Parth Prateem Sahu, J
3. In both these writ petitions challenge is to the amendment brought in the Chhattisgarh Water Resources Engineering and Geological (Gazetted) Recruitment Rules, 2014 vide Notification dated 04.12.2018. As a common question of law is being involved in these writ petitions, they were heard together and are being decided by this common order.
4. Learned Senior Counsel for petitioners submits that petitioners in WPS No.4861/2021 are the Sub-Engineers (Civil) having qualification of degree in engineering and Petitioners in WPS No.3496/2020 are the Sub-Engineers (Electrical and Mechanical Branch) (for short 'E/M') of the Water Resources Department and they are working at their respective places of posting. Petitioners in WPS No.4681/2021 were appointed in the year 2013 as per Chhattisgarh Water Resources Geological Service (Gazetted) Rules, 1968 (for short ‘Rules of 1968’) The Rules of 1968 came to be amended in the year 2000, making provision of filling-up of 75% post of Assistant Engineer by way of promotion and out of this 75%, 50% posts were to be filled up from the Sub-Engineers holding diploma certificate; 20% from the Sub-Engineer having degree in engineering and 5% from the cadre of Draftsman. In the year 2014, new rules have been framed namely Chhattisgarh Water Resources Engineering and Geological (Gazetted) Recruitment Rules, 2014 (henceforth ‘Rules of 2014’) in which promotion ratio as existing in the year 2000 was maintained. Four years later, the Rules of 2014 underwent an amendment by way of Notification dated 04.12.2018 re-fixing the ratio in promotion to the post of Assistant Engineer from Sub-Engineer. According to this amendment, 27% posts are to be filled up by way of direct recruitment and 73% by way of promotion. Out of this 73% promotional posts, 70% posts are to be filled-up from the cadre of Sub-Engineers and 03% from the cadre of Draftsman. A separate channel of promotion for Sub-Engineers possessing degree and diploma respectively has been done away. The Sub-engineers entitled for promotion to the post of Assistant Engineer based on their higher qualification of degree is taken away and all the Sub-Engineers irrespective of their qualification i.e. diploma or degree, have been made entitled for promotion on the post of Assistant Engineer. In the pre-amended rules, intelligible differentia was carved by the legislature giving degree holder Sub-Engineers accelerated chance of promotion. By way of amendment, the chances of promotional avenues have been reduced/shortened. Petitioners were appointed in the year 2013, at that point of time the amendment incorporated in the year 2000 in the Rules of 1968 were in existence, based upon which the petitioners have joined the service and therefore, a vested right created in their favour cannot be taken away by the legislature by bringing amendment on 4.12.2018 in the Rules of 2014. Under the Rules of 1968, the Sub-Engineers possessing degree in engineering have been kept in a separate category for promotion on the post of Assistant Engineer. Separate channel for promotion of Sub-Engineers on 20% available posts, is legitimate expectation on the part of decree holder Sub-Engineers. Amendment brought in the Rules of 2014 is prejudicial to the interest of petitioners and other similarly situated persons. Effect of amendment brought in, is retrospective, therefore, the same would affect the Sub-Engineers like the petitioners who had joined the service prior to amendment in the Rules of 2014. Amendment brought in Schedule II of the Rules of 2014 is arbitrary, discriminatory and violative to the rights of petitioners guaranteed under Articles 14 &16 of the Constitution of India, therefore, the impugned notification dated 4.12.2018 be quashed and the position as was existing prior to Notification dated 4.12.2018 be restored.
5. Learned Senior Counsel for petitioners in WPS No.4861/2021 would further submit that though the legislature is having competence to amend and enact the law, however, it must be reasonable and not excessive or harsh. By way of amendment, the respondents have made unequal as equal and thereby action of respondents falls foul to Article 14 of the Constitution of India. Since the petitioners have been appointed in the year 2013, on which date the Rules of 1968 with amendment made in the year 2000 was in existence, the services of petitioners will be governed by the Rules of 1968.
