judgement:
ivil Appeal No, 1191 of 1990.
From the Judgment and Order dated 15.7.1988 of the Madhya Pradesh High Court in M.P. No. 600 of 1985.
A.K. Sen, A.K. Gupta and N.P. Mahendra for the Appellants.
R.B. Datar, Satish K. Agnihotri, Devender Singh, Ashok Singh and R.B. Misra for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
The controversy in this Special Leave Petition arises out of the merger, with effect from 1.10.1982, of the staff of the Madhya Pradesh Lift Irriga tion Corporation (hereinafter referred to as 'the Corpora tion ') with that of the Irrigation Department of the State Government consequent on the abolition of the Corporation.
We have heard counsel on both sides and we are of opinion that these matters should be disposed of finally even at this 428 stage.
We therefore grant leave in the Special Leave Peti tion and proceed to dispose of the appeal.
Appellants 2 to 17 and certain other writ petitioners in the High Court were serving as Senior Technical Assistants (S.T.A.) in the Corporation.
The cadres of S.T.As. and the lower cadre of Junior Technical Assistants (J.T.As.) in the Corporation were equivalent respectively to the cadres of Junior Engineer (J.E.) and Sub Engineers (S.E.) in the Irrigation Department of the State.
It is common ground that the qualifications for appointment to the two sets of posts were the same and that their pay scales were also the same.
The appellants claim that they are entitled, after the merger of the Corporation into the Irrigation Department, to be treated as Junior Engineers and considered for promotion as Assistant Engineers on completion of two years of service but that this avenue of promotion is being denied to them by the State.
To appreciate the above contention, it is necessary to set out some historical background of the cadres in the State Department.
Initially the Junior Engineer 's post in the State Government was a non gazetted post, governed by the Madhya Pradesh Irrigation Department (Non Gazetted) Service Recruitment Rules, 1969.
The Junior Engineers, on completion of two years ' minimum service, were entitled to consideration for promotion to the gazetted post of Assist ant Engineer, a post governed by the Madhya Pradesh Irriga tion Engineering Service (Gazetted) Recruitment Rules, 1968.
On March 19, 1973 the posts of Junior Engineers were de clared to be gazetted posts.
75% of the posts of Assistant Engineers could be filled up by promotion from amongst Junior Engineers.
On January 1, 1978 the Junior Engineer 's post was once again converted into a non gazetted post.
The quota for such of those Junior Engineers as were working as gazetted officers immediately before the issue of this order was retained at 75% as before for a period of two years by which time it was expected that all of them would get pro moted as Assistant Engineers.
But for this, the posts of Assistant Engineers were to be filled up equally by promo tion from subordinate cadres and direct recruitment.
The promotion quota was distributed among the subordinate cadres in the following proportion: Junior Engineers (Non Gazetted) 25% Overseers (Sub Engineers) 20% Head Draftsman/Draftsman 5% 429 In July, 1979 the Government decided to abolish the post of Junior Engineers in the State Irrigation Department.
The relevant cabinet order set out the following terms there fore: 1.
The posts of Junior Engineer in the three works depart ments should be abolished.
The Junior Engineers presently working in these departments shall continue to work in their existing payscales under the existing service conditions till their promotion.
(emphasis added) 2.
The quota of recruitment for the post of Assistant Engi neer, which is at present 50% should be raised to 75%.
3. 25% posts in the Sub Engineer cadre be converted into selection grade posts and selection for the selection grade post should be made on the basis of merit cum seniority.
The quota prescribed for promotion of the Draftsmen should be reduced from 5% to 3%.
Promotion quota of 2% should be reserved for those Sub Engineers/Draftsmen who obtain degree while in service.
The posts of Junior Engineer cadre, which presently exists, should be converted into the posts of Assistant Engineers and Sub Engineers with the concurrence of the finance department".
Eventually, the State Government decided on 27th May, 1980 that the 941 posts of Junior Engineers in the Irrigation Department should be abolished by converting 658 of those posts into posts of Assistant Engineers and 233 posts into posts of Sub Engineers (Overseers).It must be, however, pointed out that, though the existing posts of J .Es.
or S.Es. stood abolished from 27.5.
1980, in fact, a number of Junior Engineers appointed earlier continued to function as before, under the memorandum of July 1979, until they re ceived promotions as Assistant Engineers (A.Es. ) in due course.
We now come to the details of the merger between the Corporation and the State Department.
In August, 1982 a decision was taken to abolish the Corporation.
The Govern ment decided on the merger the surplus staff of the Corpora tion in the Irrigation Department and 8.10.82 was decided upon as the effective date of merger for purposes.
We are concerned here with the formula for transition set out in the opening para of a memorandum of the above date regarding the 430 merger of the posts of S.T.As.
and J.T.As.
It read thus: "2.
Senior Technical Sectioned posts Nil Assistants The above employees may be Equivalent Post merged in the posts of Junior Engineer Junior Engineers and an (Rs. 360 650) equivalent number of posts may be deemed to have been 27 posts Civil created in the dying cadre Posts Electrical of Junior Engineers.
(Mechanical) posts Geologists post Geophysist 3.
Junior Technical Sanction 30 posts (reserved).
Assistants Equivalent These may be merged against post: (Sub Engineer the posts of Sub Engineers (Rs.280 480) which have been obtained by conversion of the posts of 62 Posts Civil Junior Engineer.
The posts reserved for Scheduled Castes and Scheduled Tribes may be made unreserved and appointments may be made against them also.
" The memorandum of 8.10.1982 was followed up by a commu nication dated 10.11.1982.
The enclosures to this letter described the absorptions as "ad hoc" but this word was deleted on 29.1.
1983 with reference to the posts with which we are concerned, making it clear that the absorption was to be permanent.
The letter set out three conditions for the merger which admittedly are fulfilled by the appellants: (i) The staff will be absorbed only subject to their ful filling the qualifications prescribed for the posts against which they are to be absorbed; (ii) The inter se seniority of the employees of the Corpora tion shall be in accordance with the seniority list cleared by the Managing Director.
The inter se seniority of the departmental employees and the employees of the Corporation shall be determined in accordance with the orders of the Government; and 431 (iii) It was open to an employee of the Corporation to join the Government department or not to do so, for the employees were to be required to join duties at the place of their posting within 20 days from 10.11.
1982, failing which it was to be deemed that the appointment was not acceptable to them.
The seniority rule was announced much later, on 16.4.1984.
It said: "The regular officers/employees of the Corporation shall, in the event of merger in the Irrigation Department, be consid ered as Junior to the permanent officers/employees of the Department and their seniority in the lists of the temporary officers/employees of the department, shall be fixed on the basis of the dates of assuming office, without affecting the inter se seniority of the Corporation".
The result of all this, according to the appellants, was that the S.T.As. of the Corporation became, w.e.f. 8.10./982, J.Es. of the department but their seniority therein was below the J.Es. of the State Department who had been in office in July 1979 and continued to function as such even thereafter.
It is stated that these Junior Engi neers in the Department were being gradually promoted as A.Es.
and it was only sometime in 1983 that the appellants who were at the bottom of the seniority list became eligible for promotion as A.Es.
Their legitimate claims in this regard, it is alleged, were being stalled by the State and so the appellants filed a writ petition in the High Court in 1985.
Sometime later, the appellants allege, it came to light that the State, far from giving the petitioners their legit imate entitlement, was planning a voiteface to upset the whole scheme of merger as envisaged earlier, to the detri ment of the applicants.
This they did, it is said, by issu ing a memo on 1.3. 1986 which read thus: "1.
The State Government amends point No. 2 of paragraph 1 of the orders issued vide Irrigation Department 's Memo No. 22(C)/43/32/P/37 dated 8.10.1982 as follows: 2, Senior Technical ] [ The above employees Assistants ] [ may be absorbed on equivalent to Junior ] [ the post of Sub Engineer (Rs.350 650) ] [ Engineer protecting 432 the pay which they were drawing 27 posts Civil ] [ previously.
Such 34 posts Electrical ] [ absorbed employees shall be eligible for promotion to the posts of A. Es.
from the quota of Graduate Sub Engineers.
These orders shall come into effect from 8.10. 1982.
" This order vitally affected the interests of the appellants in four respects (a) Having been absorbed into the State Department as J.Es.
in 1982, they were suddenly demoted to the post of S.Es.
retrospectively, with the "saving grace" that their pay was protected; (b) Under the seniority rules of 1984 earlier referred to, they were at the bottom of the list of J.Es.
but above the S.Es.
