JUDGMENT :

Ravi Ranjan, J.

The instant writ petition has been filed under Article 226 of the Constitution of India wherein following prayers have been made :-

(a) A writ of and/or order and/or direction in the nature of writ of mandamus, or a writ of certiorari or any other appropriate writ, order or direction to declare Rule 7 of the Jharkhand Home Guard (Gazetted) service Rule, 2016 as unconstitutional and ultra vires which issued by the Government of Jharkhand vide notification dated 9/8/2016 vide memo no. 3848 (Annexure-2);

(b) A writ of and/or order and/or direction in the nature of writ of mandamus, or a writ of certiorari or any other appropriate writ, order or direction, under Article 226 of the Constitution of India Rule 7 of the Jharkhand Home Guard (Gazetted) Service Rule, 2016 as unconstitutional and ultra vires;

(c) A writ of and/or order and/or direction in the nature of writ of mandamus, or a writ of certiorari or any other appropriate writ, order or direction, under Article 226 of the Constitution of India Rule 7 of the Jharkhand Home Guard (Gazetted) Service Rule, 2016 contrary to law and provision as well Resolution no.1565 dated 10/12/1976.

2. The brief facts of the case, as per the pleadings made in the writ petition, which are required to be enumerated, read as under :-

The writ petitioners claim to have joined on the post of Company Commander, Jharkhand Home Guard in the year 2012 in different districts. The State Government has taken a decision sometime in the year 1955 regarding ratio for appointment to the post of District Commandant to be filled up through direct recruitment to the extent of 50% and 50% by way of promotion.

After bifurcation of the State of Bihar, the State of Jharkhand has come out with a rule to be known as “Jharkhand Home Guard (Gazetted) Service Rule, 2016” which contains a provision for appointment of District Commandant by way of promotion to the extent of 25% and 75% through direct recruitment.

The case of the writ petitioners is that at the time of joining in service there was a provision regarding ratio for appointment to the post of District Commandant to be filled up through promotion to the extent of 50% of the vacancies which may increase to 100% subject to condition that there must be eligible candidates available in feeder cadre. But the said rule has been amended in purported exercise of power conferred under Section 12(1) of the Jharkhand Home Guards Act, 2005 by reducing the quota of the post to be filled up through promotion to the extent of only 25% and the rest 75% to be filled up through direct recruitment.

3. Mr. Anil Kumar Sinha, learned senior counsel appearing for the petitioners assisted by Mr. Mohan Kumar Dubey, learned counsel, has submitted by taking aid of the provision of Section 73 of the Bihar Reorganization Act, 2000 which contains a provision that there cannot be any alteration in the service condition of public servant. According to him since the chance of promotion is a condition of service, as such, by reducing the quota of the post to be filled up by way of promotion from 50% to 25% is alteration in the service condition which hits the provision of Section 73 of the Bihar Reorganization Act, 2000 and, as such, the aforesaid provision is not sustainable in the eyes of law and hence, fit to be struck down.

Learned senior counsel has fortified his argument by referring to the judgment rendered by the Hon'ble Apex Court in T.R. Kapur and Others v. State of Haryana and Others [1986 (Supp) SCC 584]. He submits that on the very same set of facts, the judgment has been passed by Hon'ble Apex Court treating the chance of promotion to be service condition and since amendment has been made in the recruitment rule so far as it relates to the promotion in the cadre which has been considered by Hon'ble Apex Court in the aforesaid case as alteration of the service c