6. Learned counsel for the petitioners in WPS No.3496/2020, while adopting the submissions made by learned Senior Counsel for petitioners in WPS No.4861/2021, submitted that by way of impugned amendment, the respondents have curtailed the promotional avenues of petitioners, who are degree holders. By way of impugned amendment, respondents have changed the rule of game in midst as at the time of appointment, the degree holders were having different channel of promotion on prescribed ratio of posts kept for promotion to the post of Assistant Engineers. However, by way of amendment, the diploma holder and degree holder Sub-Engineers have been brought at par. Petitioners, who are eligible for promotion on the next higher post i.e. Assistant Engineer, are now deprived from getting promotion on account of amendment brought in the Rules of 2014. The action on the part of respondent authorities is arbitrary, illegal and violates fundamental rights granted to the petitioners under Part-III of the Constitution of India. In support of his submissions, he placed reliance in the case of Roop Chand Adlakha & others vs. Delhi Development Authority & ors, reported in 1989 Supp. (1) SCC 116.
7. Learned counsel for the respondent-State opposing the submissions of learned counsel for petitioners in both writ petitions, argued that the respondent State is vested with legislative powers under Article 309 of the Constitution of India to frame service rules and amending the same. He submits that the legislative competence of respondent State in bringing / notifying amendment dated 4.12.2018 is not under challenge in these writ petitions. Only ground upon which petitioners have harped upon is the reduction of chances of their promotion, which cannot be a ground to set aside the amendment brought in the service rules. Chance of promotion is not the condition of service and reduction in chance of promotion would not tantamount to change in terms of conditions of service. He further contended that by clubbing 50% & 20% posts of Assistant Engineer, chances of promotion of Sub-Engineers would increase because earlier it was only limited to 20% for Sub-Engineers holding degree. Petitioners have challenged the amendment on the ground of individual hardship as number of years for coming into zone of consideration for promotion of Sub Engineers (Degree holders) to the post of Assistant Engineer is increased by two years. However, mere individual hardship would not be a ground to challenge the vires of any enactment. In support of his submission, he placed reliance on the decision rendered in the case of PGF Limited & ors vs. Union of India & anr, reported in (2015) 13 SCC 50.
8. Learned counsel for respondents submits that the entire understanding of petitioners with regard to amendment brought in the Rules of 2014 is not correct. Earlier there was classification within the same class of Sub-Engineers, holding degree and diploma holders drawing same pay-scale. The Government has taken a conscious decision upon considering various proposals from the Diploma Holders Association and after application of mind amendment has been brought in. Intention behind bringing this amendment is not to curtail chances of promotion but to increase chances of promotion of all those who are already working in one cadre i.e. “Sub-Engineer” drawing the same pay scale and engaged in the same kind of work. Prior to coming into force of the impugned amendment, the Rules of all the different departments of the State of Chhattisgarh like Public Works Department, Public Health Engineering as also other departments were having the same provision. The Public Health Engineer Department as also Chhattisgarh Rural Engineering Services Department have also amended their recruitment rules and opted for the same promotion route. Recruitment rules are framed in exercise of powers under Article 309 of the Constitution of India and it can be altered unilaterally. In support of this submission, he placed reliance on the decision delivered in the case of Roshan Lal Tandon vs. Union of India, reported in AIR 1967 SC 1889. He further submits that a right to be considered for promotion is a term of service, but mere chances of promotion are not. In support of his submission, he placed reliance on the decision in case of State of Maharashtra & anr vs. Chandrakant Anand Kulkarni, reported in (1981) 4 SCC 130.
9. We have heard learned counsel for the parties and perused the documents placed along with writ petitions.
10. It is not in dispute that the petitioners are appointed as Sub-Engineers in the Water Resources Department. Earlier, as per the Rules of 2014 as also under the Rules of 1968, as amended in the year 2000, 75% posts of Assistant Engineer (Civil) & (E/M) are to be filled up by way of promotion and out of this, 20% are to be filled-up from the Sub-Engineers who are possessing degree in engineering, and 50% from the Sub-Engineers who are holding diploma in engineering. Perusal of the amendment brought in on 17.4.2000 would show that 20% promotional posts is for the Sub-Engineers, who have obtained degree during their service tenure or possessed degree in engineering prior to entering into service. Under Schedule II of the Rules of 2014 also similar provision is made for promotion to the post of Assistant Engineer. Submission of learned counsel for respondents that all the Sub-Engineers, either diploma holders or degree holders, are being paid same pay-scale, is not disputed by learned counsel for petitioners.
