Smti Taku Yagyang Tadar & Ors. vs The State Of AP & Ors.

(Kardak Ete, J)

Heard Mr. T. T. Tara, learned Senior Counsel, assisted by Mr. G. Bam, learned counsel for the petitioners. Also heard Mr. N. Ratan, learned Additional Advocate General for the State respondents.

By this writ petition, the petitioners seek to question the vires of the General Arunachal Service, Group-C (Ministerial) Multi Tasking Staff (Duftry/Peon/ Chowkidar/Mali/Barber/Cook/Washer man/ Cobbler and equivalent posts) Common Recruitment Rules, 2019, as amended in 2021, particularly Rule 10(B), which provides that 50% of the vacancies shall be filled up from amongst the existing Un-Skilled Contingency Staff who have completed 15 years of service and who possess Education Qualification of Class-X/ITI or equivalent pass certificate from a recognized Board or Institution.

The petitioners are serving as skilled contingent staff under the Directorate of Civil Aviation, Government of Arunachal Pradesh. Petitioner No. 1 was initially appointed as Unskilled Contingency Staff on 22.12.2003 and was upgraded as Skilled Contingency staff on 03.07.2018 against a clear vacancy. Petitioner No. 2 joined as Unskilled Contingency Staff on 26.09.1996, while Petitioner No. 3 joined as Contingency Staff on 09.01.2002, and they claim to have been continuously serving in the Department since their respective dates of appointment.

Vide Office Memorandum dated 09.01.2012, the Chief Secretary to the Government of Arunachal Pradesh, has prescribed the procedure for maintaining of seniority of skilled and unskilled contingent staff and vide the subsequent Office Memorandum dated 13.07.2021, the Departments/Appointing Authorities were directed to prepare and publish the up-to-date inter-se seniority lists of serving skilled and unskilled contingent workers. Pursuant thereto, an inter-se seniority list of the Daily Labour staff (skilled and unskilled) of the Directorate of Civil Aviation was prepared on 09.05.2023, wherein the petitioners have been placed at higher positions than Respondent No. 5.

The General Arunachal Service, Group 'C' Multi-Tasking Staff Common Recruitment Rules, 2019, as amended in 2021, provide under Column 10(B) for filling up 50% of the vacancies by promotion from amongst existing Unskilled Contingency Staff/ALC/Casual Labour having the prescribed length of service and educational qualification. The petitioners contend that the said provision does not provide any promotional avenue to skilled contingent staff.

In the meantime, following the superannuation of one Shri Kham Seng Chetry on 31.12.2022, one vacancy in the post of Peon arose in the Directorate of Civil Aviation. A Departmental Promotion Committee was constituted for filling up the said vacancy and upon consideration of the eligible unskilled contingent staff, the Committee, in its meeting held on 10.08.2023, recommended the appointment of Respondent No. 5, Shri Pemar Karbi, to the post of Multi-Tasking Staff (Peon). Pursuant thereto, an appointment order dated 10.08.2023 was issued in his favour.

The petitioners, claiming that they were seniors to Respondent No. 5 and were entitled to consideration on the basis of the common/inter-se seniority list of skilled and unskilled contingent staff, submitted a representation dated 26.12.2023 before the Directorate of Civil Aviation. Their grievance, essentially, is that their cases were not considered by the DPC on the ground that the promotional provision under Column 10(B) of the Recruitment Rules was confined to unskilled contingent staff.

Aggrieved by the aforesaid Recruitment Rules, particularly Column 10(B), as well as the DPC proceedings dated 10.08.2023 and the consequential appointment of Respondent No. 5, this present writ petition is filed on the ground that exclusion of skilled contingent staff from consideration for promotion is arbitrary and discriminatory and is contrary to the Office Memorandum dated 09.01.2012 and 13.07.2021 thereby questioned its vires.

Mr. T. T. Tara, learned Senior Counsel for the petitioners, submits that the impugned Recruitment Rules, 2019, as amended in 2021, are arbitrary and discriminatory inasmuch as they provide a promotional avenue to unskilled contingent staff to the post of Multi-Tasking Staff, while no such avenue is provided to skilled contingent staff, including the petitioners. He submits that such a provision may result in a junior unskilled contingent employee being promoted to a higher post and thereby superseding a senior skilled contingent employee, which is violative of Articles 14 and 16 of the Constitution of India.

