{"id":62341,"date":"2011-03-31T00:00:00","date_gmt":"2011-03-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/deepak-agrawal-anr-vs-state-of-u-p-ors-on-31-march-2011"},"modified":"2018-08-14T07:03:39","modified_gmt":"2018-08-14T01:33:39","slug":"deepak-agrawal-anr-vs-state-of-u-p-ors-on-31-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/deepak-agrawal-anr-vs-state-of-u-p-ors-on-31-march-2011","title":{"rendered":"Deepak Agrawal & Anr vs State Of U.P. & Ors on 31 March, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Deepak Agrawal & Anr vs State Of U.P. & Ors on 31 March, 2011<\/div>\n
Author: S S Nijjar<\/div>\n
Bench: B. Sudershan Reddy, Surinder Singh Nijjar<\/div>\n
                                                                  REPORTABLE\n\n\n\n\n                IN THE SUPREME COURT OF INDIA\n\n                  CIVIL APPELLATE JURISDICTION\n\n\n\n\n                CIVIL APPEAL NO. 6587 OF 2003\n\n\n\n\nDeepak Agarwal & Anr.                         ... Appellant (s)\n\n\nVERSUS\n\n\nState of Uttar Pradesh & Ors.             ...Respondent (s)\n\n\n\n\n                         J U D G M E N T\n<\/pre>\n
SURINDER SINGH NIJJAR, J.\n<\/p>\n
1.         This appeal is directed against the judgment of the <\/p>\n
High   Court   of   Judicature   at   Allahabad   dated   16th  April, <\/p>\n
2002,   dismissing   the   writ   petition   challenging   the <\/p>\n
Notification dated 17th May, 1999, wherein the appellants <\/p>\n
had been rendered ineligible for promotion  to  the post of <\/p>\n
Deputy   Excise   Commissioner   (DEC)   and   the   Notification <\/p>\n
dated 26th  May, 1999, promoting respondents No. 3 to 9 <\/p>\n
as Deputy Excise Commissioner, and further to consider <\/p>\n
and   promote   the   appellants   as   Deputy   Excise <\/p>\n
                                                                    1<\/span><\/p>\n
      Commissioner,   on   the   vacancies   that   arose   before <\/p>\n
      17th May, 1999.\n<\/p>\n
      2.    Old vacancies have to be filled under the old rules is <\/p>\n
      the   mantra,   sought   to   be   invoked   by   the   appellants   in <\/p>\n
      support of their claim that the vacancies arising prior to <\/p>\n
      17th  May, 1999, ought to be filled under the 1983 Rules <\/p>\n
      as  they   existed   prior   to  the  amendment   dated   17th  May, <\/p>\n
      1999. The claim is based on the principle enunciated by <\/p>\n
      this Court in Y.V.Rangaiah & Ors. Vs. J.Sreenivasa Rao <\/p>\n
      & Ors.\n<\/p>\n
                1<\/span><\/p>\n
                  .\n<\/p>\n
      3.    The   appellants   were   recruited   through   the   Uttar <\/p>\n
      Pradesh   Public   Service   Commission   on  Class   II   posts   in <\/p>\n
      the   Excise   Department   under   the   Excise   Commissioner, <\/p>\n
      Uttar Pradesh. Deepak Agarwal (hereinafter referred to as <\/p>\n
      `appellant  No.1′)   was  appointed  on  the  post  of  Technical <\/p>\n
      Officer   in   the   pay   scale   of   Rs.2200-4000   by   an   order <\/p>\n
      dated   13th  August,   1991.   Similarly,   Jogendra   Singh <\/p>\n
      (hereinafter   referred  to   as   `appellant   No.   2′)   was   directly <\/p>\n
1 (1983) 3 SCC 284<\/p>\n
                                                                             2<\/span><\/p>\n
recruited   through   the   Uttar   Pradesh   Public   Service <\/p>\n
Commission   and   appointed   on   the   post   of   Statistical <\/p>\n
Officer by Notification dated 8th January, 1992 in the pay <\/p>\n
scale   of   Rs.2200-4000.   It   is   not   disputed   that   both   the <\/p>\n
appellants   are   confirmed   in   service.   There   is   no  adverse <\/p>\n
entry in their service record. The appellants are the only <\/p>\n
two   officers   recruited   directly   to   Class   II   Excise   Service.\n<\/p>\n
Otherwise, majority of the officers have entered service as <\/p>\n
Inspectors   in   the   Excise   Department   and   subsequently <\/p>\n
promoted to higher posts.\n<\/p>\n
4.    The   U.P.   Excise   Group   `A’   Service   Rules,   1983 <\/p>\n
govern   the   procedure   for   recruitment   and   conditions <\/p>\n
service of officers of Group `A’ of the Excise Department.\n<\/p>\n
