Aparesh Kumar Singh, J. - (1.) HEARD learned counsel for the parties.
(2.) THE legal issued involved in this writ petition is in relation to the construction of Rules 7(3) of the Jharkhand Secretariat Services Rules, 2010. Petitioner is Upper Division Clerk having qualification of Matriculation which was the minimum eligibility criteria required at the time of entering in service as a typist in undivided State of Bihar when he was appointed on 01.07.1987. Post of Secretarial Typist was converted as Upper Division Clerk and the petitioner was designated as Upper Division Clerk in 2007. He got allocated to the State of Jharkhand upon bifurcation of the parent State of Bihar by virtue of the Provisions of Bihar Reorganization Act, 2000 vide notification dated 03.02.2011 issued by the Deputy Inspector General of Police(Provision), Bihar, Patna, Annexure -4 in terms of the decision of the Ministry of Personnel, Public Grievances and Pension, Government of India order No. 13 Jhr./10 dated 12.10.2010 (Annexure -3). The Jharkhand Secretariat Service Rule, 2010 were framed in exercise of powers conferred under proviso to Article 309 of the Constitution of India by the order of Governor of the State. It provides for the Constitution of Jharkhand Secretariat Services, Appointment and Service Conditions etc. and such other incidental matter. It has been made effective from the date of Gazette Notification i.e. 03.08.2010. Different cadre of Secretariat service are enumerated in Rule 3 starting from Assistant Grade, Section Officer Grade, Grade -I, Selection Grade (equivalent to the rank of Deputy Secretary) and Senior Selection Grade (equivalent to the rank of Joint Secretary). The post of Assistants are Non Gazetted Post while rest of them are gazetted post. The relevant provisions which relate to the petitioner's case are contained in Rule -7, which lays down the provisions for recruitment to the post of Assistant Grade and Section Officer. Both Hindi and English version of the Rules as published in the Extraordinary Gazette Notification and are enclosed by the petitioner. Provisions of Rule 7 are quoted hereinunder: - - "7. RECRUITMENT TO GRADE I, SECTION OFFICERS' AND THE ASSISTANTS' GRADE: - - (1) Grade -I Vacancies in Grade I shall be filled up by promotion on the basis of Seniority -cum -fitness of the Section Officers who have rendered not less than eight year of approved service. (2) Section Officers Grade 50% of regular posts in the Section Officers' Grade shall be filled by promotion on the basis of seniority -cum -fitness of Assistants who have rendered not less than eight years of approved service in the Assistant Grade. Remaining 50% shall be filled up through Limited Departmental Competitive Examination (LDCE) for Assistants who have completed three years of service in the Assistants Grade and having graduate qualification. "Provided that UDC's having graduate qualification and at least seven years of approved service in the respective grades, may also be allowed to appear in the Limited Departmental Competitive Examination to be conducted for appointment to the post of Section Officers as a one time measure, but such a concession shall be limited to be availed of in the first Limited Departmental Competitive Examination (LDCE) only to be held immediately after the extant recruitment rules have become effective. Thereafter this one time special provision shall be deemed to have lapsed permanently." (3) Assistants' Grade Seventy five per cent of the regular posts in the Assistants' Grade shall be filled up by direct recruitment on the basis of a competitive examination held by the Commission for this purpose, from time to time. The minimum educational qualification for appointment to Assistant Grade shall be Graduation. Fifteen percent of regular posts shall be filled up by promotion of Upper Division Clerks included in the select list for the Assistant Grade. Remaining ten percent of regular posts shall be filled up through LDCE for Upper Division Clerks of JSCS and Stenographers(both having 5 years of approved service and Graduate Qualification) to be held by the Commission for the purpose, from time to time. (4) Department of Personnel, Administrative Reforms and Rajbhasa shall frame Rules for the competitive examination and will allocate candidates on the basis of the results of such examinations to various departments and offices." Learned counsel for the petitioner has made following submission in relation to the provisions of Rule 7(3). According to him, perusal of Rule 7(3) shows that for the purposes of direct recruitment to 75% regular posts in the Assistants' Grade, the minimum educational qualification for appointment is graduation. Remaining 10 % of regular posts should be filled up through Limited Departmental Competitive Examination for Upper Division Clerks of JSCS i.e. Jharkhand Secretariat and Clerical Services and Stenographers, who qualified 5 years of approved service and have Graduate Qualification. It is submitted that Rule making authority has consciously not prescribed qualification of Graduation for 15% quota for promotion of Upper Division Clerks to the Assistants' Grade. Respondents have, however, taken a contrary view and insisted upon qualification of Graduation for the purposes of promotion also, which has aggrieved the petitioner to approach this Court.
(3.) LEANED counsel for the petitioner has relied upon the provisions of Section 73 of the Bihar Reorganization Act and submitted that petitioner's service conditions cannot be altered without consent of the Government of India. In this case those incumbents of the Upper Division Clerk Cadre who has been retained in successor State of Bihar have got promotion to the post of Assistants' Grade, based upon their matriculation qualification and no higher qualification was required. The provisions of the instant Rule if read in the manner otherwise would amount to change in the service conditions of the petitioner to his detriment. He would be denied chances of promotion. Consideration for promotion is a fundamental right and cannot be taken away.;