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PETITIONER: K. JAGADEESAN

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT19/02/1990

BENCH: KANIA, M.H. BENCH: KANIA, M.H. SAHAI, R.M. (J)

CITATION:  1990 AIR 1072            1990 SCR  (1) 444  1990 SCC  (2) 228        JT 1990 (1)   247  1990 SCALE  (1)238  CITATOR INFO :  RF         1991 SC 363  (14)

ACT:     Civil  services: Geological Survey of India  (Group  ’A’ and ’B’ posts) Recruitment Rules, 1967: Promotion--Promotion to  the  post of Director (M. E.  )--Requirement  of  Degree qualification--Notification    by    Government     amending Rules--Whether given retrospective effect-Validity of  noti- fication.

HEADNOTE:     The appellant, a diploma holder, was, in 1964, appointed as  Transport  Officer (Class-I Technical Grade,  Group  A), which  post was later redesignated and merged with the  post of  Mechanical  Engineer (Junior) in  1968.  The  Geological Survey of India (Group ’A’ and Group ’B’ posts)  Recruitment Rules,  1967, framed under Article 309 of  the  Constitution were brought into force in 1969. The appellant was  promoted as a Mechanical Engineer (Senior) in 1973 and his conditions of  service were governed by the said Rules, which had  been amended  from time to time. One such amendment made in  1984 prescribed  that  for  promotion to  the  post  of  Director (M.E.),  a degree in Engineering was a requisite  qualifica- tion.  The appellant challenged before the Central  Adminis- trative  Tribunal, the validity of the said notification  on the  ground  that it affected his chances  of  promotion  or alternatively  his right to be considered for  promotion  to the post of Director (M.E.). It was contended that  applying the amended Rule, in so far as the appellant was  concerned, would amount to giving retrospective effect to the operation of the rule, and no retrospective rule could be framed under Article  309 of the Constitution. The Tribunal rejected  the contention  and held that it was for the Government to  pre- scribe  such  qualifications as it considered fit,  and  the Tribunal  could  not  interfere unless it was  shown  to  be perverse.     Aggrieved  against the Tribunal’s order,  the  appellant has preferred this appeal by special leave. Dismissing the appeal, this Court, HELD: 1. Mere chance of promotion is not condition of  serv- ice

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445 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. [448D]     state  of  Maharashtra  and Anr.  v.  Chandrakant  Anant Kulkarnt and Others, [1981] 4 SCC 130, relied on.     T.R.  Kapur and Others v. State of Harvana  and  Others, [1986] (Suppl.) SCC 584, referred to.     2. In the instant case, no retrospective effect has been given to the said amended rule. It is not the case that  the appellant has been reverted from the post which he  occupies on the ground of lack of any qualification. The only  effect is  that  his  chances of promotion to the  higher  post  is adversely  affected.  Alteration  of  rules  of  eligibility cannot be invalidated on the ground that an employee’s claim to  be  eligible for promotion is adversely  affected.  This cannot  be regarded as retrospective effect being  given  to the  amendment of the rules carried out by the  Notification and  the challenge to the said notification on  that  ground must fail. [448F-G]     3. The fact that for the higher post of Deputy  Director General (Engineering Service), it is not necessary to hold a graduate  degree is no reason why a degree  requirement  for the  post  of Director (Mechanical) should  be  regarded  as unreasonable  or  bad in law. It is for  the  Government  to decide what qualification was required for promotion to  the post  of  Director (M.E.) and, unless that  requirement  was totally irrelevant or unreasonable, it could not be said  to be bad in law. [419B-C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3607  of 1989.     From  the  Judgment and Order dated 25.4.88  of  Central Administrative Tribunal Hyderabad in T.A. No. 1185/86.     R.  Venkataramani, V.G. Pragasam and S.M. Garg  for  the Appellant.     Kapil  Sibal,  Additional Solicitor General,  B.  Datta, Mrs. Indra Sawhney, Ms. Sushma Suri, B. Rajeshwar Rao, Vimal Dave and C.V. Subba Rao for the Respondents. 446 The Judgment of the Court was delivered by     KANIA,  J. This is an appeal by special leave against  a decision  of the Central Administrative Tribunal,  Hyderabad in  Transfer Application No. 1185 of 1986 (W.P. NO. 8226  of 1985).     All the relevant facts have been set out by the Tribunal in  its judgment. As we are in agreement with the  reasoning and conclusions of the Tribunal in the impugned judgment, we propose  to set out only the brief facts necessary  for  the disposal Of the appeal.     Under the relevant rules, the recruitment to the post of Superintending  Mechanical  Engineer was  by  promotion  and failing that by direct recruitment. It may be mentioned that for direct recruitment to the said post, the  qualifications of  a  degree in Mechanical or  Automobile  Engineering  was prescribed as essential. For promotion to the post of Direc- tor  (M.E.) the requisite qualification was five  years  01’ service  in the grade of Mechanical Engineer  (Senior).  The appellant became eligible for promotion in 1978, but he  was not promoted as there were some senior persons in his grade, who  were promoted to the said post. On January 31, 1984,  a