But now they became juniors to all the Sub Engineers of the Department; (c) While previously a substantial quota for promotion from J.Es.
to A.Es.
was applicable to them, the quota now got reduced (as will be explained later) to 4%; and (d) While previously an experience of 2 years was sufficient for their promotion, now they had to have a minimum experi ence of 8 years (as will be seen later).
The combined effect of all this is, it is alleged, that the appellants will become eligible for consideration for promo tion as A.Es.
in the distant future as follows: Year No. of posts available Graduate Sub Engineers quota 1989 1 1997 3 2004 2 2007 1 2008 1 433 In other words, only 8 persons will become eligible at distant dates whereas all of the appellants should have received promotions gradually since 1983 as and when vacan cies occurred.
The appellants contend that this is a great travesty of justice which should be set right by quashing the decision of 1.3. 1986 and restoring the position as it actually prevailed on 8.10.1982 at the time of the merger.
Sri Datar attempted to counter this what prima facie appeared to be a just and reasonable plea with his usual persuasiveness.
He urged that the contentions of the appel lants overlook four important basic facts and that, if these are kept in mind, it will be seen not merely that no injus tice has been done to the appellants but that, in fact, the State has come to their rescue by providing an avenue of promotion where none existed.
These basic facts are, he says: (1) As from 27.5.1980, there was no cadre of junior engi neers at all in the State service.
That cadre had been abolished by the decision of 1979 and the conversion, on 27.5.1980, of the existing posts of J.Es into those of A.Es/S.Es.
(2) There had been an amendment on 27.7.81 to the relevant recruitment rules which made it clear that, after that date at least, there could be no promotions to the posts of A.Es.
from among J.Es.
(3) When the Corporation was abolished in 1982, the State Government could have dispensed with the services of the appellants.
Instead, they considered the appellants ' cases sympathetically and decided to absorb them into the State service.
In doing so, they purported to absorb them as J.Es.
overlooking that, as on 8.10.1982, there was no cadre of J.E. in the State service.
It is this mistake that was rectified on 1.3.1986 by absorbing the appellants as S.Es.
(instead of as J.Es.) but protecting the pay they were drawing.
(4) The petitioners had an option to join or not to join the State service on 8.10.1982 as J.Es.
When they decided to join, they were aware that, according to the rules prevail ing on that date, there was no avenue of promotion for them as A .Es.
The net result of these considerations is, says Sri Datar, that, instead of completely denying the appellants any promotion altogether (as there was no right, under the rules, to any such promotion), 434 the State has, equitably, decided to confer on these offi cers a right of promotion by treating them as S.Es.
This was a generous gesture on the part of the State.
The appellants should have been happy that an avenue for promotion had been opened out to them, instead of being disgruntled on the assumption that their promotion chances had dwindled by the action of the State.
This was the only reasonable way of resolving the impasse that faced the appellants and the authorities.
Since Sri Datar has referred to the rules, it will be appropriate to pause here and notice the relevant service rules and the amendments made thereto: Taking up the Non Gazetted Service Rules of 1969 first, they provided, in Schedule I read with rule 5 for 269 posts of Civil Engineers and 13 posts of Electrical/Mechani cal Engineers in the cadre of Junior Engineers.
Curiously enough these rules appear to have remained unamended not withstanding the decision of 1979 to abolish these posts and the office order of 1980 converting these posts (these appear to have numbered 941 at the relevant time) into A.Es.
or S.Es.
Turning next to the Gazetted Service Rules, the follow ing provisions thereof are relevant: Rules 7.
Method of recruitment (1) Recruitment to the service, after commencement of the rules, shall be by the following methods, viz.: (a) by direct recruitment by selection; (b) by promotion of substantive/officiating member of the M.P. Irrigation Engineering Service (Gazetted);and (c) by transfer of persons who hold in a substantive capaci ty such posts in such services as may be specified in this behalf.
(2) The number of persons recruited under clause (b) or clause (c) of sub rule (1) shall not at any time exceed the percentage shown in Schedule II of the number of duty posts (as specified in Schedule I).
435 (3) Subject to the provisions of these rules, the method or methods of recruitment to be adopted for the purpose of filling any particular period of recruitment, and the number of persons to be recruited by each method, shall be deter mined on each occasion by the Govt.
in consultation with the Commission.
(4) Notwithstanding anything contained in sub rule (1) if in the opinion of the Govt., the exigencies of the service so require, the Govt.
may, after consulting the General Admin istration Department, adopt such methods of recruitment to the service other than those specified in the said sub rule, as it may by order issued in this behalf, prescribe.
Rule 15.
Conditions of eligibility for promotions(1) Subject to the provisions of sub rule (2), the Committee shall consider the case of all persons who on the 1st day of January of that year had completed the prescribed years of service (whether officiating or substantive) in the post/ service mentioned in column 2 of Schedule IV or any other post or posts declared equivalent thereto by the Govt.
as under and are within the zone of consideration, as per subrule (2) (i) Sub Engineers, Head Draftsman/Draftsman to the posts of Assistant Engineers Minimum service of 12 years as Sub Engineers, Head Draftsman/Draftsman.
Provided that a Sub Engineer and Head Draftsman/ Draftsman who has completed a minimum of 8 years ' service and possesses degree in Civi/Electrical/Mechanical Engineer ing from recognised university or qualification declared equivalent thereto by the State Govt., will also be eligible for promotion to the post of Assistant Engineer and will be considered each time just after the zone of consideration and then final selection just will be made from both the groups on the basis of merit.
For example, if ten posts are vacant in the cadre of Asstt.
Engineer to be filled by promotion of Sub Engineer, then 10x5=50 diploma holder Sub Engineers from working list be considered first and thereaf ter the eligible graduate Sub Engineers be considered in the order of their seniority for promotion.
436 (ii) Junior Engineers to the posts of Assistant Engineers minimum service of 2 years as Junior Engineer.
XXX XXX XXX Rule 18.
Select list (1)The Commission shall consider the list prepared by the Committee along with the other documents received from the Govt.
and unless it con siders any change necessary, approve the list.
(2) If the Commission considers it necessary to make any changes in the list received from the Govt.
the Commission shall inform the Govt.
of the changes proposed and after taking into account the comments, if any, as may in its opinion be just and proper.
(3) The list as finally approved by the Commission shall form the select list for promotion of the members of the cadres of Sub Engineers, Head Draftsman/Draftsmen, Research Assistant and Junior Engineers of the M.P. Irrigation Engi neering Service or its higher cadres, as the case may be.
(4) The selectee list shall ordinarily be enforced until it is reviewed or revised in accordance with sub rule (4) of rule 16, but its validity shall not be extended beyond a total period of 18 months from the date of its preparation: Provided that, in the event of a grave lapse in the conduct of performance of duties on the part of any person included in the select list, a special review of the select list, may be made at the instance of the Govt.
and the Commission, may, if it thinks fit, remove the name of such person from the select list".
(underlining ours) Schedule I to the rules specified the number of posts in each cadre.
So far as Assistant Engineers (Class II) are concerned, the number of posts is put at 329 (253 permanent and 76 temporary) in the Civil Branch and 36 (22 permanent and 14 temporary) in the Electrical & Mechanical Branch.
The description and contents of the relevant columns of Schedule II have to be set out a little more meticulously.
They read: 437 Name Name Total No. M.P. Irrigation Engg.
of of of duty Service (Gazetted) Deptt.
service post P.T.T percentage of the number of duty posts to be filled in By direct By promo By transfer recruitment non of the of persons substantive from other service members of the service [vide [vide [vide rule rule rule 7(a)] 7(b)] 7(c)1 (1) (2) (3) (4) (5) (6) Civil AE, Class 253 76 329 50 50 25% by promotion Irriga II of JEs tion 20% by promotion Deptt. of SEs (previously Overseers) 5% by promotion of Head Draftsman/ Draftsmen Elec do 22 34 36 50 50 As for A.E. trical & Mecha nical Branch (underlining ours) Schedule IV says that J.Es.
(Class III) with minimum experi ence of two years as well as S.Es. and Head Draftsmen/Draftsmen with 12 years ' experience (8 years in the case of degree holders) will be eligible for promotion as A.Es.
(Class II) on selection by a departmental committee constituted as specified therein.
The interesting feature regarding the amendments of 1981 relied upon by Sri Datar is that they left the rules quoted above and Schedules I & IV untouched.
They only amended Schedule II in two respects: (1) In the heading of column 5, the words "By promotion" were 438 substituted for the words "By promotion of substantive members of the service [vide rule 7(b)]".
(2) The figures in columns 4 and 5 were substituted by the following in respect of both the Civil Branch and the Elec trical/ Mechanical Branch: (4) (5) 60 40 33% by SEs.
who are diploma holders; 4% by SEs./Draftsmen who are Engineering Graduates; 3% by Draftsmen/Head Draftsmen who are not Engineering Graduates.