Mr. Tara, learned Senior Counsel, further submits that Column 10(B) of the Schedule to the impugned Rules ought to have included both skilled and unskilled contingent staff and the respondents may accordingly be directed to provide an equitable promotional avenue to both categories of employees. Therefore, he submits that the impugned Rules, to the extent they exclude skilled contingent staff from consideration for promotion, are liable to be declared ultra vires and suitably amended.

In support of his submissions, Mr. Tara, learned Senior Counsel for the petitioners, has relied on the following judgments of Hon’ble Supreme Court:

Food Corporation of India Vs. Parashotam Das Bansal, reported in (2008) 5 SCC 100

On the other hand, Mr. N. Ratan, learned Additional Advocate General for the State respondents, submits that the challenge made by the petitioners is misconceived. He submits that the skilled and unskilled contingent staff constitute two distinct categories, performing different nature of duties and drawing different wages. Under the General Arunachal Service Multi Tasking Staff (Duftry/Peon/Chowkidar/Mali/Dak Runner/Sweeper/Kennel man/ Water Carrier/Cook/Washerman/Cobbler and equivalent posts, Non Gazetted, Group-C st (Non Ministerial) Common Recruitment (1 Amendment) Rules, 2021, the educational qualification prescribed for consideration for promotion to the post of Multi-Tasking Staff from amongst the unskilled contingency staff is Class-X/ITI or equivalent pass certificate from a recognized Board or Institution, whereas the skilled contingency staff, possessing Class-XII qualification, have been provided a separate avenue for promotion under the General Arunachal Service, Group-C (Ministerial) (Common) Lower Division Clerk/Lower Division Clerk-cum-Computer Operator/Data Entry Operator Recruitment Rules, 2019. He submits that Column 9 of the Schedule to the said Recruitment Rules, 2019 provides for filling up 15% of the vacancies in the post of LDC-cum-Computer Operator/Data Entry Operator from amongst the skilled contingency staff through Limited Departmental Competitive Examination.

Learned Additional Advocate General submits that the Rules have adequately provided promotional avenues to both categories of contingency staff at different levels, having regard to their respective nature of duties and educational qualifications. The promotional avenue to the post of MTS under Column 10(B) is confined to unskilled contingency staff having the requisite 15 years of service, while the skilled contingency staff have an avenue to a higher post subject to the prescribed eligibility conditions. Merely because the petitioners are working as skilled contingency staff, they cannot claim consideration against the promotional quota earmarked for unskilled contingency staff. The petitioners may themselves not possess the educational qualification prescribed for promotion to the higher post and may also be over-aged; however, the lack of requisite qualification or the fact of being over-aged in an individual case cannot be a ground to challenge or strike down the statutory Recruitment Rules as being ultra vires. Therefore, he submits that there is no infirmity in the impugned Recruitment Rules warranting interference by this Court.

In support of his submission, Mr. Ratan, learned Additional Advocate General, has relied on a judgment of Hon’ble Supreme Court in the case of Jomon K.K. Vs. Shajimon P. & Ors., reported in 2025 SCC OnLine SC 711.

Due consideration has been extended to the submissions of learned counsel for the parties and also perused the materials placed on record.

Essentially, the grievance of the petitioners is that, although the Office Memorandum dated 09.01.2012 and 13.07.2021 contemplate maintaining of a common/inter-se seniority list of skilled and unskilled contingency staff, the petitioners, who claim to be senior to respondent No. 5 in the said seniority list, were not considered for appointment/promotion to the post of Multi-Tasking Staff. According to the petitioners, such exclusion of skilled contingency staff from consideration under Column 10(B) of the Recruitment Rules is arbitrary and amounts to denial of promotional opportunity.

The respondents, on the other hand, have sought to justify the impugned action by contending that the preparation of a common seniority list of skilled and unskilled contingency staff does not have the effect of obliterate the distinction between the two categories or making them interchangeable for the purpose of recruitment or promotion. According to the respondents, the two categories are governed by distinct Recruitment Rules and have separate promotional avenues, based on the nature of duties performed and the educational qualifications prescribed for the respective posts.

