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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: N.Y. APTE & ORS.

DATE OF JUDGMENT:       04/08/1998

BENCH: SUJATA V. MANOHAR, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SRINIVASAN, J.      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-

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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

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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

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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

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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.