Initially   under   Rule   5(2)   only   Assistant   Excise <\/p>\n
Commissioners   and   Technical   Officers   were   eligible   for <\/p>\n
promotion.       Subsequently   by   amendment   of   the   1983 <\/p>\n
Rules   on   22nd  June,   1998,   Statistical   Officers   were   also <\/p>\n
made eligible for promotion to the post of Deputy Excise <\/p>\n
Commissioner.\n<\/p>\n
                                                                        3<\/span><\/p>\n
5.    It came to the knowledge of the appellants that U.P.\n<\/p>\n
Excise   Officers   Sangh,   Allahabad   had   filed   a <\/p>\n
representation before the State Government in the month <\/p>\n
of   September,   1998   protesting   against   the   inclusion   of <\/p>\n
the   Technical   Officers   and   Statistical   Officers   in   the <\/p>\n
feeder   cadre   for   promotion   to   the   post   of   Deputy   Excise <\/p>\n
Commissioner.   The   appellants,   therefore,   also   made <\/p>\n
representations   before   the   Departmental   Promotion <\/p>\n
Committee   (DPC).   In   the   year,   1997-98   and   1998-99, <\/p>\n
12   vacancies   arose   for   the   post   of   Deputy   Excise <\/p>\n
Commissioner.   Out of these 12 vacancies, 10 vacancies <\/p>\n
had arisen prior to 17th  May, 1999 and 2 vacancies  had <\/p>\n
arisen   on   30th  June,   1999   due   to   the   retirement   of <\/p>\n
Deputy \/ Joint Excise Commissioner. It is the case of the <\/p>\n
appellants that they were entitled to be considered for the <\/p>\n
aforesaid 10 vacancies under Rule 5(2).\n<\/p>\n
6.    Inspite   of   the   representation   made   by   the <\/p>\n
appellants,   the   1983   Rules   were   amended   on   17th  May, <\/p>\n
1999.   By   the   aforesaid   amendment,   the   posts   of <\/p>\n
                                                                      4<\/span><\/p>\n
Technical   Officers   and   Statistical   Officers   have   been <\/p>\n
excluded from the feeder cadre for promotion to the post <\/p>\n
of   Deputy   Excise   Commissioner.   This   amendment   came <\/p>\n
just two days before the DPC was scheduled to meet on <\/p>\n
19th May, 1999. As a consequence of the amendment, the <\/p>\n
DPC did not consider the appellants for promotion.   The <\/p>\n
justification   given   for   the   aforesaid   amendment   is   that <\/p>\n
the   State   Government   had   taken   a   “conscious   decision”\n<\/p>\n
to   exclude  the   Technical   Officers  and  Statistical   Officers <\/p>\n
as   they   were   not   fit   for   the   post   of   Deputy   Excise <\/p>\n
Commissioner   because   of   their   peculiar   qualifications, <\/p>\n
duties, responsibilities and work experience. However, to <\/p>\n
compensate for loss of promotion, the pay scale of these <\/p>\n
two   posts   has   been   upgraded   to   the   level   of   Deputy <\/p>\n
Excise Commissioner.\n<\/p>\n
7.    Thereafter,   the   State   Government   issued   a <\/p>\n
Notification   dated   26th  May,   1999   wherein   the   State <\/p>\n
Government   granted   promotion   to   the   10   persons <\/p>\n
(Respondent   Nos.   3   to   9)   to   the   posts   of   Deputy   Excise <\/p>\n
Commissioner.   Aggrieved   by   the   same,   the   appellants <\/p>\n
                                                                       5<\/span><\/p>\n
filed   a   writ   petition   before   the   Allahabad   High   Court <\/p>\n
challenging the Notification dated 26th  May, 1999. It was <\/p>\n
also prayed that they should be considered for the posts <\/p>\n
of   Deputy   Excise   Commissioner   and   Notification   dated <\/p>\n
17th  May,   1999   be   quashed.   The   High   Court   vide   its <\/p>\n
judgment   dated   16th  April,   2002   dismissed   the   petition.\n<\/p>\n
Hence the present appeal.\n<\/p>\n
8.     We have heard the exhaustive submissions made by <\/p>\n
the   learned   counsel   for   parties.   Dr.   Rajeev   Dhawan, <\/p>\n
learned   senior   counsel,   appearing   for   appellants,   has <\/p>\n
highlighted the primary issues involved herein, which are <\/p>\n
as follows:\n<\/p>\n
       Whether   the   State   of   Uttar   Pradesh   amendment   of <\/p>\n
       17th May, 1999 in the Schedule is invalid because –<\/p>\n<\/blockquote>\n