We have considered the submissions of the parties in the light of the above rules and amendments and come to the conclusion that there is force in the contention of the appellants that they are eligible for promotion as AEs.
in the same manner as the erstwhile JEs.
of the Irrigation Department.
The assumption of the respondents that the cadre of JEs.
had ceased to exist long before the absorption of the present appellants into the Department is incorrect.
As pointed out earlier, though the decision to abolish the cadre was taken in 1979 and the existing posts were convert ed into those of AEs./SEs.
on 27.5.
1980, the cadre did not die, for the JEs.
of the Department who were then function ing continued to function as before until they were promoted in due course as AEs.
It is also not correct to say that this crucial "fact" had been overlooked at the time of passing the merger order of 8.10.1982.
On the contrary, the State was fully conscious of its earlier decision and the order of 8.10.1982 specifically mentions that the posts of STAs.
will be merged in the posts of JEs. "and an equivalent number of posts may be deemed to have been created in the dying cadre of Junior Engineers".
These words make it per fectly ,clear that the cadre of YEs.
was "dying" (but not dead) and the strength of the dying cadre was further enliv ened by taking in the STAs.
of the Corporation as JEs.
Thus, the position is that, as on 8.10.82, the cadre of JEs.
continued to subsist and comprised of the old JEs.
of the Irrigation department and the STAs.
engrafted from the Corporation.
This conclusion is reinforced by the interest ing circumstance that the refe 439 rence in Schedule I of the Non Gazetted Service Rules to JEs.
was not omitted despite the decisions of 1979 and 1980.
It is true that the number of these posts was mentioned as 269 in the Civil Branch and 13 in the Electrical & Mechani cal Branch.
But the actual number had far exceeded these without a corresponding amendment in the Schedule.
This, however. is inconsequential.
Rule 6 of these Rules is in the following terms: Rule 6.
Method of recruitment (i) Recruitment to the service, after the commencement of these rules, shall be by the following methods, viz. (a) by direct recruitment, by Selection/by Competitive Examination as shown in Schedule II, (b) by promotion of substantive/officiating members of the service (as shown in the Schedule IV), and (c) by promotion of persons who hold in a substantive capac ity such posts in such services as may be specified in this behalf.
(ii) The number of persons recruited under clauses (b) and (c) of sub rule (1) of the rule 6 shall not at any time exceed the percentage shown in the Schedule II.
(iii) Subject to the provisions of these rules, the method/methods of recruitment to be adopted for the purpose of filling any particular vacancy/vacancies in the Service as may be required to be filled during any particu lar period of recruitment, and the number of persons to be recruited by each method, shall be determined on each occa sion by the appointing Authority.
(iv) Notwithstanding anything contained in sub rule (i) if in the opinion of Engineer in Chief/Chief Engi neer, the exigencies of the service so require, the said Engineering Chief/Chief Engineer, may after consulting the Govt., may adopt such methods of recruitment to the service other than those specified in the said sub rule, as he may, by order issued in this behalf, prescribe.
Rule 6(iv) read with the Schedule I clearly empowered the Govern_ 440 ment, in the exigencies of the situation, to continue the cadre for limited purposes and augment the same by the number of STAs.
absorbed from the Corporation.
We have, therefore, no hesitation in holding that, on the terms of the relevant rules as well as on the language of the order of 8.10.1982, the appellants, viz. STAs.
absorbed from the Corporation were constituted as a part of the cadre of J.Es., placed on complete par with the JEs.
of the depart ment already in service and given the same promotional eligibility and opportunities as the latter.
Counsel for the State contends that this conclusion would directly run contrary to the rules of the Gazetted Service particularly after their amendment in 1981 and that, after the date of said amendment, no AE could be recruited by promotion from among JEs.
The objection on this account is two fold.
The first, not clearly articulated by counsel, is that rule 7(b) permits recruitment by promotion only from among the members of the service and that a Non Gazetted JE is not eligible for promotion.
The second is that, after the 198/amendment, JEs have been excluded as one of the sources of recruitment by promotion.
We shall deal with these two objections one after another.
It is true that rule 7(b) of the Gazetted Service Rules of 1968 provides only for JEs belonging to the said service being promoted as AEs.
However, when the JE 's post became a non Gazetted one in 1978, the relevant Government orders made it clear that AEs will be recruited by promotion from among JEs to the extent of 25% out of the 50% quota avail able for promotion.
The Schedule clearly mentioned this.
As it also mentioned SEs and Head Draftsman as other sources from which promotion could be made, the reference to JEs was also clearly to the non Gazetted JEs.
Promotion of Gazetted JEs had been separately provided for as before.
Thus, under the Schedule, non Gazetted JEs were also clearly eligible for promotion despite the restriction in rule 7(b).
This inconsistency between the Schedule and the rule was appar ently noticed only in 1981 and the heading of Column 5 of Schedule I1 was amended to make it clear that the promotions therein referred to were from the non Gazetted service, although rule (b) was left unamended.
The omission to amend rule 7, however, is not of much significance.
It was open to the State, in view of rule 7(4), to promote members of the non Gazetted Services also to the Gazetted Service to the extent of a prescribed quota.
The restricted language of rule 7 cannot, therefore, be construed in such a way as to render redundant the specific provision in the Schedule entitling several persons from the non Gazetted services to promotion.
441 It is then argued that, at any rate, after the amendment of the relevant columns of Schedule 1I in 1981 there is no right in any J.E. to claim promotion as A.E. At least from that date, the promotional avenue for J.Es.
stands abol ished, claims Sri Datar.
Sri Ashok Sen, for the petitioner, contended that the petitioners having been given a right, at the time of absorption in 1982, that they will be eligible for promotion in the same way as the erstwhile J.Es. of the State Department, this right cannot be taken away by invok ing an earlier amendment of the rule.
He cited some authori ties in support of the proposition and pointed out that the petitioners had amended the original writ petition to in clude a prayer for quashing the amendment purportedly ef fected on 27.7.81.
On the other hand, Sri Datar contends that no employee has a vested right to promotion and that it was in law open to the Government to change the conditions of service so as to take away a right to promotion that may have existed earlier.
But, he pointed out, so far as the petitioners were concerned, there was no taking away of any right to promotion at all because, even as on 8.10.82 when they claim to have become J.Es., the rules provided for no promotional avenue at all and none was promised to them either by the order dated 8.10.82.
We do not think it is necessary for us to express any views on the question whether an amendment taking away the rights of promotion earlier available to a cadre of employ ees is constitutionally valid.
We shall proceed on the assumption, as contended by the State, that this is permis sible and that the effect of the amendment is that, on and from 27.7.81, no A.E. can be recruited, under the amended Schedule, from among the J .Es.
Assuming this to be correct, this rule should apply to all the J.Es.
in the "dying cadre".
It is seen from the records placed before us that such of the J.Es.
belonging to this cadre as had been in service with the State Department have continued to get their promotions even after the 1981 amendment.
This is clear from the gradation list filed by the appellants which shows that three Junior Engineers were promoted as AEs.
on 17.8.83.
Further, the specific averments to this effect in the affidavits filed on behalf of the petitioners at various stages have not been denied.
The petitioners have also placed on record an order dated 18.10.1985 which shows that a J.E. of the State Department in the Electrical & Mechani cal Branch (perhaps the last of that category) was promoted as A.E.
If this be so, then, clearly, the Department cannot discriminate as between officers belonging to the same cadre by promoting some of them and denying promotion to others.
Sri Datar emphasised that the J.Es.
belonging to the State service had a right of promotion earlier and this was coti nued even after 442 the amendment whereas the appellants became J.Es.
at a time when there was no further promotion available to them and that this makes all the difference.
This argument runs somewhat contrary to the earlier argument of counsel that the amendment of 1981 should be treated as applicable to all claims for promotion after 27.7.81 and that the State is at complete liberty to deny promotion after that date even in respect of those who may have earlier had a right to such promotion.
But even assuming that the distinction now sought to be pointed out by him marks a difference between the two categories of J.Es.
on the cadre as on 8.10.82, a discrimi nation between them would be totally arbitrary and contrary to the scheme of absorption envisaged in 1982.
It cannot be presumed that the State, when it absorbed the S.T.As.
into the dying cadre of J.Es., was unaware that (though, since 1981, there were no promotional avenues for J.Es.
as A.Es.
under the rules) the incumbents of that cadre were entitled to such promotion under the cabinet orders dated 5.7.79.
The order of 8.10.82 places the absorbed S.T.As.
into that "dying" cadre by creating fictionally an equal number of_posts to accommodate the persons so absorbed.
