Union of India & Ors Vs. N.Y. Apte
& Ors [1998] INSC 379 (4 August 1998)
Sujata
V. Manohar, M. Srinivasan Srinivasan, J.
ACT:
HEAD NOTE:
The
appellant are aggrieved by the judgment and order of the Central Administrative
Tribunal, Principal Bench, New Delhi striking down the provisions of Indian
Meteorological Service (Group A posts) Recruitment (amendment) Rules, 1983
(hereinafter referred to as "1983 Rules") and Indian meteorological
Service (Group a posts) Recruitment Rules, 1978 (hereinafter referred to as
"1978 Rules") to the extent indicated in the order at the instance of
the respondents herein who joined the Department as meteorologists Gr. II in
1981-82. We are concerned in this case with the posts of meteorologists Gr.I,
Meteorologists Gr. ii and Assistant Meteorologists. For the sake of convenience
we will refer to them as MG-I, MG-II and AM.
2. In
January 1969, Indian Meteorological Department (Class I and Class II) posts
Recruitment Rules, 1969 (hereinafter referred to as "1969 Rules")
were framed under Article 309 of the constitution. The posts of MG-I and MG-Ii
were Class I Gazetted posts whereas the post of AM was Class II gazetted post.
All the three posts were selection posts.
The
post of MG-I was to be filed up by promotion of MG-II with three years approved
service in the grade. The post of MG-II was to be filed up by promotion to the
extent of 50% and the remaining 50% by direct recruitment. The promotion was to
be from AM/Assistant Agricultural Meteorologist/Assistant Seismologist with three
years approved service in the grade. The post of AM was to be filled up 50% by
promotion and 50% by direct recruitment.
The
promotion in turn was from the post of Professional Assistant (including
Foreman), Superintendent D.G.O's Office, Superintendent D.D.G.O's (climatology
and Geophysics) office. The educational qualifications for all the three posts
were the same, namely, Second Class M.Sc Degree in Physics, Statistics, Maths,
Applied Physics and Geo Physics or Second Class M.S.C. degree in Agriculture.
As regards the post of AM the knowledge of German, French or Russian as
additional qualification was mentioned as desirable. The scale of pay for MG-II
was Rs.400-40-800-50- 950 whereas the scale of pay for AM was Rs.
350-25-500-30- 590-EB30-800-EB-30-830-35-900.
3. In
October 1978, in partial supersession of 1969 Rules, the President made the
1978 Rules. Those rules related to MG-II and MG-I and higher posts. As we are
not concerned with higher posts, we are not referring to the same. Both MG-I
and MG-II were Group a Gazetted posts. The post of MG- II was to be filled up
entirely by direct recruitment. The post of MG-I was to be filled up by
promotion from the post of MG-II with five years approved service in the grade
(excluding the period of training) or with 8 years combined service in the
grades of MG-II and AM or AM with 10 years approved service in the grade. The
selection was to be made in consultation with U.P.S.C. on each occasion. The
educational qualification for both the posts was the same i.e. at least Second
Class Master Degree in Science or Second class Degree in Engineering from a
recognized University or equivalent. For the post of Mg-I an additional
qualification of five years experience in a responsible capacity in the field
was prescribed. Thus by the 1978 Rules the avenue of promotion for AM to the
post of MG-II was closed. In lieu of that AM with ten years approved service in
the grade and MG-II with 8 years combined approved service in the grades of
MG-II and AM were included in the filed of consideration fro promotion to the
post of MG-I alongwith MG-II with five years approved service in the grade.
4. The
respondents herein entered service as MG-II by direct recruitment in 1981/82 as
per the 1978 Rules. In June 1983, the 1978 Rules were amended whereby the
requirement of 10 years approved service in the grade of AM for being
considered for promotion to the grade of MG-I was reduced by two years. Thus
after the amendment of 1983 the post of MG-I can be filled by promotion of
MG-II with five years approved service in the grade (excluding the period of
training), or MG-II with 8 years combined approved service in the grade of
MG-II and AM or AM with 8 years approved service in the grade. The note
appended to the rule as amended was that the eligibility list for promotion
shall be prepared with reference to the date of completion of the prescribed
qualifying service in the respective grade/post.
5.
Challenging the validity of the aforesaid amendment made in 1983 the
respondents filed a writ petition in the High Court at Delhi seeking a
declaration that the said rules were void and ultra vires the constitution and
praying for a direction to the respondents therein to consider them for
promotion to the post of MG-I before considering the case of MG-II who has
worked earlier as AM and further to maintain their inter se seniority upon
promotion. That writ petition was transferred to the Central Administrative
Tribunal, Principal Bench, New Delhi
after the constitution thereof. The Tribunal opined that by virtue of the
amendment, the post of AM had been equated to the post of MG-II and thereby unequals
were treated as equals. Hence the Tribunal struck down the said Rules as
unconstitutional.
Though
there was no prayer in the writ petition with reference to the 1978 Rules, the
Tribunal allowed the counsel for the respondents to make an oral request for
striking down the relevant provision in the said Rules for the same reason. In
the end, the Tribunal struck down the 1983 Rules and that portion of the 1978
Rules which provided for promotion to the post of MG-I. The tribunal issued
certain consequential directions while making it clear that the promotions
already made to the cadre of MG-I before the coming into force of the
Notification of the 1983 Rules in accordance with 1978 Rules shall not be
disturbed. It is that order which is assailed before us now.
