REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6587 OF 2003
Deepak Agarwal & Anr. ... Appellant (s)
VERSUS
State of Uttar Pradesh & Ors. ...Respondent (s)
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. This appeal is directed against the judgment of the
High Court of Judicature at Allahabad dated 16th April,
2002, dismissing the writ petition challenging the
Notification dated 17th May, 1999, wherein the appellants
had been rendered ineligible for promotion to the post of
Deputy Excise Commissioner (DEC) and the Notification
dated 26th May, 1999, promoting respondents No. 3 to 9
as Deputy Excise Commissioner, and further to consider
and promote the appellants as Deputy Excise
1
Commissioner, on the vacancies that arose before
17th May, 1999.
2. Old vacancies have to be filled under the old rules is
the mantra, sought to be invoked by the appellants in
support of their claim that the vacancies arising prior to
17th May, 1999, ought to be filled under the 1983 Rules
as they existed prior to the amendment dated 17th May,
1999. The claim is based on the principle enunciated by
this Court in Y.V.Rangaiah & Ors. Vs. J.Sreenivasa Rao
& Ors.
1
.
3. The appellants were recruited through the Uttar
Pradesh Public Service Commission on Class II posts in
the Excise Department under the Excise Commissioner,
Uttar Pradesh. Deepak Agarwal (hereinafter referred to as
`appellant No.1′) was appointed on the post of Technical
Officer in the pay scale of Rs.2200-4000 by an order
dated 13th August, 1991. Similarly, Jogendra Singh
(hereinafter referred to as `appellant No. 2′) was directly
1 (1983) 3 SCC 284
2
recruited through the Uttar Pradesh Public Service
Commission and appointed on the post of Statistical
Officer by Notification dated 8th January, 1992 in the pay
scale of Rs.2200-4000. It is not disputed that both the
appellants are confirmed in service. There is no adverse
entry in their service record. The appellants are the only
two officers recruited directly to Class II Excise Service.
Otherwise, majority of the officers have entered service as
Inspectors in the Excise Department and subsequently
promoted to higher posts.
4. The U.P. Excise Group `A’ Service Rules, 1983
govern the procedure for recruitment and conditions
service of officers of Group `A’ of the Excise Department.
Initially under Rule 5(2) only Assistant Excise
Commissioners and Technical Officers were eligible for
promotion. Subsequently by amendment of the 1983
Rules on 22nd June, 1998, Statistical Officers were also
made eligible for promotion to the post of Deputy Excise
Commissioner.
3
5. It came to the knowledge of the appellants that U.P.
Excise Officers Sangh, Allahabad had filed a
representation before the State Government in the month
of September, 1998 protesting against the inclusion of
the Technical Officers and Statistical Officers in the
feeder cadre for promotion to the post of Deputy Excise
Commissioner. The appellants, therefore, also made
representations before the Departmental Promotion
Committee (DPC). In the year, 1997-98 and 1998-99,
12 vacancies arose for the post of Deputy Excise
Commissioner. Out of these 12 vacancies, 10 vacancies
had arisen prior to 17th May, 1999 and 2 vacancies had
arisen on 30th June, 1999 due to the retirement of
Deputy / Joint Excise Commissioner. It is the case of the
appellants that they were entitled to be considered for the
aforesaid 10 vacancies under Rule 5(2).
6. Inspite of the representation made by the
appellants, the 1983 Rules were amended on 17th May,
1999. By the aforesaid amendment, the posts of
4
Technical Officers and Statistical Officers have been
excluded from the feeder cadre for promotion to the post
of Deputy Excise Commissioner. This amendment came
just two days before the DPC was scheduled to meet on
19th May, 1999. As a consequence of the amendment, the
DPC did not consider the appellants for promotion. The
justification given for the aforesaid amendment is that
the State Government had taken a “conscious decision”
to exclude the Technical Officers and Statistical Officers
as they were not fit for the post of Deputy Excise
Commissioner because of their peculiar qualifications,
duties, responsibilities and work experience. However, to
compensate for loss of promotion, the pay scale of these
two posts has been upgraded to the level of Deputy
Excise Commissioner.