The inten tion and effect of the order of 8.10.82 was to grant to all the S.T.As.
so absorbed exactly the same status as was enjoyed by those already in the cadre.
In other words, if the J.Es.
already existing in the cadre has a right of promotion, as on 8.10.82, the new incumbents were also given that right; and if they had none after 27.7.198 1, the new incumbents would have none either.
The State has admittedly proceeded on the footing that, despite the 1981 amendment, the J.Es. from the State Department were eligible for promo tion; in fact, they have been promoted since 1979 as A.Es.
as and when vacancies arose.
This being so, any differential treatment of the absorbed S.T.As. would clearly be discrimi natory and unconstitutional.
In interpreting these rules and Government orders, one should bear in mind that the promo tional stipulations in Schedule II should be read in the light of rule 7(4) which permits a wide latitude to the Government in making recruitments, by way of promotion, even otherwise than in the manner outlined in rule 7(1).
Reading the rules and the Government orders issued from time to time harmoniously, the effect of the cabinet order of July, 1979 was that all J. Es., in position as such, should continue to be promoted until all of :hem became A.Es.
It is no doubt somewhat difficult to see how after 27.7.81, only a part of the pattern of recruitment in vogue earlier could stand side by side with that introduced on that date.
One could have ' understood a stand on the part of the State that, as and from that date, promotions would be limited only to the new feeder categories and would not be available to any J.E. at all.
But if the subsequent variation of 1981 did not over ride this benefit extended to the former State 443 J.Es.
and has not been understood as having done so and the pattern of promotion indicated in the amendment of 1981 was subject to the right of such J.Es.
in the cadre for promo tion as per the cabinet order of 1979, it is difficult to see how a different rule could be applied to the S.T.As.
Who have been absorbed to augment that cadre.
The truth of the matter is that, when abolition of the cadre of J.Es.
was thought of, the State decided that this should not effect the existing J.Es.
and their promotional chances.
Again, when the merger of the Corporation and State services was thought of, the decision was that the S.T.As. should be placed on a par with the J.Es. of the State service and that the J.T.As. should be placed on par with the S.Es.
This was a conscious and equitable decision (for, as is common ground, the post of S.T.A was equivalent to J.E.) and to go back upon it has resulted in arbitrary discrimination against the appellants.
By the decision of 1986, they lose their status as J.E. (and are equated to S.Es.
which is the status also accorded to the JTAs, their subordinates in the erstwhile Corporation), they lose their right to promotion, they lose seniority by being placed at the bottom of the S.Es. of the State service and the promotional quota now allotted to them is illusory.
It is true that they had volunteered for absorption as JEs.
in 1982, a date when there was no promotional avenue to a JE under the rules.
But they did so because they were told that they would be placed on part with the J.Es.
in the State service and never imag ined that they would be denied promotion on the basis of the amended rules while the JEs in the State service continued to get promotions despite the amendment.
The fact that they opted for the, State service does not, therefore, entitle the State to treat them differently from the JEs of the State service.
We have, therefore, no doubt in our minds that gross injustice has been done to the appellants by the subsequent decision of the State Government.
We, therefore, quash the decision of 1.3.86 and direct that the appellants will be entitled to be considered for promotion as A.Es.
in the same manner and to the same extent as the J.Es.
of the State service have been considered and not on the basis of the percentages prescribed for S .Es.
under the amended rules.
In the view taken by us that the rules and the amend ment therein do not override the effect of the orders of 5.7.1979 and 8.10.82, it is not necessary for us to pro nounce any opinion on the validity of the 1981 amendment to the Rules.
The appeals succeed to the extent indicated above.
There will be no order as to costs.
R.S.S. Appeals allowed.

summary:
In August 1982 the Government of Madhya Pradesh decided to abolish the Madhya Pradesh Lift Irrigation Corporation.
It was also decided to merge the surplus staff of the Corpo ration in the equivalent posts of the Irrigation Department of the State Government.
Accordingly, with effect from 8.10.1982 the appellants, who were serving as Senior Techni cal Assistants (S.T.As.) in the Corporation, became Junior Engineers in the Irrigation Department but their seniority therein was fixed below the erstwhile Junior Engineers of the State Department.
For this purpose, an equivalent number of posts were deemed to have been created in the dying cadre of Junior Engineers.
Similarly, the Junior Technical Assist ants in the Corporation were absorbed in the lower cadre of Sub Engineers.
The Junior Engineers of the State Department on comple tion of two years ' service as Junior Engineers, were enti tled to be considered for promotion to the gazetted post of Assistant Engineers.
Sometime in 1984, the appellants who were at the bottom of the seniority list of Junior Engineers became eligible for promotion as Assistant Engineers.
Their legitimate claims in this regard were being stalled by the State, and so the appellants filed a writ petition in the High Court of Madhya Pradesh in 1986.
Later, the whole scheme of merger, as envisaged in the order dated 8.10.1982, was sought to be upset to the detri ment of the appellants, and towards that end the order issued on 8.10.
1982 was amended on 1.3.1986.
The effect of this amendment was that the Senior Technical Assistants were to be absorbed in the lower posts of Sub Engineers retro spectively with effect from 8.10.82.
The amendment however, provided that they shall be eligible for promotion to the posts of Assistant 425 Engineers from the quota of Graduate Sub Engineers.
This amendment vitally affected the interests of the appellants in so far as their status and chances of promotion were concerned.
Having failed before the High Court, the appellants have come to this Court by way of special leave.
Before this Court it was contended on behalf of the appellants that they having been given the right at the time of absorption in 1982 that they will be eligible for promo tion in the same way as the erstwhile Junior Engineers of the State Department, this right could not be done away by invoking an earlier amendment of the rules.
On behalf of the respondent State it was inter alia contended that (1) the decision of the State Government to absorb the appellants as Junior Engineers had overlooked the fact that on 8.10.1982 there was no cadre of Junior Engi neers because that cadre had been abolished in July 1979, and therefore this mistake was rectified on 1.3.1986 by absorbing the appellants in the lower cadre of Sub Engi neers;.(2) the appellants when they opted to join as Junior Engineers were aware that according to the rules prevailing on that date there was no avenue of promotion for them as Assistant Engineers; (3) after 27.7.81 the relevant recruit ment rules had been amended which made it clear that after that date there could be no promotion to the posts of As sistant Engineers from amongst Junior Engineers; and (4) the Junior Engineers belonging to the State Service had a right of promotion earlier and this was continued even after the amendment whereas the appellants became Junior Engineers at a time when there was no further promotion available to them and this made all the difference.
Allowing the appeal, this Court, HELD: (1) The assumption of the respondents that the cadre of Junior Engineers had ceased to exist long before the absorption of the appellants into the Department is incorrect.
Though the decision to abolish the cadre was taken in 1979 and the existing posts were converted into those of Assistant Engineers/sub Engineers on 27.5.1980, the cadre did not die, for the Junior Engineers of the Depart ment who were then functioning continued to function as before until they were promoted in due course as Assistant Engineers.
[438E F] (2) It is also not correct to say that this crucial fact had been overlooked at the time of passing the merger order of 8.10.82.
On the 426 contrary, the State was fully conscious of its earlier decision and the order of 8.10.82 specifically mentions that the posts of Senior Technical Assistants will be merged in the posts of Junior Engineers and an equivalent number of posts shall be deemed to have been created in the dying cadre of Junior Engineers.
[438F G] (3) Rule 6(iv) of the Non Gazetted Service Rules, read with Schedule I, clearly empowered the Government, in the exigencies of the situation, to continue the cadre for limited purposes and augment the same by the number of Senior Technical Assistants absorbed from the Corporation.
[439H; 440A] (4) On the terms of the relevant rules as on the lan guage of the order of 8.10.1982, the appellants, viz. Senior Technical Assistants absorbed from the Corporation were constituted as a part of the cadre of Junior Engineers, placed on complete par with the Junior Engineers of the department already in service and given the same promotional eligibility and opportunities as the latter.
[440A B] (5) It was open to the State, in view of rule 7(4) of the Gazetted Service Rules of 1968, to promote members of the non gazetted services also to the Gazetted Service to the extent of a prescribed quota.
The restricted language of rule 7, cannot therefore, be construed in such a way as to render redundant the specific provision in the Schedule entitling several persons from the Non Gazetted services to promotion.
[440G H] (6) In interpreting these rules and Government orders one should bear in mind that the promotional stipulations in Schedule II should be read in the light of rule 7(4) which permits a wide latitude to the Government in making recruit ments, by way of promotion, even otherwise than in the manner outlined in rule 7(1).