11. The ground urged by the petitioners in these two writ petitions to challenge the impugned amendment in Entry-6 under Civil Branch and in Entry-3 under E/M branch of Schedule II of the Rules of 2014, is that by way of said amendment the chances of promotion of petitioners would get reduced/curtailed. It is not the claim of petitioners that by way of amendment their promotion to the post of Assistant Engineer is blocked. Protection of service condition is with respect to the condition governing their appointment. There is no bar on the employer to amend or alter service rules for justifiable cause having its effect prospectively. In the case at hand, by way of amendment the right to hold post of petitioners to which they are holding on the date of bringing or notifying amendment is not affected in any manner.
12. Petitioners or the employees under the Government are only having right to be considered for promotion under the promotional avenues available to them. Chance of promotion is not a right of an employee and is not the condition of service, as observed by the Hon’ble Supreme Court in case of Chandrakant Anand Kulkarni (supra), which reads as under:-
“16.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 conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. Under the Departmental Examination Rules for STOs, 1954, framed by the former State Government of Madhya Pradesh. as amended on January 20, 1960, mere passing of the departmental examination conferred no right on the STIs of Bombay, to promotion. By passing the examination, 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. It was, therefore, nothing but a mere chance of promotion. In consequence of the impugned orders of reversion, all that happened is that some of the STIs who had wrongly been promoted as STOs Gr. III had to be reverted and thereby lost a few places. In contrast, the conditions of service of ASTOs from Madhya Pradesh and Hyderabad, at least so far as one stage of promotion above the one held by them before the reorganisation of States, could not be altered without the previous sanction of the Central Government as laid down in the Proviso to sub-s. (7) of Section 115 of the Act.”
13. Article 309 of the Constitution of India confers powers on the the State Government to frame rules governing the service, which also includes the power to amend the service rule unilaterally. This issue was considered by the Hon’ble Supreme Court in the case of Roshan Lal Tandon (supra) and it was observed thus:-
“6. We pass on to consider the next contention of the petitioner that there- was a contractual right as regards the condition of service applicable to the petitioner at the time he entered Grade 'D and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board. It was said that the order of the Railway Board dated January 25, 1958, Annexure 'B', laid down that promotion to Grade 'C' from Grade 'D' was to be based on seniority-cum-suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner. In our opinion, there,, is no warrant for this argument. It is 'true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, 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 statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are 'fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows:
"So we may find both contractual and status-obligations produced by the same transaction. the one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligations de- fined by the law,itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. The extent to Which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by mining for itself the contents of the relationship, is a matter depending on considerations of public policy. In such contracts as those of service the tendency in modem times is to withdraw the matter more and more from the domain of contract into that of status."
14. Case of petitioners is that the diploma holder Sub-Engineers and degree holders Sub-Engineers have been brought at par and a separate channel of promotion of 20% is now abolished, meaning thereby now all the Sub-Engineers are to be considered for promotion as per their seniority under the amended rules subject to completion of required number of years of service mentioned in the amended rules. Grievance of the petitioners that by the amended rules they would face some hardship in getting promotion to the post of Assistant Engineer. It is not the case of petitioners that they would not be considered for promotion to the post of Assistant Engineer. Mere hardship of employees in getting promotion would not be the ground to challenge the rules framed in exercise of powers conferred under Article 309 of the Constitution of India on the ground that it is violative to Articles 14, 15 & 16 of the Constitution of India.
15. In case of Mohammad Shujat Ali & ors vs. Union of India & ors, reported in (1975) 3 SCC 76, the Hon’ble Supreme Court has observed thus:-
“14.This contention rests on the applicability of the proviso to section, 115, sub-section (7) of the States Reorganisation Act, 1956. Sub-section 115 reads as follows;
"Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter 1 of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State."
The effect of this sub-section is inter alia to preserve the power of the, State to make rules under Article 309 of the Constitution laying down the conditions of service of persons allocated to serve in connection with the affairs of the State. But there is a proviso which imposes a limitation on the exercise of this power and that proviso runs as .under :
"Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.”