7. Thereafter, the State Government issued a
Notification dated 26th May, 1999 wherein the State
Government granted promotion to the 10 persons
(Respondent Nos. 3 to 9) to the posts of Deputy Excise
Commissioner. Aggrieved by the same, the appellants
5
filed a writ petition before the Allahabad High Court
challenging the Notification dated 26th May, 1999. It was
also prayed that they should be considered for the posts
of Deputy Excise Commissioner and Notification dated
17th May, 1999 be quashed. The High Court vide its
judgment dated 16th April, 2002 dismissed the petition.
Hence the present appeal.
8. We have heard the exhaustive submissions made by
the learned counsel for parties. Dr. Rajeev Dhawan,
learned senior counsel, appearing for appellants, has
highlighted the primary issues involved herein, which are
as follows:
Whether the State of Uttar Pradesh amendment of
17th May, 1999 in the Schedule is invalid because –
(a) it abolishes Technical Assistant Officers (TAO)
and Statistical Officer (SO) as feeder streams
to the post of Deputy Excise Commissioner.
6
(b) denies TAO and SO the right to be considered
for promotion.
(c) stagnates them by denying any promotional
avenue and merely gives them a `sop’ of
up-gradation with no avenue to promotion.
(d) gives retroactive application to the amendment
to exclude persons covered by the
pre-amended rules of 1983.
SUBMISSIONS ON FACTS -
9. By the amendment, the avenue of promotion of the
appellants has been totally blocked. The up-gradation of
the pay scale is a mere sop. The decision to amend the
rules on 19th May, 1999 came within one year of granting
eligibility to the post of Statistical Officer on 22nd June,
1998. It was unreasonable for the State to do a total
volte-face. Only reason for such a volte-face was the
pressure from the Excise Commissioner to be favoured.
7
SUBMISSIONS ON LAW –
10. Right to be considered for promotion is a valuable
right. The Government is required to make
necessary provision in the rules to remove
stagnation on a particular post and by giving
suitable promotion avenue to its employees.
Learned counsel relied on a decision of this Court in
the case of Food Corporation of India Vs.
Parashot
am Das Bansal2
in support of thesubmissions that the Superior Courts have the
jurisdiction to issue necessary direction to the
Government. He submits, the issue herein, is
squarely covered by the judgment of this Court in
the case of Y.V. Rangaiah (supra). Therefore, the
appellants were entitled to be considered for
promotion against the ten vacancies that occurred
prior to the amendment dated 17th May, 1999.
Reliance is also placed on Rule 7 to show that the
Government has to determine the number of
vacancies to be filled during the course of the year.
2 (2008) 5 SCC 100
8
Learned counsel also relied on the decisions of this
Court in the cases of P. Ganeshwar Rao Vs. State
of
Andhra Pradesh3
, N.T. Devin Katti & Ors. Vs.
Karnat
aka Public Service Commission & Ors.4
A.A. Catton Vs. Direc
tor of Education5
, State of
Rajasthan Vs. R.
Dayal6
and B.L. Gupta Vs.
M.C.D.
7
to emphasis that the rule of prospectivity
application requiring the pre-amendment vacancies
to be considered under the unamended rule is
firmly embedded in the law. He has, however, very
fairly stated that although the normal rule of
prospectivity will apply, a subsidiary rule has come
into existence since 1997 that if the Government
takes a conscious decision not to apply the rule to
pre-amendment vacancies under the old rules, it
has the power to do so.
3 1988 (Supp) SCC 740
4 (1990) 3 SCC 157
5 (1983) 3 SCC 33
6 (1997) 10 SCC 419
7 (1998) 9 SCC 223
9
11. On facts, he submits that there was no legally
binding conscious decision taken in this case. The
criteria laid down in the case of Dr. K. Ramulu &
Anr. Vs. Dr. S. Suryaprakash Rao & Ors.8 has not
been satisfied. He submits that the conscious
decision has to satisfy the test of reasonableness
and relevancy of criteria. In the present case, there
is no evidence of a conscious decision being taken.
The plea was not even raised in the High Court. It is
raised in this Court based on the observations made
by the High Court. Such a conscious decision must
be based on existing facts and cannot be conjured
up in the affidavit to oppose the writ petition. He
further submits that under Note to Rule 8 the
respondents are required to prepare combined
eligibility list of the candidates in order of seniority
determined by the dates of their substantive
appointments. Furthermore, the promotions under
Rule 5(2) are to be made on the basis of the criteria
8 (1997) 3 SCC 59
10
in “The Uttar Pradesh Servants Criterian for
Recruitment by Promotion Rules, 1994.”
