Allahabad High CourtJhansi Division Jal Sansthan Karmchari ... vs State Of U.P. on 5 March, 2004Equivalent citations: 2004(2)AWC1849Author:B.S. ChauhanBench:B.S. Chauhan,Ghanshyam DassJUDGMENT

 

B.S. Chauhan, J.1. This writ petition has been filed for issuing a direction to the respondent not to give effect to the order/seniority list dated 17.12.2003 (Annexure-6) and to give an option to the members of the petitioner-union to opt for the new Rules or to continue under the old Rules.2. Facts and circumstances giving rise to this case are that the petitioner is a registered trade union of engineering staff of engineering cadre of Jai Sansthan, Jhansi, i.e., Junior Engineers, Assistant Engineers, Executive Engineers and General Managers. The services of the members of the petitioner union are governed and regulated by the provisions of the U. P. Patika (Centralised ) Services Rules, 1966 (hereinafter called the 'Rules, 1966'). Rules 20 and 21 thereof provided for promotion and appointment to the centralised services. Rule 20 thereof provided for filling up the vacancies by promotion on the basis of inter se seniority subject to the rejection of unfit in consultation with the U. P. Public Service Commission. Promotions have been made from time to time under the said provisions. However, in Rule 21 (2) thereof, amendment has been made in 2003 (as notified in the Gazette dated 27.2.2003) providing that on the posts of General Manager and Urban Engineer (Water), promotion shall be made exclusively on merit. Hence this petition.3. Sri R. K. Nigam, learned counsel appearing for the petitioner submits that amendment had been made taking away the accrued rights of the members of the petitioner-union for future promotion and as the same has been made without giving an option to the members of the petitioner union either to opt the new Rules or to continue under old system and without giving any opportunity of hearing to either of them or their representatives, it is arbitrary, and as the same has been made in utter disregard to the principles of natural justice, the same is liable to be quashed.4. On the other hand, Shri Sudhir Agrawal, learned Additional Advocate General, appearing for the respondent has submitted that he did not want to file the counter-affidavit in the matter as it raised the pure question of law as to whether the employer has a right to change the service conditions unilaterally, adversely affecting the future prospects of promotion, the matter may be heard finally. He had submitted that no person can claim the promotion as a matter of right and employee has a right to have some promotional avenues and further a right of being considered for the said post, if he fulfils the requisite eligibility provided under the Statutory Rules, etc. As by amendment, none of the accrued rights of the members of the petitioner union has been taken and the amended provision does not have any retrospective application, the petition is liable to be dismissed.5. We have considered the rival submissions made by the learned counsel for the parties and perused the record.6. Facts are not in dispute. Only question involved herein as to whether by amendment in the Rule 21 (2) of the Rules, 1966, on highest posts of General Manager/Urban Engineer (Water), the substitution of the criteria of seniority subject of being found unfit by the eligibility of merit, takes away any accrued right in favour of its members or such amendment is permissible unilaterally at the behest of the State.7. The Issue Involved herein is no more res integra. It has been considered time and again by the Hon'ble Supreme Court.8. A Constitution Bench of the Supreme Court inRoshan Lal Tandon v. Union of India and Ors., AIR 1967 SC 1889, examined the similar issue and observed as under :".......................The    legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by Statue or statutory Rules which may be unilaterally altered  by (he Government without the consent of the employee."9. Constitution Benches of the Supreme Court inB.S. Vadhera v. Union of India and Ors., AIR 1969 SC 118 ;State of Jammu and Kashmir v. Triloki Nath Khosa, AIR 1974 SC 1 and B. S. Yadav and Ors. v. State of Haryana, AIR 1981 SC 561, held that service conditions of an employee can unilaterally be changed with retrospective effect.10.InState of Mysore v. Krishna Murty and Ors., AIR 1973 SC 1146 ;Raj Kumar v. Union of India, AIR 1975 SC 1116 and K.C. Arora v. State of Haryana and Ors., (1984) 3 SCC 281, the Apex Court observed that it was well-established that Rules made under the proviso toArticle 309of the Constitution, being legislative in nature and character, could be given effect to retrospectively.11. A Constitution Bench of the Hon'ble Apex Court inState of Gujarat and Ors. v. Raman Lal Keshav Lal Soni and Ors., AIR 1984 SC 161, observed as under :"The Legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution and have to conform to the dos and don'ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The laws must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today."12.InK. Nagraj