TMI Blog1998 (9) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... posts of Lower Division Clerks. The petitioners are desirous of promotion to the post of L.D.C. 2. Eligibility for promotion to the post of L.D.C. under the 1957 Rules was Secondary School Examination or its equivalent Examination recognised by the Government. Thereafter, under the amended rules, qualifications equivalent to Secondary School Examination were deleted from the rule relating to eligibility with the result that no person who did not possess Secondary School Examination certificate from the Rajasthan Secondary Education Board or University or Board established by law in India, was eligible for promotion to the post of L.D.C. with effect from June 28, 1985. All the petitioners had acquired the equivalent qualifications prior to June 28, 1985. They were not promoted till June 28, 1985 and the respondents expressed their inability to promote them after June 28, 1985, applying the amended Rules. 3. Several employees similarly situated to the petitioners filed petitions before this Court. Many of them succeeded, while the others did not. When S.B. Civil Writ Petition No. 7328/1992 (Prem Kunar v. State) was posted for hearing before a learned single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Chief Justice to constitute a Larger Bench as already requested by Hon'ble M.B. SHARMA, J. Similarly, when Writ Petitions No. 3200/1991, 3763/1991, 3884/1991, 3885/1991, 3886/1991 and 4171/1991 were fixed before Hon'ble V.K. SINGHAL, J., he again requested the Hon'ble the Chief Justice to place this matter before the Full Bench hearing reference in Writ Petitions No. 7328/1992 and No. 6061/1991. 6. When Writ Petitions No. 2788/1994 and 2789/1994 were fixed before Hon'ble N.L. TIBREWAL, J. on February 18, 1998, noting the conflict between the view taken by a Division Bench of this Court in Bhagwandeen Verma v. University of Raj. and Ors. (D.B.C.W.P.No. 1681/ 1992 decided on December 15, 1993) and the view taken by another Division Bench in Sardara Ram Dangi v. District Judge, Jodhpur and Anr. (D.B.C.W.P.NO. 331/1989 decided on August 23, 1990) his Lordship directed that the matter be placed before the Acting Chief Justice for constituting a Larger Bench relating to recognition of Prathama Examination Certificates. It appears that it was not brought to the notice of his Lordship that a Full Bench had already been constituted for considering the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f derecognising the examination with a view to bring a greater efficiency, is achieved without adversely affecting the rights of those to whom the said change will become applicable. It was further observed that the petitioners, at the time of appearing in the examination, knew that they were qualifying themselves for better career prospects. Derecognition of the qualification with retrospective effect would, therefore, be harsh. It was further observed that if the promotions had been given before amendment of the rules, the petitioners would have been promoted on the basis of qualifications then recognised. 9. Relying on the decision of the Supreme Court in K.C. Arora and Anr. v. State of Haryana 1984 (2) SLR 97 and Aditya v State of A.P. AIR 1985 SC 165, it was further held in the aforesaid case that retrospective amendment affecting the rights relating to seniority, increment or pension amounted to variation in service conditions and such amendments were, therefore, held to be inoperative and invalid. It was then observed that in cases before the Division Bench, the petitioners were promoted to the higher post of L.D.C. after acquiring prescribed and recognised qualifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the literal interpretation of the Rules would be unjust to the petitioner respondent. As soon as petitioner-respondent passed Prathama Examination prior to 1985, they would be deemed to have passed High School Examination in view of Notification dated May 13, 1974 recognising the equivalent qualification. It was further held that the Notification dated June 28, 1985 was not retrospective in effect and it did not affect the equivalence which was earlier granted by the notification dated May 13, 1974. 12. In Charan Kaur v. Managing Committee 1996 (4) SLR 113, the Punjab and Haryana High Court held that a qualification acquired by a person at a time when it was duly recognised would continue to be valid in spite of its derecognition on a subsequent date and only the persons who obtained that qualification after derecognition would be held to be ineligible. However, in the facts of the case, the petitioner had already been appointed as an Art Craft Teacher in a school, in the year 1980 on the basis of then recognised qualification of Diploma in Art Craft awarded by the Department of Industries, Haryana State. Her services were regularised in 1992. The qualifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressions 'vested rights' or 'accrued rights' are used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. Such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing Rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. The question involved in this case was whether pensionary rights accrued to pensioners on the date of their retirement would be affected adversely after an amendment in the rules incorporated after the date of retirement. 