Reading the rules and the Government orders issued from time to time harmoniously, the effect of the cabinet order of July 1979 was that all J.Es., in position as such, should continue to be promoted until all of them became Assistant Engineers.
[442F G] (7) It is seen from the records that such of the Junior Engineers, belonging to the cadre as had been in service with the State Department have continued to get their promo tions even after the 1981 amendment.
If that be so, then, clearly the Department cannot discriminate as between offi cers belonging to the same cadre by promoting some of them and denying promotion to others.
A discrimination between them would be totally arbitrary and contrary to the scheme of absorption envisaged in 1982.
[441F G; 442B] 427 (8) The truth of the matter is that, when abolition of the cadre of Junior Engineers was thought of, the State decided that this should not affect the existing Junior Engineers and their promotional chances.
Again, when the merger of the Corporation and State services was thought of, the decision was that the Senior Technical Assistants should be placed on par with the Junior Engineers of the State Service.
This was a conscious and equitable decision and to go back upon it has resulted in arbitrary discrimination against the appellants.
By the decision of 1986, they lose their status as Junior Engineers (and are equated to Sub Engineers, which is the status also accorded to the Junior Technical Assistants, their subordinates in the erstwhile Corporation), they lose their right to promotion, they lose seniority by being placed at the bottom of the Sub Engineers of the State services, and the promotional quota now allot ted to them is illusory.
[443B D] (9) Gross injustice has been done to the appellants by the decision of 1.3.1986.
This decision is therefore quashed.
Accordingly, the appellants will be entitled to be considered for promotion as Assistant Engineers in the same manner and to the same extent as the Junior Engineers of the State service have been considered and not on the basis of the percentages prescribed for Sub Engineers under the amended rules.
[443F G]


judgement:
vil Appeal Nos. 1274 to 1278 of 1984.
From the Judgment and Order dated 27.5.81 of the Punjab and Haryana High Court in R.F.A. Nos.
688 to 692 of 1979.
Rajinder Sachar and K.C. Dua for the Appellants.
S.P. Goel, Rana Ranjit Singh and Mahabir Singh for the Respondents.
The Judgment of the Court was delivered by RAY, J.
These appeals on special leave are directed against the judgment .and order dated May 27, 1981 passed in R.F.A. Nos.
688 to 592 of 1979 and 1112 of 1979 by the High Court of Punjab and Haryana at Chandigarh.
The short ques tion raised in these appeals is whether the appellants are entitled to any compensation 'for nursery plants existing on the land at the time of acquisition as well as at the time of notification published under Section 4 of the Land Acqui sition Act, 419 1894.
Secondly, whether the valuation made in respect of the mother plants is low and the same needs to be increased in accordance with the report of the Horticulture Expert.
The facts of these appeals in short, are as follows.
A notification under section 4 of the Land Acquisition Act, 1894 was published on March 24, 1971 for acquisition of the lands in question in village Faridabad, Hadbust No. 123, Tehsil Ballabgarh, District Gurgaon for a public purpose viz. for planned development of residential sector No. 19 by the Haryana Government.
Thereafter, a declaration under Section 6 of the said Act was published vide Notification No. LAC 71/NTLA/376 dated January 18, 1972 in Haryana Gov ernment Extraordinary Gazette.
The Government declared that the Government was satisfied that the said land was needed at public expenses for a public purpose namely for the planned development in the area of this village Faridabad.
Thereafter a notice under Section 9 and 10 was issued call ing upon the owners and other interested persons to file their claims in respect of the interest in the land and also other particulars as regards their claims for compensation for such interest.
The owners of the land and other inter ested persons filed their claims demanding compensation for the land @ Rs.35 per sq.
and also claimed compensation for the nursery plants and potted plants in the land ac quired.
The Land Acquisition Collector awarded compensation in respect of the land acquired @ Rs.900 per Biswa.
The Land Acquisition Collector held that the mother plants and trees were irremovable and as such he assessed the value thereof at Rs.2,41,576.
He also awarded the shifting charges for the shifting of potted plants amounting to Rs. 1,773.20 paise together with compulsory charges @ 15% of the amount award ed.
This award was made by the Land Acquisition Collector on February 22, 1975.
The possession of the acquired land was taken by the Government.
The Land Acquisition Collector also granted six months ' time or any such further period as extended by the Government to enable the appellants to remove the nursery plants as well as the potted plants from the acquired land.
The Collector further stated in the award that the nursery plants can be removed from the land and the same be sold by the owners to the customers.
So no compensa tion was awarded in respect of these plants as well as in respect of the potted plants.
The appellants filed five claim petitions being Petition Nos.
191/85 to 195/85 of 1973/78 in the Court of the Addi tional District Judge, Gurgaon.
The 2nd Additional District Judge, Gurgaon after hearing 420 the parties and also considering the evidences enhanced the rate of compensation of the acquired land (C) Rs. 10 per sq.
It has also been held that the appellants will be enti tled to double the compensation for trees and plants as given by the Land Acquisition Collector.
He also ordered that the appellants shall be entitled to solatium at the rate of 15% on the enhanced amount of compensation on these two items.
In all other respects the impugned order made by the Land Acquisition Collector was upheld.
He further or dered that the appellants will be entitled to recover inter est @ 6% from the date of compensation to the date of reali zation of the enhanced amount to be paid to them and the appellants shall also be entitled to recover the proportion ate costs of the petitions from the Government.
The appellants filed R.F.A. Nos.
688 to 692 of 1979 in the High Court of Punjab and Haryana.
The High Court fixed the value of the acquired land considering the potentiality of the land @ Rs. 16 per sq.
The total area of the land acquired in these appeals being 11.38 acres, at the rate of Rs. 16 per sq.
the value of the land acquired comes to Rs.8.8 lakhs.
The Land Acquisition Collector awarded a sum of Rs.2,41,576 for the trees, which value had been doubled by the Court below.
The High Court held that no case was made out for doubling the value of the trees in the evidence recorded before remand.
It has been further observed by the High Court that the appellants ' own case was that most of their income was from potted plants, flowers and nursery plants, the potted plants gave the maximum income, as was shown by the vouchers produced by the appellants on record.
The potted plants had been taken away by the appellants after acquisition.
Similar was the position of nursery plants.
The High Court, therefore, held that the value awarded by the Land Acquisition Collector would be for the trees and since no justification was made, the Court below was in error in doubling the value of the trees.
The High Court, therefore, valued the acquired land at the enhanced rate of Rs. 16 per sq.
, for the trees the compensation awarded by the Land Acquisition Collector was directed to be paid to the appellants and the enhancement awarded in re spect of trees by the Court below was set aside.
It was further ordered that the appellants would be entitled to solatium at the rate of 15 per cent and interest at the rate of 6% per annum from the date of taking of possession till payment thereof.
The appeals were thus disposed of.
Against this judgment and decree passed in R.F.A. Nos.
688 to 692 of 1979, the appellants filed five Special Leave Petitions before this Court.
On February 27, 1984 this Court granted Special Leave 421 confined only to the compensation for mother plants and nursery plants.
Mr. Rajinder Sacbar, learned counsel appearing on behalf of the appellants has made two fold submissions before this Court.
His first submission is that the Land Acquisition Collector as well as the Courts below were wrong in not granting any compensation for the nursery plants.
Nursery plants were grown in the nursery on the acquired land for the purpose of rearing them for a certain period and there after selling those plants to the customers on taking out the same from the nursery.
There has been an inspection and a list was prepared of the various varieties of fruits and flower plants existing on the acquired land at the time of acquisition.
He further submitted that the value of these various plants has been assessed by Shri Som Dutta Diwan, Deputy Director, Horticulture/Vegetable, Haryana, Chandi garh, who was requested to assess the value of all sorts of trees.
Copies of the assessment made by him had been filed before the Land Acquisition Collector and it will be evident from the said assessment lists that each variety of trees has been assessed separately with reference to the total number of those trees.
It has been submitted by Mr. Sachar in this connection that these nursery plants if taken out of the land will die after two three days.
The appellants have got no other land where they could plant these plants and keep them alive.
It has, therefore, been submitted by him that the High Court was wrong in refusing to assess the value of the nursery plants and to award compensation in respect of the same.
Mr. Sachar next submitted that the compensation awarded with regard to the mother trees by the Land Acquisition Collector has been made arbitrarily without reference to the market price of these trees.
It has been further submitted by referring to the judgment and order of the 2nd Additional District Judge, Gurgaon that the 2nd Additional District Judge held that the.
appellants were entitled to double the compensation under the head 'value of trees and plants ' as assessed by the Land Acquisition Col lector.