       (a)    it  abolishes  Technical  Assistant  Officers  (TAO) <\/p>\n
              and   Statistical   Officer   (SO)   as   feeder   streams <\/p>\n
              to the post of Deputy Excise Commissioner.<\/p>\n
                                                                      6<\/span><\/p>\n<\/blockquote>\n
       (b)     denies TAO and SO the right to be considered <\/p>\n
               for promotion.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
       (c)     stagnates   them   by   denying   any   promotional <\/p>\n
               avenue   and   merely   gives   them   a   `sop’   of <\/p>\n
               up-gradation with no avenue to promotion.<\/p><\/blockquote>\n
\n\n\n\n       (d)     gives retroactive application to the amendment \n\n\n\n               to      exclude      persons      covered         by      the \n\n\n\n               pre-amended rules of 1983. \n\n\n\n\n\nSUBMISSIONS ON FACTS -\n\n\n<\/pre>\n
9.     By the amendment, the avenue of promotion of the <\/p>\n
appellants has been totally blocked. The up-gradation of <\/p>\n
the   pay   scale   is   a   mere   sop.   The   decision   to   amend   the <\/p>\n
rules on 19th May, 1999 came within one year of granting <\/p>\n
eligibility   to   the   post   of   Statistical   Officer   on   22nd  June, <\/p>\n
1998.   It   was   unreasonable   for   the   State   to   do   a   total <\/p>\n
volte-face.   Only   reason   for   such   a   volte-face   was   the <\/p>\n
pressure from the Excise Commissioner to be favoured. <\/p>\n
                                                                          7<\/span><\/p>\n<\/blockquote>\n
      SUBMISSIONS ON LAW –\n<\/p><\/blockquote>\n
<\/blockquote>\n
      10.    Right   to   be   considered   for   promotion   is   a   valuable <\/p>\n
             right.   The   Government   is   required   to   make <\/p>\n
             necessary   provision   in   the   rules   to   remove <\/p>\n
             stagnation   on   a   particular   post   and   by   giving <\/p>\n
             suitable   promotion   avenue   to   its   employees. <\/p>\n
             Learned counsel relied on a decision of this Court in <\/p>\n
             the   case   of     Food   Corporation   of   India             Vs. <\/p>\n
             Parashot
\n                         am   Das   Bansal2
\n                                                        in   support   of   the <\/p>\n
             submissions   that   the   Superior   Courts   have   the <\/p>\n
             jurisdiction   to   issue   necessary   direction   to   the <\/p>\n
             Government.   He   submits,   the   issue   herein,   is <\/p>\n
             squarely   covered   by   the   judgment   of   this   Court   in <\/p>\n
             the   case   of  Y.V.   Rangaiah   (supra).   Therefore,   the <\/p>\n
             appellants   were   entitled   to   be   considered   for <\/p>\n
             promotion   against   the   ten   vacancies   that   occurred <\/p>\n
             prior   to   the   amendment   dated   17th  May,   1999. <\/p>\n
             Reliance   is   also   placed   on   Rule   7   to   show   that  the <\/p>\n
             Government   has   to   determine   the   number   of <\/p>\n
             vacancies to be filled during the course of the year. <\/p>\n<\/blockquote>\n
2 (2008) 5 SCC 100<\/p>\n
                                                                               8<\/span><\/p>\n
             Learned counsel also relied on the decisions of this <\/p>\n
             Court in the cases of  P. Ganeshwar Rao  Vs.  State <\/p>\n
             of
\n                  Andhra   Pradesh3
\n                                            ,  N.T.   Devin   Katti   &   Ors.  Vs. <\/p>\n
             Karnat
\n                       aka   Public   Service   Commission   &   Ors.4<\/p>\n
             A.A.   Catton  Vs.  Direc
\n                                              tor   of   Education5
\n                                                                       ,  State   of <\/p>\n
             Rajasthan  Vs.  R.\n<\/p>\n
                                        Dayal6
\n                                                        and  B.L.   Gupta  Vs. <\/p>\n
             M.C.D.\n<\/p>\n
