Darshan Singh and Another vs State of Punjab and Others

A.K. Sikri, C.J.—This petition was initially filed by two petitioners. However, petitioner No. 2 had withdrawn the petition and, therefore, it is only qua petitioner No. 1 that the prayers are to be considered. Petitioner No. 1 was appointed as Beldar on regular basis on 1.2.1986. Next promotion is to the post of Mukaddam/Agriculture Sub-Inspector, which was governed by Punjab Subordinate Agriculture Service Rules, 1933 (for short ''Rules of 1933''). As per Rule 7(1)(c) thereof, the eligibility condition prescribed for promotion was that incumbent should be experienced literate Beldar in the inferior service of the department. No specific educational qualification was, otherwise, provided. Twenty per cent quota was prescribed by promotion and 80 per cent posts of Mukaddam/Agriculture Sub-Inspector were to be filled by direct recruitment. These Rules of 1933 have since been repealed by the respondents and in its place Punjab Agriculture Department (Field Office) Group-C Service Rules, 2010 (hereinafter referred to as the "Service Rules, 2010") are promulgated. Rule-5 of these Service Rules, 2010, prescribes minimum qualification of matriculation as well as working experience as Beldar for a minimum period of 10 years, for promotion to the post of Agriculture Sub-Inspector.

Since the petitioner was appointed as Beldar on regular basis on 1.2.1986, he completed 10 years'' period in the year 1996. His case is that he, after completion of this period, had become eligible for consideration. He further submits that at the relevant time, i.e., prior to 2010, the vacancies of Agriculture Sub-Inspector were also available. Dedicated on these facts, his submission is that since the posts were available and as per the old rules he had become eligible to be considered, right for consideration under the old rules had accrued to him and, therefore, in his case, Service Rules, 2010 cannot be made applicable. It is not in dispute that as per Service Rules, 2010, the petitioner is not eligible as he does not possess the qualification of matriculation.

The petitioner has also challenged the vires of Service Rules, 2010 whereby minimum qualification of matriculation has been prescribed.

The challenge is on the ground that when the petitioner was appointed to the post of Beldar, there was no such qualification as per Rules of 1933 Rules and, therefore, new rules cannot be made applicable imposing such a condition which would disqualify the petitioner for further promotion. Insofar as challenge to new rules on the aforesaid ground is concerned, we hardly find any merit therein. Whether the incumbents, who are to be promoted as Mukaddam/Agriculture Sub-Inspector, require such educational qualification as are prescribed in the amended rules or not is the matter within the exclusive domain of the employer and if the employer considers such an educational qualification to be necessary and imperative for promotion to the aforesaid post for discharge of the duties in a more appropriate manner, this kind of amendment cannot be treated as bad in law. It is merely because the petitioner entered the service in the year 1986 would not mean that insofar as he is concerned, the service rules/conditions have to remain static and stagnant for him for all times to come. It is the prerogative of the employer to make rules for promotion and lay down the qualifications therefor. Unless it is shown that such a qualification is arbitrary or violative of Article 14 of the Constitution, the Courts cannot interfere with this function of the employer. It is also trite law that mere chances of promotions are not a condition of service and the rules can always be changed in this behalf.

Coming to the second aspect, namely, as far as petitioner is concerned his case for promotion is to be considered under the Rules of 1933, complete answer to this argument is provided by the recent judgment of the Supreme Court in Deepak Agarwal & Anr. v. State of Uttar Pradesh & Ors., Civil Appeal No. 6587 of 2003, decided on March 31, 2011 (Reported in 2011 Lab IC 1782). In that case the Supreme Court has revisited the entire case law on the subject and concluded that there is no absolute or universal preposition of law that the vacancies arising on a particular date are to be filled invariably by the law existing on that day. The position is explained and summed up by the Apex Court in the following manner:--

All these judgments have been considered by this Court in the case of Rajasthan Public Service Commission Vs. Chanan Ram and Another, In our opinion, the observations made by this Court in paragraphs 14 and 15 of the judgment are a complete answer to the submissions made by Dr. Rajiv Dhawan. In that case, this Court was considering the abolition of the post of Assistant Director (Junior) which was substituted by the post of Marketing Officer. Thus the post of Assistant Director (Junior) was no longer eligible for promotion, as the post of Assistant Director had to be filled by 100% promotion from the post of Marketing Officer. It was, therefore, held that the post had to be filled under the prevailing rules and not the old rules.

In our opinion, the matter is squarely covered by the ratio of the judgment of this Court in the case of Dr. K. Ramulu (1997 Lab IC 1451) (supra). In the aforesaid case, this Court considered all the judgments cited by the learned senior counsel for the appellant and held that Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, would not be applicable in the facts and circumstances of that case. It was observed that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. It was also held that when the Government takes a conscious decision and amends the Rules, the promotions have to be made in accordance with the rules prevalent at the time when the consideration takes place.

The Supreme Court further observed in Para-25 of the aforesaid judgment that if the Government has taken a conscious decision to fill up the vacancies on the application of new rules, then such a decision of the Government cannot be questioned as held in Dr. Ramulu and another, etc. Vs. Dr. S. Suryaprakash Rao and others, and Union of India and others Vs. K.V. Vijesh,

In the present case, we find from the record that a conscious decision was taken by the respondents to fill up the vacancies on the application of the new "Punjab Agriculture Department Group-C Service Rules, 2010" which is clear from communication dated 11.10.2010 (Annexure-P-6) from the Director Agriculture, Punjab, to all the Chief Agriculture Officers in the State of Punjab. We, thus, find no merit in this petition, which is accordingly dismissed.