The High Court arbitrarily and wrongly rejected this on the mere ground that there was no justification for doubling the compensation as awarded by the Land Acquisition Collector in respect of the mother trees and plants.
It has, therefore, been submitted by Mr. Sachar that the amount of compensation awarded by the Land Acquisition Collector in respect of the mother trees should be doubled and the com pensation for the nursery plants should also be assessed on the basis of the value of the plants as assessed by the Deputy Director of Horticulture.
422 Mr. S.P. Goel appearing for the respondent State has submitted that the land acquired was not treated as an agriculture land in assessing the market value of the same.
It has been taken as urban land and considering its potenti alities, the High Court assessed the value of the land @ Rs. 16 per sq.
In such circumstances, the value of the land being assessed on considering its potentiality, the question of valuation of the mother trees as well as of the nursery plants does not at all arise.
The valuation of the mother trees can at best be assessed at the value assessed by the Land Acquisition Collector.
There is, therefore, no ground for interference with the amount of compensation awarded by the Land Acquisition Collector and upheld by the High Court.
It has been next submitted by the learned counsel for the State that the nursery plants are planted and grown for the purpose of selling the same to the customers after taking them out from the land.
These nursery plants are never planted for the purpose of growing them into big trees or mother plants.
The High Court has rightly held that like the potted plants these nursery plants can easily be removed from the nursery as the purpose of growing these plants is to sell the same to the customers.
These plants can be removed and sufficient time had been granted by the State by permitting the appellants to remove these plants from the acquired land.
It has, therefore, been submitted that the High Court has rightly rejected the claim of the appellants for compensation in respect of the nursery plants.
We have considered in depth the arguments advanced by the learned counsel for both the parties and we have also considered very carefully the weighty reasonings given by the High Court as well as by the Land Acquisition Collector.
It is obvious that the land acquired though agriculture land was taken for assessment of its market value not as agricul ture land but as land with high potentialities i.e. as urban land and, therefore, the market value of these lands has been fixed after considering its potential value @ Rs. 16 per sq.
The appellants did not at all dispute this value and on the other hand they withdrew the entire compensation award for the value of these lands.
In these circumstances, we find that there is much substance in the submissions made on behalf of the State that the mother trees should be valued as wood and the value has been rightly assessed as such by the Land Acquisition Collector in his award and the same has been upheld by the High Court.
Moreover, the find ings of the Collector that the nursery plants can be taken out of the land and sold to the customers like potted plants and as such no compensation can be awarded is in our consid ered opinion quite in accordance with law.
In these cir 423 cumstances, we do not find any infirmity or arbitrariness in the findings arrived at by the High Court and as such there is no merit in the contentions made on behalf of the appel lants in these appeals.
We, therefore, uphold the findings of the High Court and dismiss the appeals without any costs.
P.S.S Appeals dis missed.

dataset_name: IN-Abs

summary:
The appellants ' land was acquired under the Land Acqui sition Act on March 24, 1971 for planned development as residential area.
They were then running a plant nursery on the said land.
A large number of potted plants, mother plants and trees also existed there.
They demanded compensa tion for the land at the rate of Rs.35 per sq.
They also claimed compensation for nursery plants, potted plants mother plants and trees.
The Land Acquisition Collector awarded compensation in respect of the land at the rate of Rs.900 per Biswa.
He held that the mother plants and trees were irremovable and as such assessed the value thereof at Rs.2,41,576.
He also awarded charges for the shifting of potted plants.
In re spect of the nursery plants he took the view that the appel lants were not entitled to any compensation as these could be removed from the land and sold.
The District Judge enhanced the rate of compensation for the acquired land at the rate of Rs. 10 per sq.
and also doubled the compensation for trees and mother plants.
The High Court considering the potentiality of the acquired land fixed its value at the rate of Rs. 16 per sq.
It took the view that the court below was in error in doubling the value of the trees as no case was made out in the evidence recorded and therefore set aside the enhance ment.
In these appeals by special leave it was contended for the appellants that the nursery plants if taken out of the land would die after two three days and the appellants had got no other land where they could plant them and keep them alive.
It was further contended that the compensation with regard to mother trees had been awarded with 418 out reference to their market price and that the High Court had arbitrarily rejected the enhancement in the said compen sation granted by the District Court.
Dismissing the appeals, the Court, HELD: 1.
The finding of the Land Acquisition Collector that the nursery plants could be taken out of the land and sold to the customers like potted plants and as such no compensation could be awarded was quite in accordance with law.
Sufficient time had been granted by the State by per mitting the appellants to remove these plants from the acquired land.
Their claim was, therefore, rightly rejected by the High Court.
[422G H, D E] 2.
The land acquired though agricultural land was taken.
for assessment of its market value @ Rs. 16 per sq.
not as agricultural laud but as laud with high potentialities i.e. as urban laud.
The appellants did not at all dispute this value.
On the other hand they withdrew the entire compensation award for the value of these lands.
In these circumstances, it could not be said that the value of mother trees has been wrongly assessed as wood.
The appellants were, therefore, not entitled to enhancement In the value of trees.
[422F G]


judgement:
ivil Appeal No. 3607 of 1989.
From the Judgment and Order dated 25.4.88 of Central Administrative Tribunal Hyderabad in T.A. No. 1185/86.
R. Venkataramani, V.G. Pragasam and S.M. Garg for the Appellant.
Kapil Sibal, Additional Solicitor General, B. Datta, Mrs. Indra Sawhney, Ms. Sushma Suri, B. Rajeshwar Rao, Vimal Dave and C.V. Subba Rao for the Respondents.
446 The Judgment of the Court was delivered by KANIA, J.
This is an appeal by special leave against a decision of the Central Administrative Tribunal, Hyderabad in Transfer Application No. 1185 of 1986 (W.P. NO. 8226 of 1985).
All the relevant facts have been set out by the Tribunal in its judgment.
As we are in agreement with the reasoning and conclusions of the Tribunal in the impugned judgment, we propose to set out only the brief facts necessary for the disposal Of the appeal.
Under the relevant rules, the recruitment to the post of Superintending Mechanical Engineer was by promotion and failing that by direct recruitment.
It may be mentioned that for direct recruitment to the said post, the qualifications of a degree in Mechanical or Automobile Engineering was prescribed as essential.
For promotion to the post of Direc tor (M.E.) the requisite qualification was five years 01 ' service in the grade of Mechanical Engineer (Senior).
The appellant became eligible for promotion in 1978, but he was not promoted as there were some senior persons in his grade, who were promoted to the said post.
On January 31, 1984, a Notification was issued by respondent No. 1, amending the said Rules and the said Notification was duly published in the Gazette of India.
By the said amendment, the said Rules were amended and it was prescribed that for promotion to the post of Director (M.E.) a degree in Engineering was a requi site qualification.
The appellant challenges the validity of this Notification on the ground that it affected his chances of promotion or alternatively his right to be considered for promotion to the post of Director (M.E.).
The appellant is a Mechanical Engineer (Senior) in the Geological Survey of India, Southern Region, Hyderabad.
The appellant is a diplo ma holder and does not hold any degree in engineering.
On April 27, 1964 he was appointed as Transport Officer (Class I Technical Grade, Gruop 'A ').
This post was redesig nated and merged with the post of Mechanical Engineer (Junior) in March 1968.
On November 28, 1969, the Geological Survey of India (Group 'A ' and Group 'B ' Posts) Recruitment Rules, 1967, made under Article 309 of the Constitution were brought into force.
The appellant was promoted as a Mechani cal Engineer (Senior) with effect from March 17, 1973 and his conditions of service were governed by the aforesaid rules.
These rules have been amended from time to time.
It was submitted by learned counsel for the appellant that the said amendment purported to be carried out by the said Notification was bad in law as it adversely affected a condition of service relating to promotion.
It was submitted 447 by learned counsel for the appellant that if the rule, requiring a degree qualification for promotion to the post of Director (M.E.), was applied as far as the appellant was concerned, it would amount to giving a retrospective effect to the operation of the said rule and no retrospective rule could be framed under Article 309 of the Constitution.
This contention was rejected by the Tribunal which held that it was for the Government to prescribe such qualifications as it considered fit for the post of Director (M.E.) and the Tribunal could not go into the question whether that quali fication was necessary unless the prescribing of the re quirement could be said to be perverse.
The Tribunal further took the view that the appellant had no vested right to promotion but had a mere chance of promotion and he was not entitled to challenge the rule merely on the ground that it affected his chance of promotion.
The said appeal is direct ed against the said decision.
The main argument of learned counsel for the appellant is that the Tribunal was in error in holding that the rule affected merely a chance of promotion which the appellant had.