                       7<\/span><\/p>\n
                           to   emphasis   that   the   rule   of   prospectivity <\/p>\n
             application  requiring the pre-amendment vacancies <\/p>\n
             to   be   considered   under   the   unamended   rule   is <\/p>\n
             firmly   embedded  in   the   law.   He   has,  however,   very <\/p>\n
             fairly   stated   that   although   the   normal   rule   of <\/p>\n
             prospectivity will apply, a subsidiary rule has come <\/p>\n
             into   existence   since   1997   that   if   the   Government <\/p>\n
             takes  a  conscious   decision  not  to   apply   the   rule  to <\/p>\n
             pre-amendment   vacancies   under   the   old   rules,   it <\/p>\n
             has the power to do so.\n<\/p>\n
3 1988 (Supp) SCC 740<\/p>\n
4 (1990) 3 SCC 157<\/p>\n
5 (1983) 3 SCC 33<\/p>\n
6 (1997) 10 SCC 419<\/p>\n
7 (1998) 9 SCC 223<\/p>\n
                                                                                 9<\/span><\/p>\n
      11.    On   facts,   he   submits   that   there   was   no   legally <\/p>\n
             binding   conscious   decision   taken   in   this   case.   The <\/p>\n
             criteria   laid   down   in   the   case   of  Dr.   K.   Ramulu   & <\/p>\n
             Anr.  Vs. Dr. S. Suryaprakash Rao & Ors.8  has not <\/p>\n
             been   satisfied.   He   submits   that   the   conscious <\/p>\n
             decision   has   to   satisfy   the   test   of   reasonableness <\/p>\n
             and relevancy of criteria. In the present case, there <\/p>\n
             is no evidence of a conscious decision being taken.\n<\/p>\n
             The plea was not even raised in the High Court. It is <\/p>\n
             raised in this Court based on the observations made <\/p>\n
             by the High Court. Such a conscious decision must <\/p>\n
             be   based   on   existing   facts   and   cannot   be   conjured <\/p>\n
             up   in   the   affidavit   to   oppose   the   writ   petition.   He <\/p>\n
             further   submits   that   under   Note   to   Rule   8   the <\/p>\n
             respondents   are   required   to   prepare   combined <\/p>\n
             eligibility list of the candidates  in order of seniority <\/p>\n
             determined   by   the   dates   of   their   substantive <\/p>\n
             appointments.   Furthermore,   the   promotions   under <\/p>\n
             Rule 5(2) are to be made on the basis of the criteria <\/p>\n
8 (1997) 3 SCC 59<\/p>\n
                                                                               10<\/span><\/p>\n
       in   “The   Uttar   Pradesh   Servants   Criterian   for <\/p>\n
       Recruitment by Promotion Rules, 1994.”\n<\/p>\n
12.    Rule   4   of   these   Rules   provides   that   the   promotion <\/p>\n
shall   be   made   on   the   basis   of   seniority   subject   to   the <\/p>\n
rejection   of   the   unfit.     Under   these   Rules,   Dr.   Dhawan <\/p>\n
has   submitted   that   the   appellants   were   bound   to   be <\/p>\n
promoted   being   senior   and   having   a   good   record   of <\/p>\n
service. The attempt by the State without amendment in <\/p>\n
this   rule   to   introduce   comparative   merit   on   irrelevant <\/p>\n
considerations to exclude the appellants from the feeder <\/p>\n
cadre was ex facie illegal and arbitrary.\n<\/p>\n
13.    On   the   other   hand,   Mr.   P.S.   Narasimha,   learned <\/p>\n
senior counsel for the respondents submitted that:\n<\/p>\n
       (i)   The   amendment   in   the   rules   is   based   on   a <\/p>\n
       conscious   decision   taken   by   the   Government   upon <\/p>\n
       consideration   of   the   representations   of   both   the <\/p>\n
       sides.\n<\/p><\/blockquote>\n
\n
                                                                       11<\/span><\/p>\n<\/blockquote>\n
             (ii) The ratio in  Rangaiah’s case (supra)  will not be <\/p>\n
             applicable   in   the   facts   of   this   case.   No   selection <\/p>\n
             before the amendment had taken place in this case. <\/p>\n<\/blockquote>\n
             (iii)     The  right  of  the  candidate   is   to   be   considered <\/p>\n