6. We
have heard learned counsel on both sides and perused the records. We are unable
to agree with the view expressed by the Tribunal that by the amended rules, unequals
are treated as equals. Before setting out our reasons, it is necessary to point
out that at the time when the respondents filed the writ petition before the
High Court of Delhi they were not even in the zone of consideration for promotion
to the post of MG-I in fact, the Tribunal has taken note of the same and
observed that they have not earned eligibility for promotion to the cadre of
MG-I as they did not have to their credit five years of approved service in the
grade as on that date. Thus when the respondents approached the Court they
could not even claim that they had a chance of promotion at that time. The writ
petition ought not to have been entertained at their instance. In view of the pessage
of time, we do not propose to rest our conclusion on that aspect of the matter.
7. We
have already pointed out that in 1978 when the 1969 Rules were partially
superseded and the posts of MG-I and MG-II were bracketed with higher posts all
of which were termed as Group A posts, the persons holding the posts of AM lost
their chance of getting promoted to the post of MG-AII as the same was to be
filled up entirely by direct recruitment though they had the requisite
educational qualification. The only promotional avenue available to them under
the 1969 Rules was closed. Necessarily, the rule- making authority had to make
an alternative provision for such qualified persons with an avenue of
promotion. Hence the 1978 Rules widened the field of consideration for
promotion to the post of MG-I by including person who had put in long number of
years of service either as AM exclusively or as MG-II and AM put together. It
is obvious that the rule-making authority have credit to the experience gained
by AM either as AM or as AM and MG-II for specified number of years. When the
educational qualifications are same and the scales of pay are almost equal,
there is nothing wrong in equating MG-II with five years approved service in
the grade with MG-II with total of 8 years combined approved service in the grades
of MG-II and AM as well as AM with 10 years approved service in the grade. The
mere fact that on account of certain fortuitous or other circumstances a person
with equal educational qualification entered the service in a lower grade will
not keep him permanently inferior or unequal to a person who had entered a
higher grade and prevent him from being placed on par with the latter after
gaining sufficient experience in the service.
8.
Further, what all has been done in the rules is only to include such persons in
the field of consideration and give an opportunity to them to be considered for
promotion. It should not be forgotten that such promotion is only by selection
and that too by a Board consisting of high officials in consultation with UPSC
on each occasion. In such a situation there is no warrant for the contention of
the respondents that they have been deprived of any right.
it is
too well settled that chance of promotion is not a right, nor a condition of
service.
9.
There is no merit in the contention that thereby unequals have been made
equals. A person holding the post of MG-II for five years cannot claim that a
person holding the post of MG-II and AM on a combined service of 8 years is not
equal to him; nor can it be said that the person holding the post of AM for ten
years is not equal to either of them. The matter of equation of posts is
entirely within the domain of the rule-making authority and unless the rule is
wholly unreasonable and irrational, the Court will not interfere with the same.
10.
There is no basis for the fear expressed by the respondents before the Tribunal
that juniors to them in the cadre of MGG-II who had served earlier as AM in the
lower cadre would go above them and be considered for promotion as MG-I in
preference to themselves. There is a fallacy in the argument. In the 1978 Rules
a person holding the post of MG- II as a direct recruit becomes eligible for
promotion to the post of MG-I only after completing five years approved service
in the grade. From 1978 there could be no promotion whatever to the post of
MG-II. Hence, whoever entered the cadre of MG-II by promotion could have done
so only prior to 1978. Whoever was thus in service as MG-II at the time when
the respondents entered service as MG-II was undoubtedly senior to the
respondents.
11.
With reference to the amendment brought in 1983, it is obvious that the same
was introduced on the footing that a person holding the post of AM with 8 years
approved service in the grade could be equated to a person in combined service
of 8 years in the posts of MG-II and AM. There is no difference in the
educational qualification and the scales of pay are almost equal. If the
rule-making authority has thought it fit to equate those posts on the basis of
longer experience in the lower post, we do not find any justification to
interfere with the same. The respondents are not in a position to satisfy us
that MG-II with five years approved service is superior to MG-II with eight
years combined service in the posts of MG-II and AM or AM with eight years
approved service in the grade.
12.
The respondents have placed before us the rules made in 1982 regulating the
method of recruitment to Grade 8 posts of AM. Recruitment for that post from
1982 is by promotion only. The feeder category is that of Professional
Assistant including Professional Assistant (Foreman) with three years regular
service in the grade and possessing at least bachelor Degree in Science or
Diploma in Engineering from a recognized University/Institution or equivalent
or should have successfully completed intermediate training in Meteorology
conducted by India Meteorological Department.
The
respondents placed reliance on those rules for the purpose of contending that
the essential qualification of at least Second Class M.S.C. Degree prescribed
for the post of AM in the 1969 Rules had been done away with. Hence, according
to them AM with longer experience cannot be equated to MG-II.
13.
The fallacy in the argument of the respondents is apparent. The educational
qualification for the post of MG-I as per the 1978 Rules are at least Second
Class Master Degree in Science or Second Class Degree in Engineering from a
recognized University or equivalent plus five years experience in a responsible
capacity in the relevant filed.
Any person
holding the post of MG-II with five years approved service in the grade or
eight years combined service in the grades of MG-II and AM or AM with eight
years approved service in the grade will be considered for promotion to the
post of MG-I only if such person fulfils the essential qualifications
prescribed for that post.
Hence,
there is no substance in the contention that a person holding the post of AM
having been promoted thereto from the post of Professional Assistant with
lesser educational qualification would be equated to those having the essential
qualifications requisite for the post of MGII.
14.
Looking at the matter from any angle, we do not find any illegality or
unconstitutionality in the 1978 Rules or the 1983 Rules. consequently, the appeal
is allowed and the judgment of the Tribunal dated 20.2.92 in T.A. No. 16/90 is
hereby set aside. The said T.A. No. 16/90 stands dismissed.
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