12. Rule 4 of these Rules provides that the promotion
shall be made on the basis of seniority subject to the
rejection of the unfit. Under these Rules, Dr. Dhawan
has submitted that the appellants were bound to be
promoted being senior and having a good record of
service. The attempt by the State without amendment in
this rule to introduce comparative merit on irrelevant
considerations to exclude the appellants from the feeder
cadre was ex facie illegal and arbitrary.
13. On the other hand, Mr. P.S. Narasimha, learned
senior counsel for the respondents submitted that:
(i) The amendment in the rules is based on a
conscious decision taken by the Government upon
consideration of the representations of both the
sides.
11
(ii) The ratio in Rangaiah’s case (supra) will not be
applicable in the facts of this case. No selection
before the amendment had taken place in this case.
(iii) The right of the candidate is to be considered
under the Rules in force on the date the
consideration takes place. In support of his
submission, he relied on the decisions of this Court
in the cases of Jai Singh Dalal & Ors. Vs. State of
Haryana
& Anr.9
, Rajasthan Public ServiceCommission Vs. Chanan
Ram & Anr.10
, State ofM.P. & Ors. Vs. Raghuve
er Singh Yadav & Ors.11
,H.S. Grewal Vs. Union
of India & Ors.12
and Dr.K. Ramulu & Anr. Vs. S.Suryaprakash Rao & Ors.
(supra).
(iv) The Officers have only a right of consideration
under the Rules in force.
(v) In this case, there is no acquired or vested
right of the appellants which has been taken away.
He relied on the decisions of this Court in the cases
9 1993 (Supp) 2 SCC 600
10 (1998) 4 SCC 202
11 (1994) 6 SCC 151
12 (1997) 11 SCC 758
12
of High Court of Delhi & Anr. Vs. A.K. Mahajan &
Ors.13, New India Sugar Works Vs. State
of U.P.14
and Dr. K. Ramulu (Supra).
(vi) The issue herein is squarely covered by the
judgment in Dr. K. Ramulu’s case (supra). The
cases relied upon by the appellants have been
explained in the case of Rajasthan Public Service
Commission (Supra).
(vii) The State is conscious of the loss of promotion
avenue to the posts of Senior Technical Officer
(STO) and Senior Statistical Officer (SSO). The Court
can issue necessary directions to the State to
remove any stagnation on the aforesaid two posts.
14. Mr. Dinesh Dwivedi, learned senior counsel for the
State submits that the ratio in the case of Y.V. Rangaiah
(supra) is not applicable in the facts of this case. There is
no requirement under Rule 7 of the applicable rules in
this case to prepare a year wise panel of the selected
13 (2009) 12 SCC 62
14 (1981) 2 SCC 293
13
candidates. Therefore, no acquired or vested right of the
appellants has been taken away. Under Rule 7, the
vacancies have only to be identified. The right accrues
only at the time of consideration for promotions.
Therefore, the amendment has not been given a
retroactive effect. The matter is covered by the judgment
in the case of Dr. K. Ramulu (supra) as a conscious
decision has been taken by the State to exclude the two
parts of STO and SSO from the feeder cadre for
promotion as DEC.
15. We have considered the submissions made by the
learned counsel for parties. Service conditions of the
appellants and the respondents are governed by
U.P. Excise Group `A’ Service Rules, 1983, framed in
exercise of the powers conferred by the proviso of
Article 309 of the Constitution of India. Therefore, it
would be appropriate to notice the relevant provisions of
the Rules at this juncture.
14
Rule 2:- Status of the Service – The Uttar Pradesh
Excise Group `A’ Service is a State service
comprising Group `A’ posts.
Rule 3(g):- “Service” means the Uttar Pradesh Excise
Group `A’ Service;
(h); “Substantive appointment” means an
appointment, not being an adhoc appointment on a
post in the cadre of the service after selection in
accordance with the rules and, if there are no rules,
in accordance, with the procedure prescribed for the
time being by executive instructions issued by the
Government;
(i) “Year of recruitment” means a period of twelve
months commencing from the first day of July of a
calendar year.
15
Rule 4: Cadre of Service – (1) the strength of the
service shall be such as may be determined by the
Government from time to time.