The limitation imposed by the proviso is that the State cannot vary the conditions of service applicable immediately before 1st November, 1956 to the, disadvantage of persons allotted to serve in connection with the affairs of the State, except with the previous approval of the Central Government. The question which, therefore, arises for consideration is whether the application of the Andhra Rules for promotion from the posts of Supervisors to the posts of Assistant Engineers from and after 1st November, 1956 and the enactment of the Andhra Pradesh Rules on 22nd February, 1967 together with their amendment on 12th January, 1968 varied to their disadvantage the condition of service in regard to promotion applicable to non-graduate Supervisors from the erstwhile Hyderabad State immediately prior to first November, 1956, without the prior approval of the Central Government. 'Now the only right in regard to promotion which the condition of service immediately prior to 1st November, 1956 gave to non-graduate ,Supervisors from the erstwhile Hyderabad State was the right to be considered for promotion to fifty per cent of the posts of Sub- Engineers but the argument of the petitioners/appellants was that the posts of Sub-Engineers were equated with those of Assistant Engineers, and therefore, their right to be considered for promotion under the condition of service applicable to them immediately prior to 1st November, 1956 extended to fifty per cent of the posts of Assistant Engineers. This was the premise which formed the basis of the contention of the petitioners/appellants that the condition of service applicable to non-graduate Supervisors from the erstwhile Hyderabad State immediately prior to 1st November, 1956 was varied to their disadvantage without the prior approval of the Central Government. We will assume with the petitioners/appellants that the premise is correct, but even so, .there are at least two answers which are sufficient to repel this contention of the petitioners/appellants.”
15. In the first place, it is not correct to say that there was any variation in the condition of service in regard to promotion applicable to; non graduate Supervisors from the erstwhile State of Hyderabad immediately prior to 1st November, 1956. It is true that a rule which confers a right of actual promotion or a right to be considered for promotion is a rule prescribing a condition of service. This proposition can no longer be disputed in view of several pronouncements of this Court on the point and particularly the decision in Mohammed Bhakar v. Krishna Reddy1 where this Court, speaking through Mitter, J., said : "Any rule which affects the promotion of a person relates to his condition of service." But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion-the latter would certainly not be a, condition of service. This Court point out in State of Mysore v. G. B. Purohit2 that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. What happened in State of Mysore v. G. B. Purohit2 was that the district wise seniority of Sanitary Inspectors was changed to State wise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115, sub-section (7). This contention was negatived and Wanchoo, J., as he then was, speaking on behalf of this Court observed: It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service." Now, here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of Assistant Engineers available to non-graduate Supervisors from the erstwhile Hyderabad State for promo- tion, was reduced : originally it was fifty per cent, then it became thirty-three and one third per cent, then one in eighteen and ultimately one in twenty-four. The right to be considered for promotion was not affected but the chances of promotion were severely reduced. This did not constitute variation in the condition of service applicable immediately prior to 1st November, 1956 and the proviso to section 115, sub-section (7) was not attracted. This view is completely supported by the decision, of a Constitution Bench of this Court in Ramchandra Shankar Deodhar & ors v. The State of Maharashtra3”
16. In case of Chandrakant Anant Kulkarni (supra) it was observed by Their Lordships that mere chances of promotion are not conditions of services, and the fact that there was reduction in chance of promotion did not tantamount to a change in condition of service. A right to be considered for promotion is a term of service but mere chance of promotion is not. In the case at hand also, if the claim of petitioners is considered, the claim of petitioners is only that if the impugned amendment is allowed to stand, their chances of promotion would reduce. It is not their claim that their right to be considered for promotion is totally abolished.
17. Hon’ble Supreme Court in case of Paluru Ramkrishnaiah & ors vs. Union of India & another, reported in (1989) 2 SCC 541, while considering the issue with regard to withdrawal of circular granting accelerated chances of promotion, has observed in Para11 & 15 as under:
“11. It is thus apparent that an executive instruction could make a provision only with regard to a matter which was not covered by the Rules and that such executive instruction could not override any provision of the Rule. Notwithstanding the issue of instruction dated 6th November, 1962 therefore, the procedure for making promotion as laid down in Rule 8 of the Rules had to be followed. Since Rule 8 in t he instant case prescribed a procedure for making promotion the said procedure could not be abrogated by the executive instruction dated 6th November, 1962. The only effect of the circular dated 6th November, 1962 was that Supervisors ' A' on completion of 2 years' satisfactory service could be promoted by following the procedure contemplated by Rule 8. This circular had indeed the effect of accelerating the chance of promotion. The right to promotion on the other hand was to be governed by the Rules. This right was conferred by Rule 7 which inter alia provides that subject to the exception contained in Rule 11, vacancies in the posts enumerated therein will normally be filled by promotion of employees in the grade immediately below in accordance with the provisions of Rule 8. The requirements of rule 8 in brief have already been indicated above. Rule 12 provides that no appointment to the posts to which these rules apply shall be made otherwise than, as specified in these Rules. This right of promotion as provided by the Rules was neither affected nor could be affected by the circular. The order dated 28th December, 1965 which provided a minimum period of service of three years in the lower grade for promotion to the next higher grade and the circular dated 20th January 1966 which provided that promotions in future will be effected in accordance with the normal rules and not merely on completion of two years' satisfactory continuous service had the effect of doing away with the accelerated chance of promotion and relegating Supervisors 'A' in the matter of promotion to the normal position as it obtained under the Rules.