             under   the   Rules   in   force   on   the   date   the <\/p>\n
             consideration   takes   place.   In   support   of   his <\/p>\n
             submission, he relied on the decisions of this Court <\/p>\n
             in the cases of Jai Singh Dalal & Ors. Vs. State of <\/p>\n
             Haryana
\n                              &   Anr.9
\n                                              ,     Rajasthan   Public   Service <\/p>\n
             Commission  Vs.  Chanan
\n                                                         Ram   &   Anr.10
\n                                                                          ,  State   of <\/p>\n
             M.P. & Ors.  Vs.  Raghuve
\n                                                      er Singh Yadav & Ors.11
\n                                                                                       , <\/p>\n
             H.S. Grewal Vs. Union
\n                                                    of India & Ors.12
\n                                                                         and      Dr. <\/p>\n
             K. Ramulu & Anr. Vs. S.Suryaprakash Rao & Ors. <\/p>\n
             (supra).\n<\/p><\/blockquote>\n
<\/blockquote>\n
             (iv)      The Officers have only a right of consideration <\/p>\n
             under the Rules in force.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
             (v)       In   this   case,   there   is   no   acquired   or   vested <\/p>\n
             right of the appellants which has been taken away. <\/p><\/blockquote>\n
             He relied on the decisions of this Court in the cases <\/p>\n
9 1993 (Supp) 2 SCC 600<\/p>\n
10 (1998) 4 SCC 202<\/p>\n
11 (1994) 6 SCC 151<\/p>\n
12 (1997) 11 SCC 758<\/p>\n
                                                                                    12<\/span><\/p>\n
             of High Court of Delhi & Anr. Vs. A.K. Mahajan & <\/p>\n
             Ors.13,  New India Sugar Works  Vs.  State
\n                                                                     of U.P.14<\/p>\n
             and Dr. K. Ramulu (Supra).\n<\/p>\n
             (vi)      The   issue   herein   is   squarely   covered   by   the <\/p>\n
             judgment   in  Dr.   K.   Ramulu’s   case  (supra).   The <\/p>\n
             cases   relied   upon   by   the   appellants   have   been <\/p>\n
             explained   in   the   case   of  Rajasthan   Public  Service <\/p>\n
             Commission (Supra).\n<\/p>\n
             (vii)  The State is conscious of the loss of promotion <\/p>\n
             avenue   to   the   posts   of   Senior   Technical   Officer <\/p>\n
             (STO) and Senior Statistical Officer (SSO). The Court <\/p>\n
             can   issue   necessary   directions   to   the   State   to <\/p>\n
             remove any stagnation on the aforesaid two posts.\n<\/p>\n
      14.    Mr.   Dinesh  Dwivedi,  learned   senior counsel  for  the <\/p>\n
      State submits that the ratio in the case of Y.V. Rangaiah <\/p>\n
      (supra) is not applicable in the facts of this case. There is <\/p>\n
      no   requirement   under   Rule   7   of   the   applicable   rules   in <\/p>\n
      this   case   to   prepare   a   year   wise   panel   of   the   selected <\/p>\n
13 (2009) 12 SCC 62<\/p>\n
14 (1981) 2 SCC 293<\/p>\n
                                                                              13<\/span><\/p>\n
candidates. Therefore, no acquired or vested right of the <\/p>\n
appellants   has   been   taken   away.   Under   Rule   7,   the <\/p>\n
vacancies   have   only   to   be   identified.   The   right   accrues <\/p>\n
only   at   the   time   of   consideration   for   promotions.\n<\/p>\n
Therefore,   the   amendment   has   not   been   given   a <\/p>\n
retroactive effect. The matter is covered by the judgment <\/p>\n
in   the   case   of  Dr.   K.   Ramulu   (supra)  as   a   conscious <\/p>\n
decision has been taken by the State to exclude the two <\/p>\n
parts   of   STO   and   SSO   from   the   feeder   cadre   for <\/p>\n
promotion as DEC.\n<\/p>\n
15.    We   have   considered   the   submissions   made   by   the <\/p>\n
learned   counsel   for   parties.     Service   conditions   of   the <\/p>\n