(2) The strength of the service shall, until orders
varying the same are passed under sub-rule (1), be
as follows:
…………………………………………………………………..
Name of the post Number of Posts
…………………………………………………………………..
Permanent Temporary
Joint Excise Commissioner – 6
Deputy Excise Commissioner 11 6
………………………………………………………………….
Provided that –
[i] The appointing authority may leave unfilled or
the Governor may hold in abeyance any vacant
post, without thereby entitling any person to
compensation;
16
[ii] The Governor may create such additional
permanent or temporary posts as he may consider
proper.
Rule 5(2): Recruitment to the post of Deputy Excise
Commissioner shall be made by promotion from
amongst substantively appointed Assistant Excise
Commissioners and Technical Officers who have
completed two years service as such, on their
respective posts, on the first day of the year of
recruitment.
Rule 7: Determination of vacancies – The Appointing
Authority shall determine the number of vacancies
to be filled during the course of the year as also the
number of vacancies, if any, to be reserved for
candidates belonging to Scheduled Castes,
Scheduled Tribes and other categories under
Rule 6.
17
Rule 8(3): The Appointing Authority shall prepare
eligibility list of the candidates in accordance with
the Uttar Pradesh Promotion by Selection (on posts
outside the purview of the Public Service
Commission) Eligibility List Rules, 1986 and place it
before the Selection Committee along with their
character rolls and such other records pertaining to
them as may be considered necessary.
NOTE:- For the purpose of promotion to the post of
Deputy Excise Commissioner, under Rule 5(2), a
combined eligibility list shall be prepared by
arranging the names of Assistant Excise
Commissioners and Technical Officer in order of
seniority as determined by the dates of their
substantive appointment.
16. A perusal of the aforesaid rules would show that
Rule 5, recruitment to the post of Joint Excise
Commissioner shall be made by promotion from amongst
18
substantively appointed Deputy Excise Commissioner.
Under Rule 5(2), recruitment to the post of Deputy Excise
Commissioner shall be made by promotion from amongst
substantively appointed Assistant Excise Commissioners
and Technical Officers, who have completed two years of
service on their respective posts on the first day of the
year of recruitment.
17. The short question that arises for consideration is
as to whether the appellants were entitled to be
considered for promotion on the post of Deputy Excise
Commissioner under the 1983 Rules, on the vacancies,
which occurred prior to the amendment in the
1983 Rules on 17th May, 1999. Under the unamended
1983 Rules, the petitioners would be eligible to be
considered for promotion by virtue of Rule 5(2). By virtue
of the Note to Rule 8, a combined eligibility list has to be
prepared by arranging the names of Assistant Excise
Commissioner and Technical Officers in order of seniority
as determined by the date of their substantive
19
appointment. The appellants were, therefore, clearly in
the feeder cadre of the post for promotion to the post of
Deputy Excise Commissioner. Rule 7 provides that the
Appointing Authority shall determine the vacancies to be
filled during the course of the year and the number of
vacancies. There is no statutory duty cast upon the State
to complete the selection process within a prescribed
period. Nor is there a mandate to fill up the posts within
a particular time. Rather the proviso to Rule 2 enables
the State to leave a particular post unfilled.
18. However, it is a matter of record that the promotions
under the 1983 Rules were to be made on the basis of
the criteria’s laid down in the Uttar Pradesh
Government Criterion for Recruitment by Promotion
Rules, 1994. Rule 4 of these Rules provided that
“Recruitments by promotion………………shall be made
on the basis of seniority subject to the rejection of the
unfit.” Consequently, the appellants would have been
eligible for promotion on the basis of seniority, as
20
determined under the Note to Rule 8. The aforesaid
right for consideration to be promoted on the post of
Deputy Excise Commissioner has been taken away by
the Uttar Pradesh Excise Group `A’ Service (5th
amendment) Rules, 1999.
19.The unamended and the amended Rule 5(3) of the
1983 Rules are as under:
COLUMN 1 COLUMN 2
Existing sub-rule [3] Deputy Sub-rule as hereby
Excise Commissioner - By substituted [3] Deputy
promotion from amongst Excise Commissioner - By
substantively appointed promotion from amongst
Assistant Excise substantively appointed
Commissioners, Technical Assistant Excise
Officers and Statistical Commissioners who have
Officers who have completed completed two years
two years service as such, on service as such on the
their respective posts, on the first day of the year of
first day of the year of recruitment.
recruitment.