It was submitted by him that although the appellant could not claim any right to be promoted, he certainly had the right to be considered for promotion and the amendment to the rule carried out by the said Notification depriving of that right was bad in law.
Strong reliance was placed by the learned counsel for the appellant on the decision of this Court in T.R. Kapur and Others vs State of Haryana and Others, [1986] Supl.
SCC 584 at 595 where it was held that right to be considered for promotion is a condition of service.
This decision is, however, of no assistance to the learned counsel in support of his argument because the Bench which rendered the said decision has stated (at paragraph 16, page 595 of the said report) as follows: "It is well settled that the power to frame.
rules to regu late the conditions of service under the proviso to Article 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect.
It is equal ly well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chance of promotion may not be.
" It was further held that: "an authority competent to lay down qualifications for 448 promotion, is also competent to change the qualifications.
The rules defining qualifications and suitability for promo tion are conditions of service and they can be changed retrospectively" It was, however, clarified that: "unless it is specifically provided in the rules, the em ployees who are already promoted before the amendment of the rules, cannot be reverted and their promotions cannot be recalled.
" It is only in this sense, that is, as set out in the immediately preceding paragraph that the view has been taken that the rules cannot be retrospective.
The ratio of this decision is not applicable to the case before us as there is no question of reverting the appellant.
Again, it has been held by a Bench comprising three learned Judges of this Court, in State of Maharashtra and Another vs Chandrakant Anant Kulkarni and Others, ; (at paragraph 16, page 141 of the said report), that 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 condition of service.
A right to be considered for promotion is a term of service, but mere chances of promotion are not.
It was also held there that mere passing of the departmental examination conferred no right on the concerned S.T. Inspectors of Bombay, to promotion.
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.
In our opinion, n0 retrospective effect has been given to the said amended rule.
It is not argued that the appel lant has been reverted from the post which he occupies on the ground of any lack of any qualification.
The only effect is that his chances of promotion or his right to be consid ered for promotion to the higher post is adversely affected.
This cannot be regarded as retrospective effect being given to the amendment of the rules carried out by the impugned Notification and the challenge to the said notification on that ground must fail.
The next argument advanced before us by the learned counsel for the appellant is that employees in the drilling stream who might be diploma holders could move by promotion to the grade of Director (Drilling) which is equivalent to the post of Director (Mechanical Engineering) and would be further eligible to be considered for the 449 next higher post of Deputy Director General (Engineering Service) on the basis of a common seniority of Directors (Mechanical) and Directors (Drilling).
It was submitted that, in this situation, the requirement of a degree for promotion to the post of Director (Mechanical) must be regarded as unreasonable and bad in law.
This argument was rejected by the Tribunal on the ground that the fact that for the higher post of Deputy Director General (Engineering Service), it is not necessary to hold a graduate degree is no reason why a degree requirement for the post of Director (Mechanical) should be regarded as unreasonable or bad in law.
It is for the Government to decide what qualification was required for the promotion to the post of Director (M.E.) and, unless that requirement was totally irrelevant or unreasonable, it could not be said to be bad in law.
In this regard, we agree with the reasoning and conclusions or ' the Tribunal.
In the result, the appeal fails and is dismissed.
There will be no order as to costs.
G.N. Appeal dis missed.

summary:
The appellant, a diploma holder, was, in 1964, appointed as Transport Officer (Class I Technical Grade, Group A), which post was later redesignated and merged with the post of Mechanical Engineer (Junior) in 1968.
The Geological Survey of India (Group 'A ' and Group 'B ' posts) Recruitment Rules, 1967, framed under Article 309 of the Constitution were brought into force in 1969.
The appellant was promoted as a Mechanical Engineer (Senior) in 1973 and his conditions of service were governed by the said Rules, which had been amended from time to time.
One such amendment made in 1984 prescribed that for promotion to the post of Director (M.E.), a degree in Engineering was a requisite qualifica tion.
The appellant challenged before the Central Adminis trative Tribunal, the validity of the said notification on the ground that it affected his chances of promotion or alternatively his right to be considered for promotion to the post of Director (M.E.).
It was contended that applying the amended Rule, in so far as the appellant was concerned, would amount to giving retrospective effect to the operation of the rule, and no retrospective rule could be framed under Article 309 of the Constitution.
The Tribunal rejected the contention and held that it was for the Government to pre scribe such qualifications as it considered fit, and the Tribunal could not interfere unless it was shown to be perverse.
Aggrieved against the Tribunal 's order, the appellant has preferred this appeal by special leave.
Dismissing the appeal, this Court, HELD: 1.
Mere chance of promotion is not condition of serv ice 445 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.
[448D] state of Maharashtra and Anr.
vs Chandrakant Anant Kulkarnt and Others, ; , relied on.
T.R. Kapur and Others vs State of Harvana and Others, [1986] (Suppl.) SCC 584, referred to. 2.
In the instant case, no retrospective effect has been given to the said amended rule.
It is not the case that the appellant has been reverted from the post which he occupies on the ground of lack of any qualification.
The only effect is that his chances of promotion to the higher post is adversely affected.
Alteration of rules of eligibility cannot be invalidated on the ground that an employee 's claim to be eligible for promotion is adversely affected.
This cannot be regarded as retrospective effect being given to the amendment of the rules carried out by the Notification and the challenge to the said notification on that ground must fail.
[448F G] 3.
The fact that for the higher post of Deputy Director General (Engineering Service), it is not necessary to hold a graduate degree is no reason why a degree requirement for the post of Director (Mechanical) should be regarded as unreasonable or bad in law.
It is for the Government to decide what qualification was required for promotion to the post of Director (M.E.) and, unless that requirement was totally irrelevant or unreasonable, it could not be said to be bad in law.
[419B C]


judgement:
Appeal No. 355 of 1981.
From the Judgment and Order dated 27.10.1980 of the Delhi High Court in S.A.O. No. 241 of 1979.
G.L. Sanghi and S.L. Aneja for the Appellant.
K. Parasaran, Gopal Subramanium, Arvind Verma and Mukul Mudgal for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
For the view we take in this appeal by special leave and leaning as we would be on our discretion ary power under Article 136 of the Constitution, no elabo rate details are necessary of the facts involved therein and for its disposal by a brief order.
The appellant, Subhash Mehta, more than two decades ago obtained a residential lease of the first floor in premises bearing No. D 32, South Extension, Part II, New Delhi from Dr. S.P. Choudhary (now dead) the landlord who was himself residing on the ground floor thereof.
The settled rent was Rs.800 per mensem.
The landlord on 508 November 27, 1972 served a notice on the tenant demanding arrears of rent from September 1, 1972 onwards.
The demand having not been met he instituted an eviction petition before the Rent Controller, Delhi on March 13, 1973 on grounds of non payment of rent as also on other grounds.
On June 1, 1973 the Rent Controller passed an order under section 15(1) of the Delhi Rent Control Act, 1958 (hereinaf ter referred to as the 'Act ') directing the tenant to depos it arrears of rent within one month from the date of the order and further to pay month to month rent by the 15th of every calendar month.
The appellant, within the period allowed, deposited Rs. 10,000 to cover arrears of rent as well as to cover future rent uptill September 15, 1973.
Thereafter neither on October 15, 1973 nor on November 15, 1973, did the tenant deposit monthly rent as required by the aforesaid order of the Rent Controller.
He was alleged to have defaulted on that count.
Yet on December 1, 1973 he made a deposit of Rs.2,800 partly covering the default of the previous period.
The landlord took objection to the late deposit and after much debate the Rent Controller struck off the defence of the appellant.
The Rent Appellate Tribunal, Delhi set aside the order of the Rent Controller striking out the defence of the tenant on appeal by the tenant and remitted the case back to the Rent Controller for further proceedings.
Second appeal to the High Court of Delhi by the landlord was dismissed.
The Additional Rent Controller who became seisin of the matter on remand went into all the grounds as originally raised in the eviction petition; the other grounds, besides the tenant being in arrears of rent, being sub letting, conversion of the user of premises from residential to commercial, the tenant having acquired vacant possession of a residential house in M 18, Green Park Extension, New Delhi and for bona fide requirement of the daughter of the land lord who being a student of M.B.B.S, was expected to set up medical practice.
The Additional Rent Controller by his order dated December 12, 1978 ordered eviction of the tenant on the sole ground of non payment of future rent in terms of his order passed under section 15(1) of the Act, granting the tenant two months ' time to vacate the premises.
The other grounds of eviction were rejected.
The tenant 's appeal before the Rent Control Tribunal centered round the sole question of delayed payment of arrears of rent and of the scope and rigour of section 15(1) of the Act.
