JUDGMENT
S.B. Sinha, C.J.
(A) FACTS OF THE CASE:-
1. The Indian Standards Institution (hereinafter referred to as the ‘ISI’) was established on 03.09.1946. By virtue of a Resolution adopted by the Government of India, Bye-Laws were framed laying down the conditions of service of its employees, in terms whereof, the employees were to be governed by similar conditions of service as applicable to the employees of similar status in the Central Government. The ISI was converted into Bureau of Indian Standards (hereinafter referred to as the ‘BIS’ ) by an act of Parliament No. 63 of 1986 known as Bureau of Indian Standards Act, 1986 (hereinafter referred to as the ‘BIS Act’).
2. The rules and regulations were framed there under and the Stenographers/Assistants were put of the scale of pay of Rs. 1,400/- – Rs, 2,600/- in terms of the recommendations of the 4th Pay Revision Commission.
3. The petitioners contended that when the petitioner Nos. 2 to 6 joined the service of the respondent No. 1 as ‘Junior Stenographers’, for the purpose of promotion to the posts of U.D.C.s only they were to be considered. The petitioners herein, however, had been advancing pleas for revision of the scales of pay to Rs. 1,640-60-2,000-DB-75-2,900/- purported on the ground that the employees similarly situated and working under the Government of India are getting the same. A writ petition was filed in this Court for the aforesaid reliefs, which was marked as CWP No. 1663 of 1996.
4. During the pendency of the said writ petition, a notification was issued under Section 38 of the bids Act amending the Bureau of Indian Standards (Terms and Conditions of Service of Employees) Regulation, 1998 (hereinafter referred to as the ‘BIS Regulation’) in terms whereof the revised scale of pay w.e.f. the date of notification was granted. However, in December, 1997, the respondents adopted a policy decision to change the procedure to fill up the posts of Assistants and Stenographers directing that 50% of the said posts will be filled up by promotion and the rest 50% by direct recruitment.
5. This Court, however, in its judgment dated 21.04.1999 inter alia held that the petitioners are entitled to the pay scale of Rs. 1,640/- Rs. 2,900/- w.e.f. 01.01.1986. An appeal An appeal before the Division Bench as also the Special Leave Petition before the Apex Court filed by the respondents herein against the said order / judgment, were dismissed respectively.
6. Thereafter, this writ petition was filed on or about 05.10.2001 praying inter alia as under:-
“a) Issue an appropriate writ order of direction to quash the provision of 50% of Group-B posts by direct recruitment incorporated by the respondents to the Bureau of Indian Standards (Recruitment to Administration, Finance and Other Posts) Regulations, 1988 by way of amendment published in the gazette on 31.12.1997 being ultra vires, illegal, unconstitutional and without jurisdiction.
b) Grant to the petitioners all the benefits accruing to the petitioners during the pendency of the Writ Petition on the basis of the un-amended rules as existing prior to the amendment brought about on 31.12.1997 from the date the same would have accrued to the petitioners but for the impugned amendment.
7. Mr. J.P. Singh, learned counsel appearing on behalf of the petitioners, submitted that the amendment in the promotion policy carried out in the year 1997 is mala fide, as the same was made in view of the fact that the petitioners had filed a writ petition. The learned counsel further contended that the respondent being State within the meaning of Article 12 of the Constitution of India (in short the ‘Constitution’) were bound to make provisions for promotional avenues and in that view of the matter, the impugned amendment must have held to be ultra vires Article 14 and 16 of the Constitution. Reliance in this connection has been placed on Raghunath Prasad v. The Secretary, Home (Police) Department, Government of Bihar and Ors., .
8. The learned counsel further submitted that there does not exist any rationale behind the said policy decision. The learned counsel would urge that, in any event, the said amendment must be given prospective operation.
9. Mr. B.K. Sood, learned counsel appearing on behalf of the respondent No. 1, on the other hand, submitted that the amendment had been carried out having regard the similar conditions of service prevailing in the Central Government. The learned counsel further urged that the petitioners having claimed similar scale of pay to the scales of pay of the employees similarly situated in the Central Government, cannot make any grievance on regard availability of promotional avenues, which was made in consonance with the existing rules governing the Central Government employees. The learned counsel further contended that, in any event, that in view of the fact that the rules were amended in the year 1997, but the writ petition having been filed in the year 2001, the same should not be entertained.
10. In terms of Article 16 of the Constitution, no employee has a right of promotion. He has merely a right to be considered therefore. It is now trite that mere chance of promotion does not confer any right upon the concerned employee(s).
11. The petitioners themselves have all along been contending that their conditions of service should be at par with the employees of the Central Government. In that view of the matter, they have now been granted the scale of pay, which were being paid to the employees of the Central Government, in our considered opinion, they having accepted the same cannot be permitted to contend that the promotional avenues in vogue in relation to the employees of the Central Government would not be applicable in their case.
12. In any event, it is now well-settled principles of law that the employer has the right to change the terms and conditions of service. Changes made in the terms and conditions of service restricting the scope of promotion per se cannot be said to be arbitrary so as to attract the wrath of Articles 14 and 16 of the Constitution.
13. It is not in dispute that in respect of the employees similarly situated in the Central Government, the posts of UDC are filled up in equal proportion by promotion as also by direct recruitment. If, therefore, cannot be said that there did not exist any rationale in making the amendment. Furthermore, by reason of the impugned amendment, the promotional avenues have not been blocked. Those, who are found suitable, would be considered for promotion. The employees can also complete with the outsiders for the purpose of the employment in the higher posts as direct recruitees.
14. In Raghunath Prasad (Supra), the Apex Court was considering a case where the employees, who were serving in the signal (wireless) branch intended to switch over to the general cadre. On a query made by the Court, it was given out that there did not exist any promotional avenue in the signal (wireless) branch, whereupon only an observation was made that reasonable promotional avenues should be available in every wing of public service. In the instant case, such a avenue does exist.
15. It is not a case where action has been taken by the respondents with a view to undo the effect of the judgment.
16. A statutory service rule is legislative in character. The same can be struck down only on the grounds on which legislative measures can be struck down. The Court will not strike down a statutory rule unless it is considered to be unreasonable. It cannot also be struck down on the ground of hardship. See Devi Prasad and Ors. v. Government of Andhra Pradesh and Ors., 1980 SC 1185 and R.L. Bansal and Ors. v. Union of India and Ors., 1992 Supp. (2) SCC 318. The submission of Mr. Singh to the effect that the impugned legislation is mala fide cannot be accepted. Malice is not a ground, which can be permitted to be urged for invalidating a legislation.
17. For the reasons aforementioned, we are of the view that there is no merit in this writ petition, which is dismissed accordingly. However, in the facts and circumstances, there will be no orders as to costs.