From the above, it is evident that under the existing
sub-rule 3, substantively appointed Assistant Excise
Commissioner, Technical Officers and Statistical Officers,
21
who have completed two years of service as such on their
respective posts were entitled to be considered for
promotion on the post of Deputy Excise Commissioner.
By substitution of sub-rule 3, only Assistant Excise
Commissioner, who have completed two years service as
such are made eligible for consideration for promotion as
Deputy Excise Commissioner. It is also a matter of
record that 12 vacancies existed on the post of Deputy
Excise Commissioner for the year 1997-98 and 1998-99.
Out of these 12 vacancies, 10 had arisen prior to 17th
May, 1999 and two vacancies arose on 30th June, 1999.
By virtue of the amendment in sub-rule 3 of Rule 5, the
appellants have been deprived of the right to be
considered for promotion on the post of Deputy Excise
Commissioner. Respondents have been promoted by the
impugned order dated 26th May, 1999 under the
amended Rules.
20. Could the right of the appellants, to be considered
under the unamended 1983 Rules be taken away? The
22
promotions of the 12 vacancies have been made on
26th May, 1999 under the amended Rules. The High
Court rejected the submissions of the appellants that the
controversy herein is squarely covered by the judgment of
this Court in the case of Y.V. Rangaiah (Supra). The
High Court has relied on the judgment of this Court in
Dr. K. Ramulu (supra).
21. We are of the considered opinion that the judgment
in Y.V. Rangaiah’s case (supra) would not be applicable
in the facts and circumstances of this case. The
aforesaid judgment was rendered on the interpretation of
Rule 4(a)(1)(i) of the Andhra Pradesh Registration and
Subordinate Service Rules, 1976. The aforesaid Rule
provided for preparation of a panel for the eligible
candidates every year in the month of September. This
was a statutory duty cast upon the State. The exercise
was required to be conducted each year. Thereafter, only
promotion orders were to be issued. However, no panel
had been prepared for the year 1976. Subsequently, the
23
rule was amended, which rendered the petitioners
therein ineligible to be considered for promotion. In
these circumstances, it was observed by this Court that
the amendment would not be applicable to the vacancies
which had arisen prior to the amendment. The vacancies
which occurred prior to the amendment rules would be
governed by the old rules and not the amended rules. In
the present case, there is no statutory duty cast upon the
respondents to either prepare a year-wise panel of the
eligible candidates or the selected candidates for
promotion. In fact, the proviso to Rule 2 enables the
State to keep any post unfilled. Therefore, clearly there is
no statutory duty which the State could be mandated to
perform under the applicable rules. The requirement to
identify the vacancies in a year or to take a decision how
many posts are to be filled under Rule 7 cannot be
equated with not issuing promotion orders to candidates
duly selected for promotion. In our opinion, the
appellants had not acquired any right to be considered
for promotion. Therefore, it is difficult to accept the
24
submissions of Dr. Rajeev Dhawan that the vacancies,
which had arisen before 17th May, 1999 had to be filled
under the unamended rules.
22. It is by now a settled proposition of law that a
candidate has the right to be considered in the light of
the existing rules, which implies the `rule in force’ on the
date the consideration took place. There is no rule of
universal or absolute application that vacancies are to be
filled invariably by the law existing on the date when the
vacancy arises. The requirement of filling up old
vacancies under the old rules is interlinked with the
candidate having acquired a right to be considered for
promotion. The right to be considered for promotion
accrues on the date of consideration of the eligible
candidates. Unless, of course, the applicable rule, as in
Y.V. Rangaiah’s case (supra) lays down any particular
time frame, within which the selection process is to be
completed. In the present case, consideration for
promotion took place after the amendment came into
25
operation. Thus, it can not be accepted that any accrued
or vested right of the appellants have been taken away by
the amendment. The judgments cited by learned counsel
for the appellants namely B.L. Gupta Vs. MCD (supra),
P. Ganeshwar Rao Vs. State of Andhra Pradesh (supra)
and N.T. Devin Katti & Ors. Vs. Karnataka Public
Service Commission & Ors (supra) are reiterations of a
principle laid down in Y.V. Rangaiah’s case (supra).
