

grant promotion to the petitioners to the rank of Sub-Inspector alongwith

seniority and financial benefits from the date their juniors had been

promoted; and (ii) a writ of mandamus to the respondents to grant the

same relief as granted vide order dated 09.11.2010 in W.P.(C) 4112/2010

from the date their juniors had been promoted alongwith arrears of pay

and other consequential and financial benefits.

2. The common grievance raised by the petitioners in these two Writ

Petitions is that they were not detailed to undergo the W.T. (P) Promotional

Course for promotion to the post of Sub-Inspector along with their

batchmates so as to qualify the criteria for promotion to the next rank of

Sub-Inspector before the completion of 47 years of age and this non-

detailing of the petitioners has adversely affected these petitioners apropos

their seniority and promotions to the next rank.

3. Mr. Ankur Chhibber, the learned counsel appearing for these

petitioners submits that it is not on account of any lapse or fault on the

part of these petitioners that they did not undergo the said W.T. (P)

Promotional Course, rather, it was the respondents' lapse and inaction for

not timely detailing these petitioners to undergo the said course. He also

submits that the batchmates of the petitioners who are younger in age

were detailed for the said test in the years 2009 and 2010, but, by that

time the petitioners had become overage. He also submits that both these

petitioners were detailed for the said examination in April, 2011 and this

decision was taken by the respondents keeping in view the directions

given by this Court in a case being W.P.(C) no. 4112/2010, titled as Desh

Raj v. Union of India.

4. The learned counsel further submits that the petitioner in W.P.(C)

3240/2013 had made his representation to the respondents with a request

for detailing him to undergo the said course before his completing 47

years of age, but his request was not acceded to by the respondents.

5. The learned counsel further submits that for their promotion to the

next rank, these petitioners who were Head Constables were required to

complete five years of service in the rank of Head Constable and also

qualify the said promotional courses. He also submits that on 1st April,

2011 pursuant to the recommendations of the 6th Central Pay

Commission, a rank between Head Constable and Sub-Inspector, i.e. ASI

was introduced and both these petitioners were promoted to the rank of

ASI after having completed the requisite promotional courses. He further

submits that the batchmates of the petitioners were promoted to the rank

of Sub-Inspector as they had completed the said promotional course w.e.f

15th June, 2009 to 8th September, 2009, but these petitioners could not be

promoted to the next rank of Sub-Inspector, because by the time they

were detailed for the said examination, they had become overage. He

also submits that had these petitioners been detailed either along with

their batchmates or before the completion of 47 years of age then they

would have been promoted to the next rank of Sub-Inspector, in the year

2010 and so far as the next rank of ASI is concerned, the same was

introduced later i.e. in the year 2011.

6. Dr. Ashwani Bhardwaj, the learned counsel for the respondents in

W.P.(C) 2816/2013 and Mr. Vikas Mahajan, the learned counsel for the

respondents in W.P.(C) 3240/2013 submit that on completion of five

years in the rank of Head Constable the detailment for undergoing the

said course is not automatic and the batches to undergo the said

promotional course are detailed as per their respective seniority. They

further submit that so far as the case of these petitioners is concerned they

could only be detailed along with their batchmates and no priority could

be given to these petitioners by culling out these petitioners from their

batchmates. They submit that it is a sheer coincidence that when these

petitioners reached the stage of consideration for undergoing the said

courses along with their batchmates, they had become overage. They

further submit that it is not a lapse or fault on the part of the respondents

that they did not detail these petitioners to undergoing the said course

prior to their completing 47 years of age. They also submit that on 15th

September, 2010, the policy itself was changed and promotional courses

were merged into one course and the age criteria was also done away

with and it is thereafter that these petitioners were detailed to undergo the

said examination and on having qualified the said exam, both these

petitioners got their promotions to the next rank of ASI, as by that time

the rank of ASI was introduced.

