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HUM VEER versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Hum Veer v. State Of U.P. And Others - WRIT - A No. 35634 of 2003 [2003] RD-AH 285 (21 August 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 35634 OF 2003

Hum Veer Singh ------ Petitioner

 Vs.

State of U.P. & ors. ------       Respondents

______

Hon'ble Dr. B.S.Chauhan, J

Hon'ble D.P.Gupta, J.

(By Hon'ble Dr. B.S.Chauhan, J.)

This writ petition has been filed for quashing the impugned Government Order dated 10.04.2003, by which it has deleted clause (1) of Rule 54 of the U.P. Subordinate Education Service Rules, 1992.

Facts and circumstances giving rise to this case are that the petitioner is working as a Head Master of the Junior High School and his services are governed by the provisions of the Basic Education Teachers Service Rules, 1981 read with provisions of the Basic Education Act, 1972. The services of Sub Deputy Inspector of Schools/Assistant Basic Shiksha Adhikari/ Basic Shiksha Adhikari are governed by the provisions of the U.P. Subordinate Education Service Rules, 1992, hereinafter called the ''Rules 1992'. Rule 5 thereof provides that 10 percent of the vacancies on the post of Sub Deputy Inspector of Schools/Assistant Basic Shiksha Adhikari shall be filled up by promotion from amongst the Head Master/Head Mistress of Junior High School having 10 years' experience of service. The petitioner is eligible to be considered for the promotion to the said post under Rules 1992 but by impugned amendment dated 10th April, 2003, by which clause (1) of Rule 54 has been deleted, the petitioner has no chance of promotion, though his case was being considered. Hence this petition.

Learned counsel for the petitioner has submitted that as per the existing Rules, the petitioner had become eligible to be considered for promotion to the post of Sub Deputy Inspector of Schools/Assistant Basic Shiksha Adhikari in 1994 on completing 10 years' service as a Head Master and the impugned amendment had taken away the right accrued to him under the existing law. Petitioner had legitimate expectation for promotion. The amendment suffers from arbitrariness and, thus, liable to be quashed.

Learned Standing Counsel, on the other hand, has submitted that no person has a right to be appointed either by direct recruitment or by promotion, even the petitioner whose name appears in the panel, does not have a right to appointment, and unless the order is communicated to person concerned, it does not become effective. Merely because the petitioner's case was considered under the old existing Rules, the same does not confer any right upon him for appointment/consideration. The State is competent to change the service conditions unilaterally and amend the Rules to make a person ineligible for promotion. Thus, the petition is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.  

Undoubtedly, petitioner has more than 10 years' experience as a Head Master. It is alleged by the petitioner that certain information had been sought from him for considering his candidature for promotion, but the question does arise as to whether any person has a right to appointment and even a candidate whose name appeared in the panel, can claim the appointment as a matter of right and even if appointment is made and the order has not been communicated to the selectee, whether it becomes effective and whether the service conditions of a person can be changed unilaterally to the extent that he may be deprived of the right of the promotion.

Mere inclusion of a candidate's name in the merit list does not confer any right to be selected even if some of the vacancies remained unfilled and in such a situation, candidate cannot claim that he has been given a hostile discrimination. (Vide Shankarsan Dash Vs. Union of India, AIR 1991 SC 1612; Asha Kaul Vs. State of J & K, (1993) 2 SCC 573; Union of India Vs. S.S. Uppal, AIR  1996 SC 2346; Hanuman Prasad Vs. Union of India, (1996) 10 SCC 742; Bihar Public Service Commission & Ors Vs. State of Bihar & Ors., AIR  1997 SC 2280; Syndicate Bank & Ors Vs. Shankar Paul & Ors. AIR 1997 sc 3091; Vice Chancellor, University of Allahabad Vs. Dr. Anand Prakash Mishra & Ors., (1997) 10 SCC 264; Punjab State Electricity Board Vs. Seema, 1999 SCC (L&S) 629; All India SC & ST Employees Association Vs. A. Arthur Jeen, AIR  2001 sc 1851; Vinodan T. Vs. University of Kalikut, (2002) 4 SCC 726 and S. Renuka Vs. State of Andhra Pradesh, AIR  2002 SC 1523).