12. In the case of Ramchandra Shankar Deodhar & Ors., (supra) the petitioners and other allocated Tehsildars from ex-Hyderabad State had under the Notification of the Raj Pramukh dated September 15, 1955 all the vacancies in t he posts of Deputy Collector in the ex-Hyderabad State available to them for promotion but under subsequent rules of July 30, 1959 fifty per cent of the vacancies were to be filled by direct recruitment and only the remaining fifty per cent were available for promotion and that too on divisional basis. The effect of this change obviously was that now only fifty per cent vacancies in the post of Deputy Collector being available in place of all the vacancies it was to take almost double the time for many other allocated Tehsildars to get promoted as Deputy Collectors. In other words it resulted in delayed chance of promotion. It was, inter alia, urged on behalf of the petitioners that the situation brought about by the rules of July 30, 1959 constituted variation to their prejudice in the conditions of service applicable to them immediately prior to the reorganisation of the State and the Rules were consequently invalid. While repelling this submission the Constitution Bench held:-
“All that happened as a result of making promotions to the posts of Deputy Collectors divisionwise and limiting such promotions to 50 per cent of the total number of vacancies in the posts of Deputy Collector was to reduce the chances of promotion available to the petitioners. It is now we ll settled by the decision of this Court in State of Mysore v. G.B. Purohit6 that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. In Purohit case6 the districtwise seniority of sanitary inspectors was changed to Statewise seniority, and as a result of this change the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115, sub-section (7). This contention was negatived and Wanchoo, J., (as he then was), speaking on behalf of this Court observed: "It is said on behalf of the respondents that as their chances of promotion have be en affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions or service." It is, therefore, clear that neither the Rules of July '30, 195 9, nor the procedure for making promotions to the posts of Deputy Collector divisionwise varies the conditions of service of the petitioners to their disadvantage."
18. In the case of Dhole Govind Sahebrao and Others Vs. Union of India reported in (2015) 6 SCC 727, the Hon’ble Supreme Court while considering the issue of merger/ amalgamation of cadres, has observed that no judicial interference is called for unless chances of promotion and/or inter se seniority are altered arbitrarily, or on the basis of considerations which were shown to be perverse or malafide or if the same is arbitrary or discriminatory. In the present case, criteria of pay-scale to equate post from the erstwhile cadre to create new cadre, held, justified as there was no serious difference between two merged cadres either on the issue of nature and duties of post or on the subject of powers exercised by officers holding a post or extent of territorial or other charge held or responsibilities discharged by them or qualification prescribed for the post.
19. Hon’ble Supreme Court in case of Telangana Judges Association vs. UOI, reported in (2019) 18 SCC 769 while considering claim of judicial officers after reorganization of State of Andhra Pradesh has observed that although right to be considered for promotion is a right, but right to have chance of promotion is not protected.
20. Reverting back to facts of present case. Learned counsel for respective petitioners have not raised any ground before this Court that the petitioners, who are holding post of Sub-Engineer (Degree holder) and Sub-Engineer (Diploma holder) were having different responsibilities to discharge, they were handed over different nature of duties or having different powers to be exercised by the officers holding a position or extent of territory or other charge held by them. Once the petitioners have been appointed on the post of Sub-Engineer, whether they have acquired degree prior to their appointment or during their service tenure, will not in itself suggest that they are having different cadres.
21. As discussed above, there is no challenge to jurisdiction of the authority bringing amendment to the Rules of 2014 and grievance of petitioners is only that impugned amendment will affect their chances of promotion, in view of aforementioned law enunciated by Hon'ble Supreme court, we do not find any merit in these writ petitions, the same are liable to be and are hereby dismissed. No order as to costs.