In assailing the order of the Additional Rent Controller, reliance was placed by the tenant on a judgment of this Court in Hem Chand vs Delhi Cloth Mills, to contend that even if the tenant had not strictly complied 509 the terms of the order made under section 15(1) of the Act in as much as depositing future rent late it was not impera tive in all events of the defence of the tenant being struck off and a fair amount of discretion had been left with the Rent Controller under section 15(7) which should have been exercised in his favour and before his defence was to be struck off the Rent Controller had to come to the view that his conduct was wilful or contumacious in disobeying the order made under section 15(1) of the Act, and which in the instant case he had failed to record.
Even being aware of these principles the Rent Control Tribunal on August 18, 1979 dismissed the appeal observing that no infirmity in the order of the Additional Rent Controller could be found.
On the same lines and reasoning second appeal of the tenant was dismissed by the High Court of Delhi on October 27, 1980 keeping maintained the ejectment of the tenant for non compliance of the order made under section 15(1) of the Act.
This has led to the instant appeal on the grant of special leave.
The landlord Dr. S.P. Choudhary as hinted earlier died in the year 1981 during the pendency of this appeal leaving behind a widow and a daughter; the latter now being a divor cee rearing a minor son.
This is the uncontroversial asser tion of the successor landlords.
The eviction order in their favour has been assailed by Mr. Sanghi, learned counsel for the tenant appellant on the strength of the decision of this Court in Ram Murti vs Bhola Nath and Another, stressing the point that the words 'as required by section 15(1) of the Act ' occurring in sub section (7) of section 15 must be construed in a reasonable manner and that the said provision confers a wide discretion on the Rent Controller not to strike off the defence of the tenant which indicates that defences could still be open to the tenant under the Act to claim plain protection under section 14(2) thereof.
In that case this Court ruled that the Rent Con troller necessarily by legal implication has power to con done the default on the part of the tenant for deposit of future rent or to extend time for such deposit.
On the said plea advanced on behalf of the tenant the result sought to be achieved is that the delay in making deposit of future rent be excused saving him from eviction.
The tenant had before the Rent Controller while explaining cause for late deposit of future rent put up the plea that the counsel present at the time of the passing of the order under sec tion 15(1) in place of his engaged counsel had only intimat ed to him about the payment of arrears of rent and not about the deposit of future rent by the 15th of every calendar month.
On that basis the order of eviction was sought to be upset by accepting such plea of the tenant.
On the other hand, learned counsel for the successor landlords 510 tactically took shelter behind the other grounds of eviction which were rejected by the Additional Rent Controller and besides raising them vehemently before us projected that in the facts and circumstances of this case and the subsequent events which have come by, this Court should refrain from interfering in the matter under Article 136 of the Constitu tion.
On such stance adopted it is plain that the ground on which eviction has been maintained before the Tribunal and the High Court concurrently the successor landlords seeming ly had an uphill task to have it maintained in view of Ram Murti 's case (supra).
Yet, without conceding on that score other grounds of eviction were pressed despite opposition by learned counsel for the tenant that these grounds were neither pressed in the court of the Rent Control Tribunal nor in the High Court while supporting the order of eviction and no cross appeals in these two forums were filed by the landlord, which if serious he legitimately could.
It is true that the Tribunal and the High Court are both silent on the point.
The order of the Additional Rent Controller suggests that the tenant is an industrialist.
His finding is that within the years 1971 to 1974 he was active in incorporating three companies and that he was a proprietor of M/s. Globe Marketing and Management Limited, a Director of M/s. Sports Equipment Private Limited and again a Director in M/s. Indian Consultants Private Limited.
His further finding is that while living in the demised premises he had floated these companies and later taken in other directors.
In so far as the latter two companies were concerned, this act of the tenant was not sub letting, assigning or parting with the possession of the disputed premises as held by the Rent Controller.
Sequelly the finding further recorded was that there was no misuser of the disputed premises inasmuch as the respective offices run by the companies therein had caused no damage to the premises.
With regard to the fact that the tenant had acquired another premises at M 18, Green Park Extension, New Delhi the Rent Controller took the view that factually the father of the tenant had acquired the same and the tenant could not live in that premises with his father as a matter of right.
Lastly with regard to the bona fide requirement of the landlord the Rent Controller took the view that the landlord 's family comprising of himself, his wife and daughter had sufficient accommodation in their possession even though his daughter had to estab lish practice as a doctor.
The additional plea of the suc cessor landlords as given out in their counter affidavits now is that the telephone connections standing in the name of afore referred three companies, with which the tenant is intimately connected, are at the demised premises as per the Mahanagar Telephone Nigam Directory 511 and that the tenant is a rich and well:connected industrial ist deserving no protection of the rent laws, misplacedly sought by him.
We have pondered over the matter and have weighed every aspect of the case.
The facts and circumstances now emerging are that the successor landlords are two ladies; one a widow and the other a divorcee.
If we were to allow the appeal by releasing and relaxing the rigour of the order of eviction relying on Ram Murti 's case, we unhesitatingly then would take the step to have the matter remitted back at an appro priate stage where the successor landlords could convenient ly have the other grounds of eviction adjudicated upon and overrule the objection that the landlord could have filed an appeal before the Rent Appellate Tribunal and the High Court seeking eviction of the tenant on grounds other than the ground on which the eviction was ordered.
This course, however, appears to us to be not only unfair and unreasona ble in the facts and circumstances of this case but time consuming and inequitous as well to the successor landlords who, as said before, are two ladies brought in the fray by operation of law.
Now since almost eighteen years have passed by, we feel there should be an end to the dispute and this course is in the interest of all concerned as well as the State.
Instead of putting the parties to a fresh bout of litigation we would in these circumstances prefer and opt to let remain the order of eviction sustained however on slen der ground, and consequently order dismissal of this appeal but without any order as to costs.
Still we do not wish to dislocate the appellant abruptly, concerned as we are for him also, and for that purpose grant him sufficient time ending on March 31, 1991 for vacating the premises subject to his giving an undertaking before this Court for vacation on or before the said date but on payment of rent to the landlords as has fallen due for the period uptill and by March 31, 1990 and future monthly rent by the tenth of each calendar month.
Let the undertaking be filed by March 10, 1990 in the Registry in the usual manner.
P.S.S. Appeal dismissed.

summary:
In the proceedings for eviction under the Delhi Rent Control Act, 1958 for arrears of rent, subletting, conver sion of user from residential to commercial and bona fide need, the appellant tenant committed breach of the Control ler 's directions under section 15(1) of the Act in the matter of payment of monthly rent.
Consequently, his defence was struck off and the suit decreed on the sole ground of de layed payment of future rent.
All the other grounds were rejected.
The tenant assailed the order before the Rent Control Tribunal relying on Hem Chand vs Delhi Cloth Mills, on the rigour of section 15(1) of the Act.
The Tribunal found that there was no infirmity in the order.
The High Court maintained the ejectment.
In the appeal by special leave, it was contended for the appellant on the strength of the decision in Ram Murti vs Bhola Nath, that section 15(7) of the Act con fers a discretion on the Rent Controller not to strike off the defence of the tenant and consequently the delay by him in making deposit of future rent should have been excused, and that since no cross appeals were filed by the landlord against the rejection of other grounds in the court of the Rent Control Tribunal or in the High Court nor those grounds were pressed in these two forums by the landlord, those grounds were no more available to him.
The landlord died during the pendency of the appeal and his widow and divorced daughter respondent succeeded to him as landlords.
It was contended for them that the tenant was a rich and well connected industrialist deserving no protection of the rent laws.
Dismissing the appeal, the Court, HELD: 1.
If the appeals were to be allowed by releasing and relaxing the rigour of the order of eviction, the matter then would have to be 507 remitted back at an appropriate stage where the successor landlords could conveniently have the other grounds of eviction adjudicated upon, by overruling the objection that the landlord could have filed an appeal before the Rent Control Tribunal and the High Court seeking eviction of the tenant on grounds other than the ground on which the evic tion was ordered.
[51 lB C] 2.
The successor landlords are two ladies, one a widow and the other a divorcee, brought in the fray by operation of law.
Remitting the case back would not only be unfair and unreasonable but time consuming and inequitous as well to them.
Since almost eighteen years have passed by there should be an end to the dispute.
This course is in the interest of all concerned as well as the State.
Instead of putting the parties to a fresh bout of litigation the order of eviction should, therefore, be sustained. ]51 IC E] 3.
The appellant is granted time ending on March 31, 1991 for vacating the premises subject to his giving an undertaking for vacation on or before the said date and payment of rent to the landlords.
[511E F]