Thus, it is settled law that even the selected candidate, by mere inclusion of his name in the panel, can not claim any indefeasible right even against the existing vacancies, as State is under no obligation to fill up all or any of the vacancies.

Even if a candidate is appointed and his name is included in the select list, unless the order is communicated to him, he can not claim any right to the post. The Constitution Benches of the Hon'ble Apex Court in Bachhittar Singh Vs. State of Punjab & Anr., AIR 1963 SC 395; State of Punjab Vs. Amar Singh Harika, AIR 1966 SC 1313, have held that an order does not become effective unless it is published and communicated to the person concerned and before the communication, the order can not be regarded as anything more than provisional in character.  

Similar view has been reiterated in Union of India & Ors. Vs. Dinanath Shantaram Karekar & Ors., AIR  1998 SC 2722; State of West Bengal Vs. M.R. Mondal & Anr., (2002) 8 SCC 443.

In Laxminarayan R. Bhattad & Ors. Vs. State of Maharastra & Anr., (2003) 5 SCC 413, the Hon'ble Supreme Court has held that the order of the authority must be communicated for conferring an enforceable right and in case the order has been passed and not communicated, it does not create any legal right in favour of the party.

Thus, in view of the above, it can be held that even an order is passed but not communicated to the party concerned, it does not create any legal right which can be enforced through the Court of Law, as it does not become effective till it is communicated.

So far as the issue of changing the service conditions unilaterally even depriving a person from promotion or reducing the chances of promotion or adversely affecting the future career of an employee is concerned, it is not res integra.

There can be no dispute to the settled legal proposition that promotion is also a sort of appointment. Power to appoint includes the power to prescribe qualification to select suitable officers. It further includes the power to change the eligibility criteria, i.e. the educational qualifications and the same can be changed even for the employee rendering them ineligible for promotion unilaterally for the reason that no employee can claim promotion as indefeasible right. (Vide T. R. Kapoor Vs. State of Haryana, AIR 1987 SC 415; J. Rangaswamy Vs. Government of Andhra Pradesh, (1990) 1 SCC 288 and State of J & K Vs. Shiv Ram Sharma & Ors., AIR  1999 SC 2012).

In K. Jagadeensan Vs. Union of India & Ors., AIR 1990 Sc 1072; the Rules were amended providing for a requisite qualification of engineering for the post of Director (Mining Engineer). The Apex Court held that challenge to such an amendment must fail for the reason that it was for the Government to decide as what qualification was required for promotion to the post of Director  (M.E.) and unless that requisite qualification post was totally irrelevant or unreasonable, it could not be said to be bad in law.

Similar view has been reiterated recently by the Hon'ble Supreme Court in State of Karnataka & Ors. Vs. Mangalore University Non-teaching Employees Association & Ors., (2002) 3 SCC 302, wherein the Apex Court held that the service conditions can unilaterally be altered in conformity with the legal and constitutional provisions.

In Shiv Ram Sharma (supra), the Apex Court had held that it is permissible to the State to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. There is no indefeasible right of the employee to claim promotion to a higher grade to which a different qualification could not be prescribed nor there can be any guarantee that Rules framed by the Government in that behalf would also be favourable to them.

Thus, it is evident that service conditions can be changed by the employer unilaterally even adversely affecting the future rights of the employees.

A person can have a legitimate expectation only in consonance with the statute and the rules framed thereunder and not in contravention of the same. This doctrine cannot be invoked for doing something contrary to law. (Vide A. Mahudeswaran Vs. Govt. of T.N.(1996) 8 SCC 617; Dr. Meera Massey Vs. Dr. S.R. Mehrotra & ors (1998) 3 SCC 88; National Buildings Construction Corporation Vs. S. Raghunathan & ors. (1998) 7 SCC 66; Punjab Communications Ltd. Vs. Union of India & ors(1999) 4 SCC 727; State of West Bengal & ors Vs. Niranjan Singha (2001) 2 SCC 326; State of Bihar Vs. S.A.Hasan (2002) 3 SCC 566; Dr. Chanchal Goyal (Mrs.) Vs. State of Rajasthan (2003) 3 SCC 485; and J.P.Bansal Vs. State of Rajasthan & Anr., (2003) 5 SCC 134.

