Inderjit Rekhi vs State of Punjab and Others

Ashok Bhan, J.—A State of Punjab has set up/established different Market Committees within the State of Punjab for the purposes of regulating the purchase, sale, storage and processing of agricultural produce and the said Committees have been made subject to the supervision by the Punjab State Agricultural Marketing Board, respondent No. 2 (hereinafter referred to as the Board), as per the provisions of the Punjab Agricultural Produce Market Act, 1961.

Petitioner was appointed as a Clerk with the Market Committee, Mansa, then in District Bhatinda, in the year, 1977. The case of the petitioner, is that initially the Clerks in the Market Committees were in a higher grade of pay than the Auction Recorders. At one point of time, while making revision in the pay scales w.e.f. 1.1.1978, Auction Recorders were given higher grade of Rs. 450-800 and the Clerks were placed in the grade of Rs. 400-600, which created an anomaly. On reconsideration of the matter, the Board issued a circular No. 221 under endorsement No. Amla-3/22375-631 dated 11.11.1983, whereby it was decided that the Clerks who had joined service before 3.7.1980, shall be kept at par with the Auction Recorders and shall be granted the revised pay scale of Rs. 450-800 equal to the Auction Recorders. As per the policy laid down by the State of Punjab, senior scale of Rs. 510-800 was granted to 50% of the Clerks w.e.f 1.1.1978. This was done vide circular No. 37 issued by the Board under endorsement No. Amla 42669-2799 dated 16.2.1987. As per the said circular, the pay scale of the Auction Recorders of the Market Committee was also enhanced from Rs. 450-800 to Rs. 5 10-800 w.e.f. 1.1.1978 so that the pay scale of the Senior Clerks and that of the Auction Recorders remained equal. Senior Clerks and Auction Recorders of the Market Committee were to enjoy the same scale of pay and common seniority and the senior, among them, was enntitled, to be promoted to the post of Mandi Supervisor cum Fee Collector. Copy of this circular has been attached as Annexure P-4. Promotions to the posts of Mandi Supervisors cum Fee Collectors were being made as per the aforesaid circular, Annexure P-4.

The Punjab Market Committee (Class-III) Service Rules, 1989 (hereinafter referred to as ''the Rules'') were notified for the first time on 27.1.1989, vide notification No. GSR-9/PA-25/61/S 43/89. The Rules were made applicable to all the posts specified in Appendix ''A'' of the said Rules. Rule 8 of the Rules relates to the method of recruitment and qualifications for appointment to the service. Rule 8 of the Rules, reads as under:-

"8. Method of recruitment and qualifications. (1) Subject to the provisions of sub-rule (4), appointments to the service shall be made in the manner specified in Appendix ''B'';

Provided that no person shall be appointed on daily wages or on adhoc basis.

(2) No person shall be appointed to a post in the service unless he possesses the qualifications and experience as specified against that post in Appendix ''B''

Provided that if no suitable candidate is available for appointment by promotion to a post in the service such a post, shall be filled in by transfer.

(3) All appointments by promotion to the service shall be made by selection on the basis of seniority-cum-merit and no person shall be entitled to claim promotion on the basis of seniority alone.

(4) The following percentage of posts in the service shall be reserved for each method of appointment indicated for categories thereunder, namely

(a) by direct appointment:

(i) for members of the Scheduled Castes : 25 per cent.

(ii) for members of the Backward Classes : 5 percent.

(b) by promotion -

(i) for members of the Scheduled Castes : 20 per cent.

(ii) for members of the Backward Classes : 2 per cent.

Provided that reservation in the case of sportsmen, handicapped persons, freedom fighters or for any other category of persons shall also be upto such percentage as may, from time to time, be specified by the Government of Punjab for the corresponding service under it.

(5) No person shall be recruited to any post in the service by direct appointment unless he possesses knowledge of Punjabi language of Matriculation standard or to its equivalent.

Provided that the qualifications for filling a post by direct appointment are less than Matriculation standard the knowledge of Punjabi language shall be lowered accordingly."

As per this Rule, promotion to the posts of Mandi Supervisors cum Fee Collectors is not to be made from amongst the Auction Recorders.

The case of the petitioners is that as per circular, Annexure P-4, Senior Clerks and the Auction Recorders enjoyed the same scales of pay and there was common seniority prior to the coming into force of the Rules, whereas under Ride 8 of the Rules, only Auction Recorders have been made eligible for promotion to the posts of Mandi Supervisors cum Fee Collectors, thereby depriving them of their right for consideration and promotion to the posts of Mandi Supervisors cum Fee Collectors, which amounts to change in the service conditions of the Clerks to their disadvantage; that the Rules, to the extent that they deprive the petitioners/Clerks, who have been employed prior to the coming into force of the Rules in the year, 1989, from their right for consideration and promotion to the posts of Mandi Supervisors cum Fee Collectors, are illegal and unlawful and consequently not enforceable qua them, that the Rules cannot be made applicable retrospectively, thus, depriving the petitioners/Clerks from the benefit of service being enjoyed by them under the old rides and that there was no further avenues of promotion to the petitioners.