In order to appreciate the rival contentions, it would be apposite to refer to the relevant provisions of the Recruitment Rules governing the posts. The General Arunachal Service, Multi Tasking Staff (Duftry/Peon/Chowkidar/Mali/Dak Runner/ Sweeper/Kennel man/Water Carrier/Cook/Washerman/Cobbler and equivalent posts), Non-Gazetted, Group-'C' (Non-Ministerial) Common st Recruitment (1 Amendment) Rules, 2021, provides under Column 10(B) as follows:

On the other hand, the General Arunachal Service, Group-C (Ministerial) (Common) Lower Division Clerk/Lower Division Clerk-cum-Computer Operator/Data Entry Operator Recruitment Rules, 2019 prescribe the method of recruitment to the posts of Lower Division Clerk/Lower Division Clerk-cum-Computer Operator/Data Entry Operator. The relevant portion of the Schedule reads as under:

On a bare reading of the aforesaid provisions, it appears that the Recruitment Rules have consciously prescribed different sources for filling up vacancies in the respective cadres. While Column 10(B) of the MTS Recruitment Rules specifically identifies serving unskilled Contingency Staff/ALC/Casual Labour, possessing the prescribed length of service and educational qualification, as the source for filling up 50% of the vacancies in the MTS cadre, the LDC/LDC-cum-Computer Operator/Data Entry Operator Recruitment Rules provide a separate avenue for skilled contingency staff by earmarking 15% of the vacancies for them through Limited Departmental Competitive Examination. Thus, the Rules themselves maintain a distinction between the two categories and prescribe separate avenues for their progression.

The fact that the seniority of the aforesaid categories is required to be maintained in a common list does not, however, obliterate the distinction between the feeder categories prescribed under the respective Recruitment Rules. The note appended to Column 10(B) merely provides the manner in which seniority is to be reckoned amongst the categories specified therein; it cannot be construed as enlarging the substantive feeder category prescribed by the said Rule. An executive instruction or a provision relating to seniority cannot be read so as to override or enlarge the express source of recruitment prescribed by the statutory Rules.

It is necessary, in this regard, to distinguish between seniority and eligibility for consideration for appointment or promotion. Seniority becomes relevant only amongst those persons who are otherwise eligible and fall within the prescribed feeder category. Mere placement of an employee at a higher position in a common seniority list does not confer upon him an independent right to be considered against a post for which he does not satisfy the prescribed source of recruitment. Thus, the petitioners cannot claim consideration against the MTS vacancy merely on the strength of their position in the common seniority list.

Accepting the petitioners' contention would necessarily require this Court to enlarge the scope of Column 10(B) by reading skilled contingency staff into a provision which, in clear terms, refers only to unskilled Contingency Staff/ALC/Casual Labour. Such an exercise would amount to rewriting the Recruitment Rules. The prescription of the source of recruitment, qualifications and avenues of promotion is essentially within the domain of the rule-making authority and the Court, in exercise of judicial review, cannot substitute its own view of what the service structure ought to be, unless the impugned provision is shown to be constitutionally impermissible.

The petitioners' claim, therefore, cannot be sustained merely because they assert that they are senior to respondent No. 5 in the common seniority list. Seniority in service does not, by itself, confer eligibility for appointment or promotion to every post in the service. The consideration would be as to whether the employee belongs to the feeder category fulfils the conditions prescribed by the Recruitment Rules governing the post. In the present case, the petitioners, being skilled contingency staff, do not fall within the feeder category specified in Column 10(B) of the MTS Recruitment Rules.

It is settled principle that the State is competent, by framing appropriate service rules, to constitute different categories of posts and cadres, prescribe distinct qualifications and provide separate sources and avenues for recruitment or promotion. There is no vested right in a Government employee to insist that the conditions of service or promotional avenues should remain unchanged or that every category of employee must necessarily be provided an identical avenue of promotion. What is required is that the classification and the conditions prescribed by the Rules must withstand the constitutional requirement of fairness and non-arbitrariness.

In the present case, the distinction between the two categories is not without basis. The unskilled contingency staff and skilled contingency staff constitute different categories performing different nature of duties and are subject to different service conditions. The Recruitment Rules recognise this distinction and provide separate avenues for their progression. The MTS Rules prescribe a promotional/appointment avenue for eligible unskilled contingency staff, while the LDC/LDC-cum-Computer Operator/Data Entry Operator Rules provide a separate 15% avenue for skilled contingency staff through Limited Departmental Competitive Examination. The latter post also carries a higher educational qualification requirement of Class-XII.

