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PETITIONER: STATE OF J&K

       Vs.

RESPONDENT: SHIV RAM SHARMA & ORS.

DATE OF JUDGMENT:       30/03/1999

BENCH: S.R.Babu, S.Saghir Ahmad

JUDGMENT:

RAJENDRA BABU, J.  :

     Leave  granted.   Respondents filed writ petitions  in the  High  Court of Jammu & Kashmir seeking quashing of  the Rules  published  vide  notification   No.   SRO:328   dated November  22, 1992 to the extent it related to qualification bar  in Class-A categories I & II and for further  direction to  fill up the posts on the basis of seniority irrespective of  qualifications.  Respondent Nos.  1 and 2 were initially appointed  as  Rig-man  in  the months of  March,  1967  and November,  1967  respectively.  Respondent Nos.  3,4  and  5 were  initially  appointed  as Boring Mistry,  Grade  II  in February,  1984, July, 1984 and January, 1984  respectively. Respondent  Nos.   1  and 2 were promoted in  the  month  of February,  1983 from the post of Rig-man which was later  on re-designated   as   Boring-Mistry,  Grade   I   and   again re-designated  as Drill Operator, Grade I in the year  1990. Respondent Nos.  3,4 and 5 were working on the post of Drill Operator,  Grade  II.   On  November  22,  1990  Rules  were promulgated  under Section 124 of the Constitution of  Jammu and  Kashmir  styled as Jammu & Kashmir Geology and  Mining (Subordinate)  Service Recruitment Rules, 1990.  The  Rules were  to come into force from the date of their  publication in  the  Government Gazette, which, it is said, was done  on November  22,  1990.   Under   these  Rules,  the  requisite qualification  for  promotion  of a Drilling  Assistant  was prescribed  as  matriculation  with five years  service  as Boring  Mistry,  Grade  I or Drill Operator, Grade  I.   For promotion  to  the  post  of Boring  Mistry,  Grade  I/Drill Operator,   Grade  I,  the   minimum   basic   qualification prescribed  was  matriculation with seven years  service  as Boring  Mistry,  Grade  II  or  Drill  Operator,  Grade  II. Recruitment to the post of Rig-man, that is, Drill Operator, Grade  II  and Assistant Drilling (Now  Drilling  Assistant) were  made  partly by appointment from state subjects  whose academic  qualification  was  matriculation  and  above  and partly  on contract basis from non-state subjects possessing vast  experience in drilling but without necessary  academic qualification.   The services of these persons appointed  on contract  basis was subsequently regularised by a Government order  with all benefits of promotion, pension, etc.  It was noticed  that in the higher promotional posts the incumbents had   to   shoulder  higher   responsibilities,   such   as, maintaining log books, keeping records of inventories and do other   technical  and  administrative   tasks   for   which qualification  of  matriculation was  considered  necessary.

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None  of  the  respondents possessed  the  qualification  of matriculation.   Therefore,  they could not be  promoted  to higher  grades.   The  High Court took the  view  that  when respondent  Nos.  1 and 2 had been promoted last in the year 1983 insistence on matriculation qualification for promotion to  a  higher post was illogical and for such posts  service experience  should be the sole criteria.  On that basis, the learned  Single  Judge  allowed  the  writ  petitions.   The Division Bench, to which the appeal was preferred, also took the similar view and it was stated that the respondents were promoted  in  the year 1983 and therefore, they  are  facing complete  stagnation  not because of absence of  promotional avenues  but  because  of the requirement  of  matriculation qualification.  By the time they reach that stage they would be  at  the  fag end of their career and insistence  on  the passing  of  the  matriculation  would be  fatal  as  it  is impossible  for them to take such an examination now and  it was  observed that the Rules have to be amended suitably  to avoid  stagnation and adverted to the decision of this Court in  T.R.Kothandaraman & Ors.  vs.  Tamil Nadu Water Supply & Drainage Board & Ors., 1994(6) SCC 282.  The learned counsel for  the appellants submitted that the High Court could  not have  directed amendments of the Rules particularly when  it had  noticed  that the promotional avenue from one grade  to another  was  available subject to certain conditions,  such as,  fulfilment of qualifications and experience.  It is not a   case  where  the  Rules   did  not  permit   promotional opportunities  at  all to higher grade from lower grade  and the  hardship  resulting to one or two individual  employees should  not be taken note as a general standard to give  the impugned  directions  and,  therefore, the  learned  counsel submitted  that the view of the High Court is not  justified at  all.  The learned counsel for the respondents vehemently contended  that the promotional opportunity under the  Rules is  only a mirage by reason of the qualifications prescribed thereto   which   are  impossible  of  fulfilment   by   the respondents.   When the respondents joined the service  long before   these   Rules  were   promulgated  there   was   no prescription of qualification of matriculation for promotion and  sole  avenue for promotion is deprived of by reason  of prescription   of   such   qualification.   He,   therefore, submitted  that relaxation in the Rules is required and  all that  the  High Court has directed is to relax the  relevant rules  which would result in benefit to the respondents and, therefore,  no interference is called for.  He also  pointed out  that  in  case of one J.R.Sharma the benefit  had  been extended to him in relaxation of the Rules.  The law is well settled  that  it  is  permissible  for  the  Government  to prescribe  appropriate  qualifications  in   the  matter  of appointment  or promotion to different posts.  The case  put forth  on behalf of the respondents is that when they joined the service the requirement of passing the matriculation was not  needed and while they are in service such  prescription has  been  made  to their detriment.  But it is  clear  that there  is no indefeasible right in the respondents to  claim for promotion to a higher grade to which qualification could be  prescribed  and there is no guarantee that  those  rules framed  by  the  Government in that behalf would  always  be favourable  to  them.   In Roshan Lal Tandon vs.   Union  of India,  1968(1) SCR 185, it was held by this Court that once appointed  an employee has no vested right in regard to  the terms  of service but acquires a status and, therefore,  the rights  and obligations thereto are no longer determined  by consent  of parties, but by statute or statutory rules which may  be  framed and altered unilaterally by the  Government.

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The  High  Court has also noticed that there was  an  avenue provided   for  promotion  but   the  prescription  of   the qualification  was  not  favourable   to  respondents.   The principle  of avoiding stagnation in a particular post  will not  be  with reference to a particular individual  employee but with reference to the conditions of service as such.  As long  as  rules provide for conditions of service making  an avenue  for promotion to higher grades the observations made in  T.R.Kothandaramans  case [supra] stand  fulfilled.   In that  view of the matter, we do not think the High Court was justified  in  allowing  the  writ petitions  filed  by  the respondents.   The case of J.R.Sharma stood altogether on  a different  footing who was appointed in the year 1962 and he was  promoted  to higher grades with effect from 1989,  that is,  prior  to the coming into force of the Rules.  In  that view  of the matter, we do not think that that case could be taken  note  of  in giving any directions in favour  of  the respondents.   In  the result, we allow this appeal and  set aside  the order made by the High Court affirming the  order made  by  the  learned  Single Judge and  dismiss  the  writ petitions filed by the respondents.  No order as to costs.