appellants   and   the   respondents   are   governed   by <\/p>\n
U.P.   Excise   Group   `A’   Service   Rules,   1983,   framed   in <\/p>\n
exercise   of   the   powers   conferred   by   the   proviso   of <\/p>\n
Article   309   of   the   Constitution   of   India.   Therefore,   it <\/p>\n
would be appropriate to notice the relevant provisions of <\/p>\n
the Rules at this juncture.\n<\/p>\n
                                                                     14<\/span><\/p>\n
Rule   2:-   Status   of   the   Service   –   The   Uttar   Pradesh <\/p>\n
Excise   Group   `A’   Service   is   a   State   service <\/p>\n
comprising Group `A’ posts.\n<\/p>\n
Rule 3(g):- “Service” means the Uttar Pradesh Excise <\/p>\n
Group `A’ Service;\n<\/p>\n
(h);         “Substantive         appointment”         means         an <\/p>\n
appointment, not being an adhoc appointment on a <\/p>\n
post   in   the   cadre   of   the   service   after   selection   in <\/p>\n
accordance with the rules and, if there are no rules, <\/p>\n
in accordance, with the procedure prescribed for the <\/p>\n
time   being   by   executive   instructions   issued   by   the <\/p>\n
Government;\n<\/p>\n
(i)   “Year   of   recruitment”   means   a   period   of   twelve <\/p>\n
months commencing from the first day of July of a <\/p>\n
calendar year.\n<\/p>\n
                                                                     15<\/span><\/p>\n
     Rule 4:        Cadre  of  Service  –  (1)  the   strength  of  the <\/p>\n
     service shall be such  as may  be determined  by the <\/p>\n
     Government from time to time.\n<\/p>\n
     (2)   The   strength   of   the   service   shall,   until   orders <\/p>\n
     varying the same are passed under sub-rule (1), be <\/p>\n
     as follows:\n<\/p>\n
     …………………………………………………………………..\n<\/p>\n
     Name of the post                        Number of Posts<\/p>\n
     …………………………………………………………………..\n<\/p>\n
                                         Permanent     Temporary<\/p>\n
     Joint Excise Commissioner                 –               6<\/span><\/p>\n
     Deputy Excise Commissioner     11                         6<\/span><\/p>\n
     ………………………………………………………………….\n<\/p>\n
     Provided that –\n<\/p>\n
     [i]   The   appointing   authority   may   leave   unfilled   or <\/p>\n
     the   Governor   may   hold   in   abeyance   any   vacant <\/p>\n
     post,   without   thereby   entitling   any   person   to <\/p>\n
     compensation;\n<\/p>\n
                                                                     16<\/span><\/p>\n
[ii]   The   Governor   may   create   such   additional <\/p>\n
permanent   or   temporary   posts   as   he   may   consider <\/p>\n
proper.\n<\/p>\n
Rule 5(2): Recruitment to the post of Deputy Excise <\/p>\n
Commissioner   shall   be   made   by   promotion   from <\/p>\n
amongst   substantively   appointed   Assistant   Excise <\/p>\n
Commissioners   and   Technical   Officers   who   have <\/p>\n
completed   two   years   service   as   such,   on   their <\/p>\n
respective   posts,   on   the   first   day   of   the   year   of <\/p>\n
recruitment.\n<\/p>\n
Rule 7: Determination of vacancies – The Appointing <\/p>\n
Authority   shall   determine   the   number   of   vacancies <\/p>\n
to be filled during the course of the year as also the <\/p>\n
number   of   vacancies,   if   any,   to   be   reserved   for <\/p>\n
candidates   belonging   to   Scheduled   Castes, <\/p>\n
Scheduled   Tribes   and   other   categories   under <\/p>\n
Rule 6.\n<\/p>\n
                                                                17<\/span><\/p>\n
       Rule   8(3):   The   Appointing   Authority   shall   prepare <\/p>\n
       eligibility   list   of   the   candidates   in   accordance   with <\/p>\n
       the Uttar Pradesh Promotion by Selection (on posts <\/p>\n
       outside   the   purview   of   the   Public   Service <\/p>\n
       Commission) Eligibility List Rules, 1986 and place it <\/p>\n
       before   the   Selection   Committee   along   with   their <\/p>\n
       character rolls and such other records pertaining to <\/p>\n
       them as may be considered necessary.\n<\/p>\n
       NOTE:-  For the purpose of promotion to the post of <\/p>\n