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Notification  was issued by respondent No. 1,  amending  the said  Rules and the said Notification was duly published  in the Gazette of India. By the said amendment, the said  Rules were amended and it was prescribed that for promotion to the post of Director (M.E.) a degree in Engineering was a requi- site qualification. The appellant challenges the validity of this Notification on the ground that it affected his chances of promotion or alternatively his right to be considered for promotion to the post of Director (M.E.). The appellant is a Mechanical  Engineer  (Senior) in the Geological  Survey  of India, Southern Region, Hyderabad. The appellant is a diplo- ma  holder and does not hold any degree in  engineering.  On April  27,  1964  he  was  appointed  as  Transport  Officer (Class-I Technical Grade, Gruop ’A’). This post was redesig- nated  and  merged  with the  post  of  Mechanical  Engineer (Junior) in March 1968. On November 28, 1969, the Geological Survey of India (Group ’A’ and Group ’B’ Posts)  Recruitment Rules, 1967, made under Article 309 of the Constitution were brought into force. The appellant was promoted as a Mechani- cal  Engineer (Senior) with effect from March 17,  1973  and his  conditions  of service were governed by  the  aforesaid rules.  These rules have been amended from time to time.  It was submitted by learned counsel for the appellant that  the said  amendment  purported  to be carried out  by  the  said Notification  was  bad  in law as it  adversely  affected  a condition of service relating to promotion. It was submitted 447 by  learned  counsel  for the appellant that  if  the  rule, requiring  a degree qualification for promotion to the  post of Director (M.E.), was applied as far as the appellant  was concerned, it would amount to giving a retrospective  effect to the operation of the said rule and no retrospective  rule could be framed under Article 309 of the Constitution.  This contention  was rejected by the Tribunal which held that  it was  for the Government to prescribe such qualifications  as it  considered fit for the post of Director (M.E.)  and  the Tribunal could not go into the question whether that  quali- fication  was  necessary unless the prescribing of  the  re- quirement could be said to be perverse. The Tribunal further took  the  view that the appellant had no  vested  right  to promotion but had a mere chance of promotion and he was  not entitled to challenge the rule merely on the ground that  it affected his chance of promotion. The said appeal is direct- ed against the said decision.     The  main argument of learned counsel for the  appellant is  that the Tribunal was in error in holding that the  rule affected  merely a chance of promotion which  the  appellant had.  It  was submitted by him that although  the  appellant could  not claim any right to be promoted, he certainly  had the  right to be considered for promotion and the  amendment to  the rule carried out by the said Notification  depriving of that right was bad in law.     Strong  reliance was placed by the learned  counsel  for the  appellant on the decision of this Court in  T.R.  Kapur and Others v. State of Haryana and Others, [1986] Supl.  SCC 584 at 595 where it was held that right to be considered for promotion  is  a  condition of service.  This  decision  is, however, of no assistance to the learned counsel in  support of  his argument because the Bench which rendered  the  said decision  has stated (at paragraph 16, page 595 of the  said report) as follows: "It is well settled that the power to frame. rules to  regu- late the conditions of service under the proviso to  Article 309  of the Constitution carries with it the power to  amend or alter the rules with a retrospective effect. It is equal-

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ly  well settled that any rule which affects the right of  a person  to  be considered for promotion is  a  condition  of service although mere chance of promotion may not be." It was further held that: "an authority competent to lay down qualifications for 448 promotion,  is also competent to change the  qualifications. The rules defining qualifications and suitability for promo- tion  are  conditions  of service and they  can  be  changed retrospectively"- It was, however, clarified that: "unless  it is specifically provided in the rules,  the  em- ployees who are already promoted before the amendment of the rules,  cannot  be reverted and their promotions  cannot  be recalled."     It  is  only in this sense, that is, as set out  in  the immediately preceding paragraph that the view has been taken that  the rules cannot be retrospective. The ratio  of  this decision is not applicable to the case before us as there is no  question of reverting the appellant. Again, it has  been held  by  a Bench comprising three learned  Judges  of  this Court,  in State of Maharashtra and Another  v.  Chandrakant Anant  Kulkarni and Others, [1981] 4 SCC 130  (at  paragraph 16,  page  141  of the said report), that  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 condition of service. A  right to  be  considered for promotion is a term of  service,  but mere  chances of promotion are not. It was also  held  there that mere passing of the departmental examination  conferred no  right  on the concerned S.T. Inspectors  of  Bombay,  to promotion.  They merely became eligible for promotion.  They had  to  be brought on to a select list, not merely  on  the length  of service but on the basis  of  merit-cum-seniority principle.      In our opinion, n0 retrospective effect has been  given to  the said amended rule. It is not argued that the  appel- lant  has been reverted from the post which he  occupies  on the ground of any lack of any qualification. The only effect is that his chances of promotion or his right to be  consid- ered for promotion to the higher post is adversely affected. This cannot be regarded as retrospective effect being  given to  the amendment of the rules carried out by  the  impugned Notification  and the challenge to the said notification  on that ground must fail.      The  next  argument advanced before us by  the  learned counsel for the appellant is that employees in the  drilling stream who might be diploma holders could move by  promotion to  the grade of Director (Drilling) which is equivalent  to the  post of Director (Mechanical Engineering) and would  be further eligible to be considered for the 449 next  higher  post of Deputy Director  General  (Engineering Service)  on  the basis of a common seniority  of  Directors (Mechanical)  and  Directors (Drilling).  It  was  submitted that,  in  this situation, the requirement of a  degree  for promotion  to  the  post of Director  (Mechanical)  must  be regarded  as unreasonable and bad in law. This argument  was rejected  by the Tribunal on the ground that the  fact  that for the higher post of Deputy Director General  (Engineering Service),  it is not necessary to hold a graduate degree  is no reason why a degree requirement for the post of  Director (Mechanical)  should be regarded as unreasonable or  bad  in law.  It is for the Government to decide what  qualification was  required  for  the promotion to the  post  of  Director

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(M.E.)  and, unless that requirement was totally  irrelevant or  unreasonable, it could not be said to be bad in law.  In this regard, we agree with the reasoning and conclusions or’ the Tribunal.     In the result, the appeal fails and is dismissed.  There will be no order as to costs. G.N.                                            Appeal  dis- missed. 450