SEEMA RAWAT Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) By means of present writ petition, petitioners have sought the following reliefs:-

(2.) Factual matrix of the case is that petitioners were appointed as Junior Assistants in the Department of Food and Civil Supplies, Government of Uttarakhand, on different dates between the year 2011 to 2013. The next higher post to which the petitioners could be promoted is Marketing Inspector. The Recruitment Rules known as Uttar Pradesh Food and Civil Supplies, Marketing Branch Subordinate Service Rules, 1980 (as amended in the year 1993) (hereinafter to be referred as old Rules) were applicable at that relevant point of time. Rule 5(1)(b) whereof provided that 25% posts of Marketing Inspector shall be filled up by way of promotion, on the basis of seniority subject to rejection of unfit from existing clerical cadre after completion of satisfactory service of five years. According to the petitioners, they having being completed five years' service in clerical cadre, are eligible for being considered for promotion to the post of Marketing Inspector, but no promotional exercise was carried out in the clerical cadre. In this regard, several representations were made by the petitioners themselves and through their Association also before the competent authority. The Regional Food Controller, Kumaon Region, Haldwani had written a letter dated 05.05.2020 to Commissioner, Food and Civil Supplies/respondent no.2 thereby recommending for the petitioners' promotion on the 16 vacant posts of Marketing Inspector, but to no avail. Meanwhile, The Uttarakhand Food and Civil Supplies and Consumer Affairs Department (Marketing Branch) Subordinate Service Rules, 2020 (hereinafter to be referred as the new Rules) came into force. Petitioners are aggrieved by Rule 5(1)(b) of the new Rules which stipulates that for the post of Marketing Inspector, 23% percent recruitment shall be made by promotion amongst the Chief Assistant, Senior Assistant, Record Keeper and Junior Assistant cum Computer Operator substantially appointed who have completed ten years of service on any or more posts in the said categories on the first day of recruitment year, on the basis of seniority, subject to rejection of unfit through the selection committee. Petitioners contend that, by virtue of said amendment in the Rules, the qualifying service for promotion to the post of Marketing Inspector has been enhanced from 5 years to 10 years, and thus, their vested right of being promoted to the post of Marketing Inspector have been taken away.

(3.) A counter affidavit has been filed on behalf of respondent no.1 stating therein that the new Rules have been made by the Government of Uttarakhand in exercise of the powers conferred on it by the proviso to Article 309 of the Constitution of India, which is uniformly applicable to all the persons appointed in the feeding category. It is also stated that an employee has no right to be promoted; he has a right to be considered for promotion. Mere chance of promotion is not a condition of service and fixing qualification, eligibility criteria and norms for promotion is within the domain of legislature or the executive to decide what Rules or policy would serve the purpose best. It is further stated that Rule 4(2)(i) of the old Rules as well as the new Rules provide that the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation. It is also stated that it is the prerogative of the Government to take a decision to fill the old vacancies or under the new Rules. As regards the challenge to the Rule 5(1)(b) of the new Rules by the petitioners, it is stated that the prayer of the petitioners is defective as they have sought a writ in the nature of certiorari for quashing the Rule 5(b) of the Uttarakhand Food, Civil Supplies and Consumer Affairs Department (Marketing Branch) Subordinate Service Rules, 2020, instead of seeking a declaration to declare said Rules as ultra-vires.