23. All these judgments have been considered by this
Court in the case of Rajasthan Public Service
Commission Vs. Chanan Ram & Anr. (supra). In our
opinion, the observations made by this Court in
paragraphs 14 and 15 of the judgment are a complete
answer to the submissions made by Dr. Rajiv Dhawan. In
that case, this Court was considering the abolition of the
post of Assistant Director (Junior) which was substituted
by the post of Marketing Officer. Thus the post of
Assistant Director (Junior) was no longer eligible for
promotion, as the post of Assistant Director had to be
26
filled by 100% promotion from the post of Marketing
Officer. It was, therefore, held that the post had to be
filled under the prevailing rules and not the old rules.
24. In our opinion, the matter is squarely covered by
the ratio of the judgment of this Court in the case of
Dr. K. Ramulu (supra). In the aforesaid case, this Court
considered all the judgments cited by the learned senior
counsel for the appellant and held that Y.V. Rangaiah’s
case (supra) would not be applicable in the facts and
circumstances of that case. It was observed that for
reasons germane to the decision, the Government is
entitled to take a decision not to fill up the existing
vacancies as on the relevant date. It was also held that
when the Government takes a conscious decision and
amends the Rules, the promotions have to be made in
accordance with the rules prevalent at the time when the
consideration takes place.
27
25. The High Court has noticed that the post of Technical
Officers and statistical Officers have been deleted from
the feeder cadre for promotion to the post of Deputy
Excise Commissioner for valid reasons. The
Government was of the opinion that the Technical
Officers and Statistical Officers were not suitable to be
promoted on the post of Deputy Excise Commissioner,
which involved multifarious administrative
responsibilities. The experience gained by the officials
working on the post of Technical Officer and
Statistical Officer was of no relevance for the duties to
be performed on the post of Deputy Excise
Commissioner. Consequently, a conscious decision
was taken to abolish the feeder cadre consisting of
Technical Officers and Statistical Officers for
promotion to the post of Deputy Excise Commissioner.
The Division Bench, therefore, correctly applied the
ratio laid down in Dr. K. Ramulu’s case (supra)
wherein this Court reiterated the ratio in Union of
India Vs. K.V
. Vijeesh15
that for reasons germane to
15 1996 3 SCC 139
28
the decision, the Government is entitled to take a
decision not to fill up the existing vacancies on the
relevant date.
26.We are also unable to accept the submissions of Dr.
Dhawan that the conscious decision taken herein is
not grounded on the relevant facts. A perusal of the
Counter Affidavit filed by the respondent herein shows
that the recruitment of the appellant No.1 has been
made purely with the objective of looking after the
technical work pertaining to pharmacies and
industrial units. Therefore, the requisite qualification
for the post is Degree in Chemical Engineering.
Appellant No.2 has been recruited for compilation,
analysis and maintenance of statistical data of the
Excise Department. The basic qualification for the
post of Statistical Officer is Graduation in Statistics.
It appears that the two categories of posts have been
eliminated as the incumbents on the said posts do not
have any administrative experience. The decision was
29
taken clearly in public interest. Since the decision
has been taken after taking into consideration the
view points of both the sides, it can not be said to be
arbitrary or based on irrelevant considerations. We
also do not find any merit in the submission of Dr.
Dhawan that the amendment has been given a
retroactive operation as the vacancies which arose
prior to the amendment are sought to be filled under
the amended rules.
27. This Court in the case of Jai Singh Dalal Vs. State of
Haryana (supra) has held as under:
“It is clear from the above pleadings that in 1990 the
State Government resolved to resort to special
recruitment to the Haryana Civil Service (Executive
Branch) invoking the proviso to Rule 5 of the rules.
Pursuant thereto, it issued the notifications dated
December 20, 1990 and January 25, 1991. The names
of the candidates were forwarded by the State
Government to the HPSC for selection. The HPSC
commenced the selection process and interviewed
certain candidates. In the meantime, on account of an
undertaking given by the Advocate General to the High
Court at the hearing of C.W.P. No. 1201 of 1991 and
allied writ petitions, the State Government was
required to forward the names of the candidates
belonging to two other departments of the State
Government. Before it could do so, the new
Government came into power and it reviewed the
decision of the earlier Government and found the
criteria evolved by the earlier Government
30
unacceptable and also noticed certain infirmities in
the matter of forwarding the names of eligible
candidates. It, therefore, resolved to rescind the earlier
notifications of December 20, 1990 and January 25,
1991. It will thus be seen that at the time when the
writ petition which has given rise to the present
proceedings was filed, the State Government had
withdrawn the aforesaid two notifications by the
notification dated December 30, 1991. The stage at
which the last-mentioned notification came to be
issued was the stage when the HPSC was still in the
process of selecting candidates for appointment by
special recruitment. During the pendency of the
present proceedings the State Government finalised
the criteria for special recruitment by the notification
of March 9, 1992. Thus, the HPSC was still in the
process of selecting candidates and had yet not
completed and finalised the select list nor had it
forwarded the same to the State Government for
implementation. The candidates, therefore, did not
have any right to appointment. There was, therefore,
no question of the High Court granting a mandamus
or any other writ of the type sought by the appellants.
