Mohinder Kour and Others vs State and Others

Hasnain Massodi, J.—The Petitioners were appointed as Laboratory Bearers under Jammu and Kashmir Educational (Subordinate) Service

Recruitment Rules, 1979 (hereinafter referred to as 1979 Rules), in various schools of District Rajouri, during the period 1993-2002. The 1979

Rules identified Laboratory Bearers as one of the sources of promotion to the post of Laboratory Assistant in the grade of Rs. 200-320. The

relevant part of the Rules may be extracted as under:

ClassCategory DesignationMinimum Method of

With gradequalification Recruitment

for direct

recruitment

V Lab Asst Matriculation75 % by direct

(200-320) with Sciencerecruitment

experience as such.

A final seniority list of the Library Bearers was prepared, and the Petitioners figured at Serial Nos. 3, 8, 10 and 47 in the seniority list. The Rules

of 1979 were replaced by Jammu and Kashmir School Education (Subordinate) Recruitment Rules, 2008 (for short 2008 Rules) notified vide

SRO 308. The new Recruitment Rules i.e. 2008 Rules, while enhancing the promotional quota from 25% to 50%, added new sources of

promotion to the post of Laboratory Assistant. It would be advantageous to reproduce herein relevant part of Schedule - II (A), prescribing

method of recruitment and minimum qualification for appointment to the post of Laboratory Assistant and Laboratory Bearers:

ClassCategory Designation Minimum Method of

With grade qualificationRecruitment

for direct

recruitment

IV A

................

B Lab Asst 10+2 with 50 % by direct

(200-320) Board recruitment 50% by

promotion from VII

of Schedule II-A

having Matriculation

qualification with 3

Yrs substantive

service in that class.

VIII Orderlies Peons, Minimum 50 % by direct

(2550- Chowkidars Matric recruitment 50 % by

3200) Book maximum selection from

Keepers, Lab 10+2 Middle Pass

Bearers, contingent/Local fund

Attendants, paid employees by a

Mallies Committee duly

Gardeners, constituted for the

Ground purpose by the

Coolies, concerned Director

Waterman School Education.

Chainmen.

Farmhands,

Animal

Keepers,

Gasman

Farashes,

Packers

Conductors

and

Safaiwallas

A bare look on the 2008 Rules reveals that in addition to Lab Bearers other Class VIII employees in the pay scale of Rs. 2550-3200 are made

eligible to promotion as Lab Assistant with three years substantive service in Class VIII. The Petitioners contend that though the 2008 Rules

enhanced the promotional quota by 25%, yet the Rules by including other categories of Class VIII service diminish the promotional quotas of

Laboratory Bearers. It is pointed out that under 1979 Rules Laboratory Bearers constituted exclusive source for promotion to the post of

Laboratory Assistants. The Petitioners without disputing the right of the Respondents to amend, modify and re-frame recruitment rules insist that

the posts of Laboratory Assistants available and vacant on 15th October, 2008 i.e. before the 2008 Rules came into force are to be filled up in

accordance with 1979 Rules. It is pleaded that 81 posts of Laboratory Assistants were vacant and unfilled on the date the 2008 Rules came into

force and that these posts are to be filled up in accordance with 1979 Rules, treating the Laboratory Bearers as exclusive source against the

promotional quota out of the available vacant vacancies of Laboratory Assistants. The Petitioners on the strength of averments made in the petition,

seek following reliefs:

a) A writ of Mandamus commanding Respondents to consider and promote Petitioners herein as Laboratory Assistants on the basis of their

seniority and merit, as is reflected in seniority list Annexure A to the writ petition.

b) A writ of Certiorari quashing SRO 308 dated 16.10.2008 so far as it clubs under Class VIII of Schedule II (a) categories other than Lab.

Bearers making them a source for promotion to the post of Lab. Assistant along with Lab. Bearers as per seniority list of 2009 Annexure -E to the

petition, so far as Petitioners have been included in the said seniority list, as being unconstitutional, illegal and against the service conditions of the

Petitioners.

The Respondents in reply to the writ petition insist that the revision of recruitment rules was necessitated due to bifurcation of Education

Department into Higher Education and School Education Departments and that change in Rules has brightened up the promotional avenues of

Class VII and Class VI employees, inasmuch as 25% post of Junior Assistants are to be filled up by promotion from the Class VIII and as against

25%, 50% of the post of Laboratory Assistants are in terms of 2008 Rules to be filled up by promotion from Class VIII. It is maintained that 2008

Rules have been made for the benefit of the Petitioners and other members of different catagories of School Education Department. The

Respondents have not taken any specific stand as regards Petitioners claim that the vacancies of Laboratory Assistants available prior to coming

into force of 2008 rules are to be filled up in accordance with 1979 Rules. The Respondents have not also specifically denied that 81 vacancies of

Laboratory Assistants were available in District Rajouri prior to coming into force of 2008 Rules. The response to the averments made in the writ

petition is evasive.

I have gone through the pleadings and have heard learned Counsel for the parties.

There is no scope for any disagreement with the legal preposition that constitution of service, mode of recruitment to a service, minimum

qualification required and the sources of appointment as also their inter-se entitlement of different categories of service to promotion belong to

exclusive province of the Government. These matters involve policy decisions and a member of the service, let alone a stranger to the service,

cannot question or dictate the policy decision, as long as these are within parameters of law.

Supreme Court in P.U. Joshi and Ors. v. Accountant General, Ahmedabad and Ors. (2004) 2 SCC 632, commenting upon the power of

Government to constitute a service and prescribe its mode of constitution, held:

... 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 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 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

services, as may be required from time to time by abolishing the 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.

However, in the present case, the Petitioners, independent of challenge to authority of the Government to revise the recruitment rules, insist that

the vacancies of Laboratory Assistants available immediately before 2008 Rules, are to be tilled up in accordance with Rules of 1979. It may be

stated at the cost of writ petition that the Respondents in their reply to the writ petition, have not denied that 81 vacancies of Laboratory Assistants

were unfilled at the time the 2008 Rules were made and notified. There is, thus, merit in the Petitioners claim that even if, the Respondents are held

to have absolute authority to revise, amend or recast the Recruitment Rules, the vacancies available before 2008 Rules came into force were to be

filled up in accordance with 1979 Rules. The Petitioners on the vacancies of Laboratory Assistants becoming available acquired a right to be

considered for promotion against the quota available to them in accordance with Rules occupying the field and the right that accrued to the

Petitioners cannot be taken away by the revised Rules.

In Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, , it has been held that the vacancies that occurred prior to the amended Rules

would be governed by the old Rules and not by the amended Rules. The Court held that there was not the slightest doubt that the posts felt vacant

prior to the amended Rules are to be governed by the old Rules and not the new Rules. The legal principle was reiterated in State of Rajasthan Vs.

R. Dayal and Others, . The Court observed:

This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and

not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be

governed by the original Rules and not the amended Rules.

For the reasons discussed above, the writ petition is allowed and by a writ of Mandamus, the Respondents are directed to accord

consideration to the promotion of the Petitioners against the posts of Laboratory Assistants, lying vacant and available immediately before Jammu

and Kashmir School Education (Subordinate) Recruitment Rules, 2008 came into force, of course, in accordance with Jammu and Kashmir

Educational (Subordinate) Service Recruitment Rules, 1979, having due regard to the seniority position of the Petitioners.