The doctrine of legitimate expectation has a meaning that the statements of policy or intention of the Government or its Department in administering its affairs should be without abuse or discretion. The policy statement could not be disregarded unfairly or applied selectively for the reason that unfairness in the form of unreasonableness is akin of violation of natural justice. It means that said actions have to be in conformity of Article 14 of the Constitution, of which non arbitrariness is a second facet. Public Authority cannot claim to have unfettered discretion in public law as the authority is conferred with power only to use them for public good. Generally legitimate expectation has essentially procedural in character as it gives assurance of fair play in administrative action but it may in a given case be enforced as a substantive right. But a person claiming it has to satisfy the Court that his rights had been altered by enforcing a right in private law or he has been deprived of some benefit or advantage which he was having in the past and which he could legitimately expect to be permitted to continue unless it is withdrawn on some rational ground or he has received assurance from the decision making Authority which is not fulfilled, i.e. , the kind of promissory estoppel.

Change of policy should not violate the substantive legitimate expectation and if it does so it must be as the change of policy which is necessary and such a change is not irrational or perverse.

In Punjab Communications Ltd. Vs. Union of India & ors., AIR 1999 SC 1801, placing reliance upon large number of the judgments, the Hon'ble Apex Court observed as under:-

"The above survey of cases shows that the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way."

This doctrine being an aspect of Article 14 of the Constitution by itself does not give rise to enforceable right but it provides a reasonable test to determine as to whether action taken by the Government or authority is arbitrary or otherwise, rational and in accordance with law.

But as we find that what has been done by the respondents is permissible in law, the said doctrine is not attracted.

In the last but not the least, shri Patel, learned counsel for the petitioner has submitted that as the petitioner's case was being considered and law does not permit the application of law with retrospective effect, we should issue a direction to the respondents to continue with the process. As petitioner has not stated anywhere in the petition what was the number of the vacancies and when the vacancies occurred and as only persons like petitioner had to be considered to fill up 10% of the vacancies for promotion, we are not inclined to issue any direction. The Court cannot take note of anything beyond the pleadings.

It is settled proposition of law that a party has to plead the case and produce/ adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. (Vide Bharat Singh Vs. State of Haryana, AIR 1988 SC  2181; M/s. Larsen &  Toubro  Ltd.  Vs.  State of Gujarat  & ors., AIR 1998 SC 1608; National  Building  Construction  Corporation Vs. S.  Raghunathan  &  ors., AIR  1998  SC 2779; Ram Narain  Arora  Vs. Asha Rani  &  ors., (1999) 1 SCC 141; Chitra  Kumari Vs. Union  of India & ors., AIR 2001  SC 1237;  State  of U.P.  & ors.  Vs. Chandra  Prakash Pandey, AIR 2001 SC 1298);  National Agricultural Cooperative Marketing Federation of India Ltd. & anr. Vs. Union of India & ors. (2003) 5 SCC 23; Orissa University of Agriculture & Technology & Anr. Vs. Manoj K. Mohanty, (2003) 5 SCC 188              

In   Atul   Castings   Ltd.   Vs. Bawa  Gurvachan  Singh,  AIR 2001 SC 1684, the  Hon'ble  Apex Court observed as under:-    

"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."                        

Similar view has   been reiterated in Vithal N. Shetti  &  Anr.  Vs.   Prakash   N. Rudrakar & ors., (2003) 1 SCC 18.

Thus, it is evident that in absence of pleadings, the Court cannot examine the issue.

Thus, in view of the above, one can reach the inescapable conclusion that the State is competent to alter the service conditions unilaterally which may adversely affect the chances of promotion etc. In absence of proper pleadings, we are not inclined to give any direction to consider the case of the petitioner for promotion as per the law existing earlier.

The petition is de void of any merit and accordingly dismissed.

21.8.2003

AHA/AKSI


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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