16. In Y. V. Rangaiah v I. Sreenivasa Rao: AIR 1983 SC 852, it was observed that vacancies which occurred prior to amended rules would be governed by the old rules and not by new rules. 17. Decision of the Supreme Court in State of Rajasthan v. R. Dayal and was cited for observations therein to the effect that the post which fell vacant prior to the amendment of the rules would be governed by the original rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to in the Section, shall not be vested to his disadvantage, except with the previous approval of the Central Government. Previous approval of the Central Government was not obtained for changing the qualification from diploma in Engineering to Degree in Engineering and, therefore, the amendment in a Rule was itself bad. Secondly, this was also a case where promotions had already been granted and were being enjoyed by the petitioners. In some cases, the promotions which were taken away were ordered over 20 years back. 21. As regards the retrospective operation of a rule, in paragraph 16 of the judgment, it was observed as follows: It is equally well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognised principle that the benefits acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... students were receiving training and this was also because they had joined the course on the basis of recognition granted by the State Government to the course. It is not specifically laid down in the case that all those who had acquired certificate in physical education from the institute earlier to January 9, 1985, would be recognised to be qualified. The case is also distinguishable on the ground that this was a case of derecognition of a particular course conducted by a particular institution and not a general amendment in the rule deleting certain qualifications from the eligibility qualifications provided by the rules. When an educational institution is derecognised, it is natural that the degrees or diplomas obtained prior to derecognition would not remain valid and recognised, but the same cannot be said when the rule is amended and the qualification itself is deleted from the eligibility qualifications. 24. In K.C. Arora v. State of Haryana, the Supreme Court was dealing with the case of a person who joined the Army during the emergency as commissioned officer and who after serving the Indian Army for more than five years was appointed in the service of the Hary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in accordance with the Rules. It was observed, thus, that it was settled principle in service jurisprudence that mere chances of promotions are not conditions of service and a candidate appointed in accordance with the rules can still march over his erstwhile seniors in field/ lower cadre. 28. In State of Maharashtra v. Chandrakant also, it was held 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 conditions of service. A right to be considered for promotion is a condition of service, but mere chances of promotion are not. 29. In Union of India and Anr. v. Yogendra Singh, the Supreme Court held that no candidate who does not possess the currently prescribed qualifications, but who may possess the educational qualifications prescribed earlier can be said to qualify or have any vested right to get appointment even against some other unfilled vacancies. A candidate who aspires to fill any vacancy must possess the educational qualifications that are then prescribed. It is clear from the decision that in cases of direct recruitment, a candidate canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose who have acquired the same qualifications after the amendment in the rules would be ineligible but those who had acquired that qualification earlier to the amendment in the rules would be eligible. 32. It is also to be noted that these are not the cases of derecognition of a degree, diploma or certificate issued by a particular institution because of some fault on the part of the institution awarding the same. The cases of derecognition of particular institutions and consequently derecognition of the degrees, diplomas and certificates issued by such institutions have to be distinguished from service matters in which certain qualifications are deleted from the rules. Removing or deleting a qualification from eligibility criteria cannot be said to be derecognition of that qualification or a degree, diploma or certificate. It only means that the degree, diploma or certificate has ceased to be the eligibility qualification for a particular post. It does not take away from the candidate, the degree, diploma or certificate conferred by the institutions. For example, if the eligibility qualification for a particular post was earlier 'Graduate' and by amendment, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