7. We have heard the learned counsel for the parties at a considerable

length and have given our thoughtful consideration to the arguments

advanced by them.

8. The grievance raised by these petitioners is that they were fully

eligible to be promoted to the next higher rank of Sub-Inspector after

having completed five years of service on the post of Head Constable, but

were denied promotion to the said rank because they were not detailed for

undertaking the W.T.(P) Promotional Course before becoming overage

on the completion of 47 years of age.

9. The two fold contentions raised by the learned counsel for the

petitioners was that it was incumbent upon the respondents to have

detailed the petitioners for the said mandatory course, well before the

petitioners completed 47 years of age and having not done so the

petitioners cannot be deprived of their right to promotion to the said rank

of Sub-Inspector, whereas their juniors got promoted, simply because age

was on their side. Another contention raised by the learned counsel for

the petitioners was that the case of these petitioners is squarely covered

by an order dated 09.11.2010, of the Division Bench of this Court in the

case of Desh Raj v. Union of India & Ors. (supra).

10. In P.U. Joshi v. Accountant General, Ahmedabad & Ors.,

reported in (2003) 2 SCC 632, the Honble'Supreme Court held that the

question relating to constitution, pattern, nomenclature of posts, cadres,

categories, their creation/abolition, prescription of qualifications and

other conditions of service including avenues of promotions and criteria

to be fulfilled for such promotions pertain to the field of policy and the

same is within the exclusive discretion and jurisdiction of the State,

subject, of course, to the limitations or restrictions envisaged in the

Constitution of India and it is not for the statutory tribunal, at any rate, to

direct the Government to have a particular method of recruitment or

eligibility criteria or avenues of promotion or impose itself by substituting

its views for that of the State. Similarly, it is well open and within the

competency of the State to change the rules relating to a service and alter

or amend and vary by addition/subtraction the qualifications, eligibility

criteria and other conditions of service including avenues of promotion,

from time to time, as the administrative exigencies may need or

necessitate. Likewise, the State by appropriate rules is entitled to

amalgamate departments or bifurcate departments into more and

constitute different categories of posts or cadres by undertaking further

classification, bifurcation or amalgamation as well as reconstitute and

restructure the pattern and cadres/categories of service, as may be

required from time to time by abolishing existing cadres/posts and

creating new cadres/posts. There is no right in any employee of the State

to claim that rules governing conditions of his service should be forever

the same as the one when he entered service for all purposes and except

for ensuring or safeguarding rights or benefits already earned, acquired or

accrued at a particular point of time, a Government servant has no right to

challenge the authority of the State to amend, alter and bring into force

new rules relating to even an existing service. The relevant paras of the

said judgment are reproduced as under:

"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.

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13. The plea based on the denial of equal opportunity and equal protection of laws has rightly been rejected in the light of the principles laid down by this Court in the decisions noticed by the Bench of the Tribunal, which rendered the decision in respect of the appellants, who serve in the State of Gujarat. Likewise, it was impermissible for the Bench of the Tribunal at Cuttack to have further directed to give the promotional monetary benefits and other benefits flowing from such promotion when they will not be entitled to any such relief under the statutory rules, which the Tribunal itself could not, on its own, either bypass or alter or give a go-by too or direct the department to ignore and contravene."

11. The petitioners herein have not challenged the promotional policy

of the respondents wherein the persons after reaching the age of 47 years

were made ineligible to undertake the said mandatory W.T.(P)

Promotional Course to become eligible for promotion to the next higher

rank of Sub-Inspector. Undoubtedly, the said embargo was lifted in the

subsequent policy of the respondents and due to which the petitioners

could undertake to qualify the said course and ultimately got promoted to

the next higher rank of Assistant Sub-Inspector.

12. It is a settled legal position that there is no vested right which can

be claimed by any employee for promotion to the next higher rank and

the right even to be considered for promotion to the next higher rank has

to be in terms of the applicable policy and guidelines laid down by the