DAMODARA KURUP Vs. STATE OF KERALA

JUDGEMENT

(1.) PRIOR to the coming into force of the Kerala engineering Subordinate Service (Radio Branch) Rules on 3rd February 1967, it is the case of the petitioners before me who are Radii Mechanics recruited prior to those rules, that they were entitled to be promoted as Junior engineers on the basis of seniority. However, by the Special Rubs aforementioned it was provided that the posts of Junior Engineers governed by the aforesaid rules would be filled up by direct recruitment and by promotion in the ratio of 2:1. This ratio was later on as per Ext. P2 notification dated 21st August 974 amended as 3:2, three direct recruits to two promotees with reference to cadre strength. Though a larger prayer, viz. , that R. 2 of the aforesaid Special Rules be declared as illegal and unconstitutional is sought for by the petitioners in the petition, the main argument advanced before me related to the prayer advanced by them that the provision in R. 2 of the aforesaid Special Rules, so far as it enables direct appointment of Junior engineers, be not enforced till the eight petitioners in this petition are promoted as Junior Engineers, I need therefore consider only the substantial relief urged before me, and not the constitutional validity of R. 2 mentioned above.

(2.) THE main argument was founded on R. 35 of the Kerala state and Subordinate Services Rules, 1958, and particularly on clauses (i) and (ii) of sub-rule (a) of the aforesaid rule. It is submitted on behalf of the petitioners by their learned counsel that unless a contrary intention expressly appears in the K. S. S R. nothing contained in the K. S. S. R. shall "adversely affect "the petitioners who were members of the service on the date of coming into force of those rules and that unless the Special Rules expressly so provide nothing contained therein shall "adversely affect" the petitioners who were in the service on the date of coming into force of the special Rules. It is contended before me that while prior to the coming into force of the rules Radio Mechanics would automatically be promoted as Junior engineers on the basis of seniority, after the coming into force of the said rules they would be so promoted only to every third vacancy and later on only to every fourth and fifth vacancies that arise in the cadre of Junior engineers, though of course the proportion of 3:2 are to be kept always with reference to the cadre strength In other words, the submission is that the petitioners would not be promoted as they would have, had not the Special Rules come into force. This in my view would affect the petitioners chances of promotion, but not the right to be considered for promotion as and when they would be entitled to be promoted in accordance with rules. If that be so I do not think that the petitioners are entitled to contend that they would "adversely be affected" as contemplated by R. 35 (a) (ii) for as held by the Supreme Court in R. S. Deodhar v. State of Maharashtra AIR. 1974 SC. 259 and Mohammed Shujat Ali. v. Union of India AIR. 1974 SC 1631 "a rule which merely affects chances of promotion cannot be regarded as varying a condition of service". In the earlier decision referred to above in Para. 12 thereof that court referred to the decision in State of Mysore v. G. B. Purohit (C. A. No. 2281 of 1965) wherein it was said: "it is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service". To the same effect is the decision in the later case as well. It has to be noticed that in both the cases the question arose with reference to the proportion fixed for direct recruitment and promotion for filling up certain posts in the higher cadre.

(3.) IN view of what is stated above there is no substance in this Original Petition. The same is dismissed. However, in the circumstances of the case there will be no order as to costs. Dismissed. . .