The fact that a particular employee belonging to the skilled contingency category may not be eligible for consideration under the Recruitment Rules for the post to which an avenue is provided to his category cannot furnish a ground for declaring the Rules unconstitutional. Eligibility for a particular promotional post is necessarily subject to the qualifications and other conditions prescribed by the relevant Recruitment Rules. A deficiency in an individual employee's qualification, age or other eligibility cannot be converted into a challenge to the validity of the statutory scheme itself.

The judgments relied upon by learned Senior Counsel for the petitioners, namely, Ajit Singh (II) (supra), Badrinath (supra) and Parashotam Das Bansal (supra), have been carefully considered. There can be no quarrel with the proposition that an employee has a right to be considered for promotion in accordance with the applicable Rules and that promotional opportunities cannot be arbitrarily or unreasonably denied. However, the said authorities do not assist the petitioners in the facts of the present case, where the Recruitment Rules themselves prescribe the respective feeder categories and provide separate avenues of progression for skilled and unskilled contingency staff.

We are of the view that petitioners have also not been able to demonstrate that Column 10(B) of the MTS Recruitment Rules suffers from any manifest arbitrariness or that the distinction made between skilled and unskilled contingency staff has no rational basis. The impugned provision is founded upon an intelligible distinction between two categories having different nature of duties and prescribed qualifications and the Rules provide a separate promotional mechanism for the skilled contingency staff. Merely because the petitioners consider the common seniority list to be sufficient to make them eligible for consideration against the MTS vacancies cannot render the statutory provision unconstitutional.

Equally, the preparation of the common seniority list in terms of the Office Memorandum dated 09.01.2012 and 13.07.2021 cannot operate so as to amend, modify or enlarge the scope of the statutory Recruitment Rules. Executive instructions concerning maintaining of seniority have to operate within the framework of the statutory Rules and cannot confer an eligibility which the Recruitment Rules themselves do not provide. The common seniority list may be relevant for determining inter-se seniority for the purpose expressly contemplated under the Rules, but it cannot be treated as creating a common feeder cadre for recruitment to all posts.

It is also significant that the another challenge of the petitioners is founded upon the alleged disadvantage caused to them by the existing promotional scheme. However, such perceived hardship, by itself, is insufficient to invalidate a statutory service rule. The Court, while exercising judicial review, is not concerned with whether another scheme would have been more advantageous or equitable from the standpoint of an individual employee. The scope of judicial review is limited to examining whether the rule-making authority has acted within its competence and whether the impugned provision is arbitrary, unreasonable or inconsistent with constitutional or statutory requirements.

The principle is particularly relevant in matters concerning the framing and amendment of service rules. The State is entitled to restructure its services, create distinct categories, prescribe qualifications and determine the sources and methods of recruitment in accordance with administrative requirements. So long as such classification has a reasonable basis and does not infringe the constitutional mandate, the wisdom of the policy underlying the Recruitment Rules is not open to substitution by the Court.

The decisions relied upon by the respondents also support the aforesaid position. The law recognises that matters concerning constitution and restructuring of cadres, prescription of qualifications, determination of the source and mode of recruitment and regulation of promotional avenues fall primarily within the domain of the rule-making authority. The Court cannot direct inclusion of a category in a promotional quota merely because, in its view, such inclusion would provide a more favourable promotional opportunity, unless the exclusion is shown to be constitutionally impermissible.

In the facts of the present case, we find no such constitutional infirmity. The petitioners have not been denied an opportunity for progression altogether. Rather, the statutory scheme makes a distinction between the two categories of contingency staff and provides different avenues of progression. The petitioners' claim for consideration against the MTS vacancies is based principally on their position in the common seniority list. However, such seniority cannot override the express requirement under Column 10(B) that the relevant vacancies are to be filled from amongst serving unskilled contingency staff/ALC/Casual Labour possessing the prescribed qualifications and length of service.

The decision of the Hon'ble Supreme Court in A.P. Cooperative Oil Seeds Growers Federation Limited, Hyderabad, Andhra Pradesh Vs. D. Achyuta RAo& Ors., reported in (2007) 13 SCC 320 also makes it clear that a service rule cannot be struck down merely because it causes some hardship or operates less favourably against a particular category of employees, unless the rule itself is shown to be arbitrary, unreasonable or violative of the constitutional guarantees. Likewise, the principle laid down in Union of India Vs. Pushpa Rani & Ors., reported in (2008) 9 SCC 242 recognises the limited scope of judicial review in matters relating to restructuring of services and determination of promotional avenues.

