Dr. Kailash Narayan Mewafarosh vs State Of Madhya Pradesh And Another

S.N.,"Name of the Post from

which

Promotion is to be

made","Name of the Post

which Promotion is

to be made","Minimum

service/

Experience in

the post of

column (2) for

the

promotion to

the post in

column (3)","Member of

Departmen

tal

Promotion

Committee

(1),(2),(3),(4),(5)

10,"Assistant Director

Ayurved/Ayurved

Medical Officer/

R.M.O. Ayurved/

Female Ayurved

Medical Officer/

AYUSH Doctor

(Ayurved)","District AYUSH

Officer

/Superintendent

Ayurved

Hospital

/Principal. Govt.

Female Ayurved

Health Worker

Training Center/

Specialist

Ayurved/Drug

Inspector","5 Years. In

addition to it

post graduate

degree in any

clinical subject

o f Ayurved

recognized by

C.C.I.M. for

specialist

Ayurved and

Post

Graduate

Degree in

Kaya Chikitsa","1-

M.P.P.S.C.

Chairman/

MemberChairman

2.

Principal

Secretary/

Secretary

AYUSHMember

3.

Director-

AYUSHMember

,,,"Dravyaguna

orÂ

Rasashastra

& Bhaishajya

Kalpana

recognized by

C.C.I.M. for

Drug

Inspector

(Ayur. &

Unani) or

qualification as

per Drugs &

Cosmetics Act

1940 and

prescribe

qualification in

rule 162 of rules

1945",

accordingly not attracted and the Rules of July 30, 1959 cannot be assailed as invalid on ground of non-compliance with that proviso.",,,,

(6) In “Mohammed Shujat Ali and others Vs. Union of India and others [(1975) 3 SCC,,,,

76]â€​, it is held:",,,,

“15. ......It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of,,,,

service. This proposition can no longer be disputed in view of several pronouncements of this Court on the point and particularly the decision in,,,,

Mohammed Bhakar v. Y. Krishna Reddy [1970 SLR 768] where this Court, speaking through Mitter, J., said : ""Any rule which affects the promotion",,,,

of a person relates to his condition of service."" But when we speak of a right to be considered for promotion, we must not confuse it with mere",,,,

chance of promotion the latter would certainly not be a, condition of service. This Court pointed out in State of Mysore v. G. B. Purohit [C.A.",,,,

No.2281 of 1965, dec. on January 25, 1967] that though a right to be considered for promotion is a condition of service, mere chances of promotion",,,,

are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. What happened in State of Mysore,,,,

v. G. B. Purohit (supra) was that the districtwise seniority of Sanitary Inspectors was changed to Statewise seniority and as a result of this change,",,,,

the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under",,,,

the proviso to Section 115, sub-section (7). This contention was negatived and Wanchoo, J., as he then was, speaking on behalf of this Court observed:",,,,

“It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their,,,,

disadvantage. We see no force in this argument because chances of promotion are not conditions of service."" Now, here in the present case, all that",,,,

happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of,,,,

Assistant Engineers available to nongraduate Supervisors from the erstwhile Hyderabad State for promotion, was reduced : originally it was fifty",,,,

percent, then it became thirty-three and one third per cent, then one in eighteen and ultimately one in twenty-four. The right to be considered for",,,,

promotion was not affected but the chances of promotion were severely reduced. This did not constitute variation in the condition of service applicable,,,,

immediately prior to November 1, 1956 and the proviso to Section 115, sub-section (7) was not attracted. This view is completely supported by the",,,,

decision, of a Constitution Bench of this Court in Ramchandra Shankar Deodhar & Ors. v. The State of Maharashtra [(1974) 1 SCC",,,,

317].â€​,,,,

(7) In “State of Maharashtra and another Vs. Chandrakant Anant Kulkarni and others [(1981) 4 SCC 130]â€​, it is held:",,,,

“16. Mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount,,,,

to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not.â€​",,,,

(8) In “Reserve Bank of India and others,,,,

Vs. C.N. Sahasranaman and others [1986,,,,

Supp SCC 143]â€​, it is held:",,,,

“39. This Court had also observed that the right of promotion should not be confused with mere chance of promotion. Though the right to be,,,,

considered for promotion was a condition of service, mere chances of promotion were not. See Mohd. Shujat Ali v. Union of India, [1975 1",,,,

S.C.R.449].,,,,

See also in this connection the observations in R.S. Deodhar v. State of Maharashtra [(1974) 2 SCR 216] at p. 230 of the Reports: (SCC p. 329) and,,,,

Reserve Bank of India v. C.T. Dighe,",,,,

[1982 1 S.C.R. 107], 121-122.â€​",,,,

(9) In “Paluru Ramkrishnaiah and others,,,,

Vs. Union of India and Another [(1989) 2 SCC 541]â€​, it is held:",,,,

“12. In the case of Ramchandra Shankar Deodhar the petitioners and other allocated Tehsildars from ex-Hyderabad State had under the,,,,