The law in this behalf appears to be well settled.”
28. Similarly, this view has been reiterated by this
Court in the cases of State of M.P. & Ors. Vs.
Raghuveer Singh Yadav & Ors. (supra), H.S. Grewal Vs.
Union of India & Ors. (supra) and Rajasthan Public
Service Commission Vs. Chanan Ram & Anr. (supra).
This Court in Rajasthan Public Service Commission’s
case (supra) has held that it is the rules which are
prevalent at the time when the consideration took place
31
for promotion, which would be applicable. In Para 17, it
has been held as follows:
“In the case of State of M.P. v. Raghuveer Singh Yadav
a Bench of two learned Judges of this Court consisting
of K. Ramaswamy and N. Venkatachala, JJ., had to
consider the question whether the State could change
a qualification for the recruitment during the process
of recruitment which had not resulted into any final
decision in favour of any candidate. In paragraph 5 of
the Report in this connection it was observed that it is
settled law that the State has got power to prescribe
qualification for recruitment. In the case before the
Court pursuant to the amended Rules, the
Government had withdrawn the earlier notification
and wanted to proceed with the recruitment afresh. It
was held that this was not the case of any accrued
right. The candidates who had appeared for the
examination and passed the written examination had
only legitimate expectation to be considered according
to the rules then in vogue. The amended Rules had
only prospective operation. The Government was
entitled to conduct selection in accordance with the
changed rules and make final recruitment. Obviously
no candidate acquired any vested right against the
State. Therefore, the State was entitled to withdraw
the notification by which it had previously notified
recruitment and to issue fresh notification in that
regard on the basis of the amended Rules. In the case
of J&K Public Service Commission v. Dr Narinder
Mohan9 another Division Bench of two learned Judges
of this Court consisting of K. Ramaswamy and N.P.
Singh, JJ. considered the question of interception of
recruitment process earlier undertaken by the
recruiting agency. In this connection it was observed
that the process of selection against existing and
anticipated vacancies does not create any right to be
appointed to the post which can be enforced by a
mandamus. It has to be recalled that in fairness
learned Senior Counsel, Shri Ganpule for the
respondent-writ petitioner, stated that it is not his
case that the writ petitioner should be appointed to
the advertised post. All that he claimed was his right
to be considered for recruitment to the advertised post
as per the earlier advertisement dated 5-11-1993
Annexure P-1 and nothing more. In our view, the
aforesaid limited contention also, on the facts of the
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present case, cannot be of any assistance to the writ
petitioner as the earlier selection process itself had
become infructuous and otiose on the abolition of the
advertised posts, as we have seen earlier. The second
point, therefore, will have to be answered in the
negative in favour of the appellants and against the
respondent-writ petitioner.”
29. It may be that the removal of the two posts from the
feeder cadre would lead to some stagnation for the
officers working on the two aforesaid posts. In fact, the
Government seems to recognize such a situation. It is
perhaps for this reason that the posts have been
upgraded to the post of Deputy Excise Commissioner.
However, mere upgradation of the post may not be
sufficient compensation for the officers working on the
two posts for loss of opportunity to be promoted on the
post of Deputy Excise Commissioner.
30. In such circumstances, the Government may be well
advised to have a re-look at the promotion policy to
provide some opportunity of further promotion to the
officers working on these posts.
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31. With these observations, the impugned judgment is
affirmed and the appeal is accordingly dismissed with no
order as to costs.
…………………………………….J.
[B. Sudershan Reddy]
……………………………………..J.
[Surinder Singh Nijjar]
New Delhi;
March 31, 2011.
34