Notice of motion was issued, in response to which written statement has been filed.

In the written statement filed, the respondents have admitted that the Clerks had the same pay scales as that of the Auction Recorders and had the common seniority with them prior to the coming into force of the Rules. Under the Rules, the posts of Auction Recorders were made promotion posts, keeping in view the nature of duties of the said post and the qualifications prescribed for them: that nature of the work, responsibilities and duties of the posts of Clerks and of the posts of Auction Recorders are different. The duties for the posts of Auction Recorders and Clerks in terms of Bye Law 24(2) (3) and (4) of the Punjab Market Committees Bye Law 1963, are as under -

"(3) Auction Recorder

To start auction.

To record auction in the register in Form ''H'' of the rules:

To ensure entries in Heap Register or Boli Bahis;

Cross checking of sale purchase returns in form ''M''

Cross checking of gate register with ''M'' returns;

To maintain gate register,

To collect market fee where need be;

To assist Mandi Supervisor in accounts checking;

To maintain account of market fee in Dealer ledger;

To maintain revenue stamp register.

(4) Clerk

Receipt;

Despatch;

Type;

Record keeping;

Maintenance of stamp register;

To assist the Head Clerk-cum-Accountant in matters pertaining to general correspondence and accounts:

Store, Stock and Stationery."

That the Government has sanctioned different grades for the employees of the said cadres. Educational qualifications for the posts of Clerks is Matriculation from the Education Board with at least 50% marks and should pass a test in type writing in Punjabi language at a speed of 30 words per minute whereas the qualifications for the posts of Auction Recorders is Matriculation from the Education Board with at least 50% marks and should have obtained two years diploma in Agriculture of a recognised Institute or should have a B Sc. degree in Agriculture Science of a recognised University. A Clerk, Care Taker and Kandaman is eligible for promotion to the post of Auction Recorders having experience for a minimum period of five years. The posts of Clerks and Auction Recorders have been put in different cadres, there nature of duties, responsibilities and qualifications being different.

In the absence of the Service Rules for governing the service conditions of the employees of the Market Committees in the State of Punjab prior to 27.1.1989, the Board has issued circular letter. Annexure P-4. in which a common seniority was provided for the Clerks and Auction Recorders but the same has been superseded by the Rules and, as such, the petitioners cannot claim any benefit under the superseded circular letter; that condition of service of the Clerks have not been changed and a mere change of promotion cannot be equated with a right to be promoted or even a right to be considered for promotion.

Counsel for the parties have been heard at length and the petition is being disposed of at the motion stage.

Argument of the counsel for the petitioners is that in terms of the circular letter, Annexure P-4, which was in force till the coming into force of the Rules, a Clerk was eligible to be considered for promotion to the post of Mandi Supervisor cum Fee Collector but that eligibility has been taken away by virtue of qualifications incorporated in the Rules; that the right vested in the petitioners to be considered for promotion to the posts of Mandi Supervisors cum Fee Collectors could not be taken away by the rule making authority by introducing new qualifications so as to render them ineligible for promotion to the said posts for all times to come.

Vires of the Rules have not been challenged. Posts of Mandi Supervisor cum Fee Collectors for which the claim is laid, were not available prior to the coming into force of the Rules. In other words, the same have come into existence after coming into force of the Rules. Prior to the coming into force of the Rules the recruitment and promotions to the posts of Mandi Supervisors cum Fee Collectors were made as per circular Annexure P-4 but the said circular did not vest in the petitioners any indefeasible right. While framing statutory rules the authority could prescribe other academic qualifications for appointment by promotion. It has repeatedly been held by the Supreme Court of India as well as by this Court that a chance of promotion cannot be equated with the right to be promoted or with a right to be considered for promotion. Employer has a right to prescribe qualifications for recruitment to various posts, statutory instructions/circulars, an employee have a right to be considered for promotion, but once the said instructions/circulars are amended by framing another set of instructions/circulars or by framing statutory rules, which operate prospectively, then the employee cannot turn round and claim that he has been deprived of his right of promotion under the new rules/instructions and therefore, the subsequent rules/instructions are bad in law. It is an inherent right of an employer to change the qualifications for a particular post. Mere curtailment of chances of promotion would not entail and give rise to an inference that the action taken by the State or its instrumentality suffers from the vice of arbitrariness

In the written statement filed, it has been denied that the Clerks would have no chances of further promotion. It has been stated that the Clerks would have a chance to be promoted as Auction Recorders. Rules framed by the respondents are neither illegal nor unconstitutional as prayed for by the petitioners.

For the reasons stated above this petition is, dismissed with no order as to costs