We are not oblivious of the settled position of law that a law/rule may be struck down on two counts, i.e., lack of legislative competence and violation of fundamental rights or constitutional rights, for which we may refer to the case of State of A.P. and Ors. Vs. Mcdowell & Co. and Ors., reported in (1996) 3 SCC 709. The Hon’ble Supreme Court, in the case of Shayara Bano Vs. Union of India and Ors., reported in (2017) 9 SCC 1, has enlarged the scope by recognising the ground of manifest arbitrariness. In the said case, the Hon’ble Supreme Court, while considering the validity of subordinate legislation under Article 14 of the Constitution of India, observed as under:

We would also refer to the case of Nagaland Senior Government Employees Welfare Association and Ors. Vs. State of Nagaland and Ors., reported in (2010) 7 SCC 643, wherein the Hon’ble Supreme Court has held that an enactment or rule, including an amendment thereto, unless shown to be arbitrary, unreasonable or irrational, cannot be struck down. There is always a presumption in favour of the constitutionality of an enactment/rule and the burden of proof lies upon the person who assails its validity. In the present case, the petitioners have not been able to demonstrate that the impugned provision of the Service Rules is violative of any fundamental or constitutional right and/or suffers from legislative incompetence or manifest arbitrariness.

It is trite that the State, by appropriate rules, is entitled to amalgamate departments or bifurcate departments and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation, as well as to reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time, by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that the rules governing the conditions of his service should remain the same forever or that such rules must necessarily provide promotional avenues. An employee has no right to challenge the authority of the State to frame, amend, alter and bring into force any rule relating to the conditions of service, including amendment of an existing service rule.

The petitioners have also relied upon the common seniority list prepared by the Directorate of Civil Aviation and contend that, being placed above respondent No. 5 therein, they ought to have been considered by the DPC. We are unable to accept the said contention. The DPC was required to act in accordance with the statutory Recruitment Rules governing the post of MTS. Once the Rules confined the relevant promotional/appointment quota to eligible unskilled contingency staff, the DPC could not enlarge the zone of consideration by including persons who did not belong to the prescribed feeder category merely on the basis of their position in a common seniority list.

Thus, the appointment of respondent No. 5 pursuant to the DPC proceedings dated 10.08.2023 cannot be faulted merely because the petitioners were placed higher in the common seniority list. The relevant question is not who was senior in the common list, but whether the petitioners were eligible for consideration against the vacancy in terms of the Recruitment Rules. Since the petitioners, being skilled contingency staff, did not fall within the feeder category specified under Column 10(B) of the MTS Recruitment Rules, no right accrued to them to be considered against the said vacancy.

For the foregoing reasons, we are of the considered view that the petitioners have failed to establish that Column 10(B) of the General Arunachal Service Multi Tasking Staff (Duftry/Peon/ Chowkidar/Mali/Dak Runner/Sweeper/ Kennel man/Water Carrier/ Cook/Washerman/Cobbler and equivalent posts, Non-Gazetted, Group-C (Non-Ministerial) Common Recruitment (1st Amendment) Rules, 2021 is arbitrary, unreasonable or violative of Articles 14 and 16 of the Constitution of India. The distinction drawn between skilled and unskilled contingency staff has a rational basis and the Rules provide separate avenues for their progression.

The common seniority list prepared pursuant to the Office Memoranda dated 09.01.2012 and 13.07.2021 cannot enlarge the feeder category prescribed under the statutory Recruitment Rules. Such seniority may operate for the purpose contemplated by the Rules, but it does not confer upon the petitioners any right to claim consideration against the MTS vacancies reserved for eligible unskilled contingency staff. Thus, the DPC was justified in considering only those candidates who fell within the prescribed feeder category and the appointment of respondent No. 5 pursuant to the DPC proceedings dated 10.08.2023 cannot be faulted on the ground that the petitioners stood higher in the common seniority list.

Consequently, the challenge to Column 10(B) of the impugned Recruitment Rules as well as to the DPC proceedings dated 10.08.2023 and the consequential appointment of respondent No. 5, is devoid of merit. No ground has been made out warranting interference by this Court.

In the result, the writ petition fails and is accordingly dismissed. No order as to cost(s).