and Ors. v. State of Andhra Pradesh and Anr., AIR 1985 SC 551, the Hon'ble Supreme Court upheld the amendment in the Andhra Pradesh Public Employees (Regulation of Conditions of Service) Ordinance, 1983, by which the age of retirement was reduced from 58 to 55 years observing neither being arbitrary nor irrational. The Apex Court held that as it would apply in future of the existing employees and does not take away the right of the persons who have already              retired, the amendment was not retrospective and those persons who were already in service and were expecting to retire at the age of 58 years and would now be retired at the age of 55, cannot claim that the Rules have been amended with retrospective effect taking away their accrued rights.13. In T.R. Kapoor and Ors. v. State of Haryana and Ors., AIR 1987 SC 415, the Hon'ble Apex Court again examined the similar issue and held as under :"It  is   well-settled   that   the power to frame rules to regulate the  conditions  of service  under the proviso toArticle 309of the Constitution  carries  with  it  the power to amend or alter the rules with a retrospective effect............ It is equally well-settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso toArticle 309which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the test ofArticles 14and16(1)of the Constitution."14.InK. Jagadeesan v. Union of India and Ors., AIR 1990 SC 1072, the Supreme Court held that if the employer unilaterally amends the Rules, reducing the chances of promotion in future, it cannot be held that such amendment takes away the rights accrued to the employee, as it cannot be held even by stretch of imagination that the Rules have been amended and made applicable with retrospective effect.15. In J. Rangaswami v. Government of Andhra Pradesh and Ors., AIR 1990 SC 535 and A. Satyapal Reddy v. Government of Andhra Pradesh, (1994) 4 SCC 391. the Hon'ble Apex Court held that fixing the eligibility, i.e., qualification/ experience etc. fall within the ambit of the Executive and "it is not for the Court to consider the relevance of the qualifications prescribed."16. In State of Jammu and Kashmir v. Shiv Ram Sharma and Ors., AIR 1999 SC 2012, the Hon'ble Supreme Court rejected a similar contention and held that if by amendment, the chances of promotion have been reduced, it cannot be held that the promotional avenues have been denied totally and no direction can be issued to modify the Rules by applying the principles of avoidance of stagnation. The Court held as under :"It 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."17. Similarly, InState of Karnataka and Ors. v. Mangalore University Non-Teaching Employees Association and Ors., AIR 2002 SC 1223, the Hon'ble Supreme Court held that conditions of service can be altered unilaterally by the employer but it should be in conformity with legal and constitutional provisions.18. In view of the above discussion, the law on the Issue can be summarised that an employer has a right to change the service conditions of an employee unilaterally and reduce the chances of promotion also but there must be promotional avenues available to the employee and it should not bring complete stagnation for him. More so, service conditions also can be changed with retrospective effect, but it should not take away the rights accrued in favour of the employees and such a unilateral change should be in consonance with the mandate of the constitutional provisions.19. If the instant case is examined in the light of the aforesaid settled legal proposition, the amended Rules do riot take way the promotion of any of the members of the petitioner union, already made on the post of General Manager or Urban Engineer (Water). The amended Rules does not have any retrospective application. No fault can be found with the amendment merely on the ground that the chances of promotion for some of the employees may be reduced for the reason that promotion cannot be claimed as indefeasible right.20. The ratio of the judgment inH. L. Trehan and Ors. v. Union of India and Ors., (1989) 1 SCC 764, heavily relied by Shri Nigam, learned counsel appearing for the petitioner, is not applicable in the instant case, as the facts of the said case are quite distinguishable. In the said case, a notification of vesting the management of the undertakings of Caltex (India) Ltd. in CORIL was challenged and that vesting had adversely affected the perquisites of the petitioners therein. As it resulted in civil consequences, the Apex Court held that such a course was not permissible without giving an opportunity of hearing to the adversely affected employees.21. In the instant case, the amendment has not visited any employee with civil consequences nor it is petitioners' case that the perquisites of any of the employees has been reduced because of the commencement of the amendment or resulted in reversion of any employee promoted earlier under the then existing rule on the basis of seniority.22. Petition is devoid of any merit and accordingly dismissed. No cost.