(1) This is a petition under Art. 226 of the, Constitution for the issue of a writ of mandamus or other appropriate order, writ or direction, directing the State of. Madras to recognise the petitioner as an Upper Division Clerk in the office of the Commissioner, Hindu Religious and Charitable Endowments, as and from 1-12-1947.
(2) The history of the service of the petitioner as set out by him in his affidavit is as follows. The petitioner entered service On 23-8--1944, as-acting second division clerk in the office of the Hindu Religious Endowments Board which was in existence prior to the enactment of Madras Act XIX of 1951. Between the date 1-12-1947 to 30-9-1949 for a period of one year, two mouths and 17 days, he was officiating as an Upper Division Clerk having been promoted from the lower division cadre to the upper division cadre.
Under rule 30 of the Madras Ministerial Services rules a lower division clerk promoted to the higher cadre prior to 3-9-1951 need not pass any test for confirmation as Upper division clerk. After 30-9-1949 he was reverted to the lower division cadre but in 1954 and 1955 he was promoted as upper division clerk for short periods of service. On 20-5-1955, he was reverted to the lower division cadre. The petitioner made representations to the authorities that he should be given permanent posting as an upper division clerk. On 16-1-1957 the petitioner received a communication from the office of the Commissioner, Hindu Religious and Charitable Endowments that he will not be promoted as Upper division clerk unless he passed the required tests. The petitioner states that the Commissioner sent up proposals to the Government to regularise his services as upper division clerk prior to 30-9-1951 but that the proposals did not meet with the approval of the Government.
The petitioner alleges that several other clerks, whose names are mentioned in the supplemental affidavit filed by him, who were in the same position as himself have been confirmed as upper division clerks without their being obliged to pass the required test. The petitioner appealed to the Government urging his claims but was not successful. Then he issued a suit notice to the Government but on 8-12-1958 he received a communication from the Government stating. that his threatened suit was awaited. The petitioner complaints that he has been treated unjustly by the Government, and that the act of the Government in not promoting him to the upper division cadre is discriminatory and violative of his fundamental rights under the Constitution.
(3) This writ petition was filed on 24-4-1961. There has been an inordinate delay on the part of the petitioner to seek his remedies in this court. The petitioner pleads justification for the delay in the following manner in para 5 of his affidavit 'I state that I did not file a writ petition immediately thereafter for the reason firstly such an action may jeopardise my position as an employee of the Government and secondly I was expecting that the department will realise the injustice done to me and meet out justice. I was taking all possible steps all this time with the Government to reconsider my case. Unfortunately my endeavours and expectations have not materialised. Hence I am filing this writ petition.
(4) I am not satisfied with the explanation given by the petitioner for his tardiness in not moving this court till 1961, though he had suffered an adverse order in 1958 when the Government refused to recognise his claim. With commendable frankness the petitioner has submitted that he did not want to antagonise the Government against him by preferring a writ petition in this court. But, surely, that cannot help him to get over the legal infirmities arising out of delay and laches.
(5) The petitioner's grievance that he has not been promoted to the upper division cadre from the lower division because of the failure of the Government to exempt him from passing the required test is not a matter which can be ventilated in a court of law. Members of a civil service, of the Union or of a State, hold office during the pleasure of the President or the Governor, but wear a mantle of protection against being dismissed, removed or reduced in rank without being given a reasonable opportunity of showing cause against the proposed adverse action. But for the constitutional armour their official fortunes are linked up with the pleasure of the constitutional heads. The conditions of service form an elaborate code consisting of rules which are detailed and minute in character. They have the force of a statute being framed or having been framed under Art. 309 of the Constitution but they are not part of the Constitution itself. In practice they are followed and obeyed literally and substantially. Irregularities in the observance of the rules may occur. But a civil servant aggrieved by such irregularities cannot have recourse to the court of law either in the form of a suit or action or in the form of a prerogative writ except in cases of violation of the provisions of Art. 311 of the Constitution. This is now an indisputable axiom of law resulting from the constitutional provisions relating to civil servants.
(6) Promotions from the lower ranks to the higher ranks of civil service are also guided by rules to some extent. Though as a rule seniority may facilitate and help promotion, suitability, fit-ness and merit play a large part. A reduction in rank is a punishment, but the failure to secure a promotion need not necessarily be a punishment unless it be that it is inflicted as a result of the framing of a charge and an enquiry. No servant has a claim to ask for promotion as right and the giving or refusal of promotion is matter within the exclusive discretionary domain of the executive authorities concerned matter.
(7) The chapter of fundamental rights guaranteed by the Constitution contains provisions with regard to appointment to services. Article 16 is as follows:
1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for, or discriminated against in respect of any employment or office under the State...............
4. Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posh in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the State.'
This special form of equality of opportunity in matters relating to employment and appointment has been guaranteed by the Constitution in addition to the general equal protection of laws provided for under Art. 14. It may be assumed-that the words 'appointment or employment' occurring in Art. 16 are wide enough to cover promotions from one rank of office to the higher rank.
(8) In Banarsidas v. State of Uttar Pradesh, : 1SCR357 , it has been held that the equality guaranteed under Arts. 14 and 16 of the Constitution cannot take away the right of the Government to pick and choose proper Persons for employment in Government service. At p. 361 (of SCR): (at p. 522, of AIR), Sinha J. as he then was observed as follows:
'Art. 16 of the Constitution is an instance of the application of the general rule of equality laid down in Art. 14, with special reference to the opportunity for appointment and employment under the Government. Like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Government.'
It cannot be said that the act of the Government in exempting some members of service from passing the test required to be passed for promotion and its denial of such exemption to other members by itself constitutes an unequal discriminatory treatment violative of the equality clause. It may be that such exemption was granted to de-serving members of the service and was refused to members who in their view were not competent to be given promotion. If it is open to the Government to deny promotion from a lower division cadre to the upper division cadre even to a member who has passed the prescribed tests, there is nothing improper in the Government refusing promotion to a member who has not made him-self qualified to earn it. The granting of exemption depends upon the opinion of the Government about the competency and merits of the candidate applying for an exemption. Even accepting the averments contained in the affidavit of the petitioner, I am unable to see that the act of the Government in not giving promotion to the petitioner has resulted in any infringement of his fundamental rights under the Constitution.
(9) The petition fails and is dismissed.
(10) Petition dismissed.