Notification of the Raj Pramukh dated September 15, 1955 all the vacancies in the posts of Deputy Collector in the ex-Hyderabad State available to",,,,

them for promotion but under subsequent rules of July 30, 1959 fifty per cent of the vacancies were to be filled by direct recruitment and only the",,,,

remaining fifty per cent were available for promotion and that too on divisional basis. The effect of this change obviously was that now only fifty per,,,,

cent vacancies in the post of Deputy Collector being available in place of all the vacancies it was to take almost double the time for many other,,,,

allocated Tehsildars to get promoted as Deputy Collectors. In other words it resulted in delayed chance of promotion. It was, inter alia, urged on",,,,

behalf of the petitioners that the situation brought about by the rules of July 30, 1959 constituted variation to their prejudice in the conditions of service",,,,

applicable to them immediately prior to the reorganisation of the State and the rules were consequently invalid. While repelling this submission the,,,,

Constitution Bench held: (SCC p. 329, para 15)",,,,

All that happened as a result of making promotions to the posts of Deputy Collectors divisionwise and limiting such promotions to 50 per cent ofÂ",,,,

the total number of vacancies in the posts of Deputy Collector was to reduce the chances of promotion available to the petitioners. It is now well,,,,

settled by the decision of this Court in State of Mysore v. G.B. Purohit that though a right to be considered for promotion is a condition of service,",,,,

mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. In,,,,

Purohit case the districtwise seniority of sanitary inspectors was changed to Statewise seniority, and as a result of this change the respondents went",,,,

down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section",,,,

115, sub-section (7). This contention was negatived and Wanchoo, J., (as he then was), speaking on behalf of this Court observed: ""It is said on behalf",,,,

of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage.,,,,

We see no force in this argument because chances of promotion are not conditions of service."" It is, therefore, clear that neither the Rules of July 30,",,,,

1959, nor the procedure for making promotions to the posts of Deputy Collector divisionwise varies the conditions of service of the petitioners to their",,,,

disadvantage.""",,,,

(10) In “Union of India and others Vs. Colonel G.S. Grewal [(2014) 7 SCC 303]â€​, it is held that:",,,,

“28. .......Insofar as future chances of promotions are concerned, no vested right accrues as chance of promotion is not a condition of service.â€​",,,,

(11) In view whereof, the Entry No.10 of",,,,

Schedule IV of the Rules of 2013 cannot be faulted with merely because the promotional entitlement of the petitioner is taken away.,,,,

(12) Even otherwise the Rules of 2013 combine three cadres under one service, viz. Madhya Pradesh Ayush Department (Gazette) Service which",,,,

further provides for channel of promotion in respective cadres. Thus, as per Rule 13 and 14 of the Rules read with Schedule IV an Asst.",,,,

Homoeopathy Medical Officer is promoted as,,,,

Homoeopathy Medical Officer. A Homoeopathy Medical Officer is promoted as Astt. Superintendent Homoeopathy Hospital/Senior Homoeopathy,,,,

Medical Officer/Specialist,,,,

Homoeopathy who are then promoted as Deputy Director Homoeopathy/Superintendent Homoeopathy Hospital. The Deputy Director,,,,

Homoeopathy/Superintendent Homoeopathy hospital are then promoted as Joint Director. Similar channel of promotion is provided to the Medical,,,,

Officers (Ayurved) and Medical Officers (Unani) respectively. Thus, there is no violation of principle of equality guaranteed under Article 14 and 16",,,,

of the Constitution. For these reasons also, we perceive no illegality in earmarking a post of promotion in particular stream when similar channel is",,,,

provided in other stream.,,,,

(13) In view whereof, since the Entry No.10 of Schedule IV does not violate the right of the petitioner guaranteed under Article 14 and 16 of the",,,,

Constitution, we perceive no justification in the relief that the Entry No.10 of Schedule IV be replaced by Entry No.1 of Schedule III which deals with",,,,

direct appointment.,,,,

(14) Consequently, petition fails and is dismissed. No cost.",,,,

,,,,

Petitioner, Medical Officer (Homoeopathy) in the department Ayush, State of Madhya",,,,

Pradesh, calls in question the validity of Entry No.10 of Schedule IV of Ayush Department (Gazetted) Services Recruitment Rules, 2013 (hereinafter",,,,

referred to as “Rules of 2013â€​).,,,,

(2) These Rules of 2013 are made by the Governor of Madhya Pradesh in exercise of his powers conferred by proviso to Article 309 of the,,,,

Constitution of India vide Notification No.F-0199-2009-LIX-Ayush, dated 19.08.2013, published in Madhya Pradesh Gazette (Extraordinary), dated",,,,

19.08.2013 by superseding the Public Health (Indian System of Medicine & Homoeopathy) Gazetted Service Recruitment Rules, 1987. Rule 5",,,,

whereof provides for the classification of the service, the number of posts included in the service and the scale of pay attached thereto as contained in",,,,

Schedule I. The methods of recruitment as per Rule 6 is by direct recruitment through competitive examination; by promotion of the member of the,,,,

service included in column (2) of Schedule IV; by transfer of persons who hold in a substantive capacity such posts in such services, as may be",,,,

specified. That,,,,

Rules 11 and 13 of the Rules of 2013 respectively provide for direct recruitment by competitive examination and appointment by promotion.Â,,,,

(3) Presently as the issue relates to Entry No.10 of Schedule IV, it stipulates:",,,,

SCHEDULE -IV,,,,

(See Rule 13 & 14),,,,