       Deputy   Excise   Commissioner,   under   Rule   5(2),   a <\/p>\n
       combined   eligibility   list   shall   be   prepared   by <\/p>\n
       arranging   the   names   of   Assistant   Excise <\/p>\n
       Commissioners   and   Technical   Officer   in   order   of <\/p>\n
       seniority   as   determined   by   the   dates   of   their <\/p>\n
       substantive appointment.\n<\/p>\n
16.    A   perusal   of   the   aforesaid   rules   would   show   that <\/p>\n
Rule   5,   recruitment   to   the   post   of   Joint   Excise <\/p>\n
Commissioner shall be made by promotion from amongst <\/p>\n
                                                                       18<\/span><\/p>\n
substantively   appointed   Deputy   Excise   Commissioner.\n<\/p>\n
Under Rule 5(2), recruitment to the post of Deputy Excise <\/p>\n
Commissioner shall be made by promotion from amongst <\/p>\n
substantively appointed Assistant Excise Commissioners <\/p>\n
and Technical Officers, who have completed two years of <\/p>\n
service   on   their   respective   posts   on   the   first   day   of   the <\/p>\n
year of recruitment.\n<\/p>\n
17.    The   short   question   that   arises   for   consideration   is <\/p>\n
as   to   whether   the   appellants   were   entitled   to   be <\/p>\n
considered   for   promotion   on   the   post   of   Deputy   Excise <\/p>\n
Commissioner   under   the   1983   Rules,   on   the   vacancies, <\/p>\n
which   occurred   prior   to   the   amendment   in   the <\/p>\n
1983   Rules   on   17th  May,   1999.     Under   the   unamended <\/p>\n
1983   Rules,   the   petitioners   would   be   eligible   to   be <\/p>\n
considered for promotion by virtue of Rule 5(2).  By virtue <\/p>\n
of the Note to Rule 8, a combined eligibility list has to be <\/p>\n
prepared   by   arranging   the   names   of   Assistant   Excise <\/p>\n
Commissioner and Technical Officers in order of seniority <\/p>\n
as   determined   by   the   date   of   their   substantive <\/p>\n
                                                                          19<\/span><\/p>\n
appointment.     The   appellants   were,   therefore,   clearly   in <\/p>\n
the feeder cadre of the post for promotion to the post of <\/p>\n
Deputy   Excise   Commissioner.   Rule   7   provides   that   the <\/p>\n
Appointing Authority shall determine the vacancies to be <\/p>\n
filled   during   the   course   of   the   year   and   the   number   of <\/p>\n
vacancies. There is no statutory duty cast upon the State <\/p>\n
to   complete   the   selection   process   within   a   prescribed <\/p>\n
period. Nor is there a mandate to fill up the posts within <\/p>\n
a   particular   time.   Rather   the   proviso   to   Rule   2   enables <\/p>\n
the State to leave a particular post unfilled.\n<\/p>\n
18. However, it  is  a matter  of  record  that  the  promotions <\/p>\n
    under the 1983 Rules were to be made on the basis of <\/p>\n
    the   criteria’s   laid   down   in   the   Uttar   Pradesh <\/p>\n
    Government   Criterion   for   Recruitment   by   Promotion <\/p>\n
    Rules,   1994.     Rule   4   of   these   Rules   provided   that <\/p>\n
    “Recruitments by promotion………………shall be made <\/p>\n
    on the basis of seniority subject to the rejection of the <\/p>\n
    unfit.”  Consequently, the appellants would have been <\/p>\n
    eligible   for   promotion   on   the   basis   of   seniority,   as <\/p>\n
                                                                       20<\/span><\/p>\n
   determined   under   the   Note   to   Rule   8.     The   aforesaid <\/p>\n
   right  for  consideration   to  be  promoted  on  the  post  of <\/p>\n
   Deputy Excise Commissioner has been taken away by <\/p>\n
   the   Uttar   Pradesh   Excise   Group   `A’   Service   (5th <\/p>\n
   amendment) Rules, 1999.\n<\/p>\n
19.The   unamended   and   the   amended   Rule   5(3)   of   the <\/p>\n
   1983 Rules are as under:\n<\/p>\n
             COLUMN 1                              COLUMN 2\n\nExisting sub-rule [3] Deputy             Sub-rule               as              hereby \n\nExcise Commissioner - By                 substituted       [3]     Deputy \n\npromotion from amongst                   Excise Commissioner - By \n\nsubstantively appointed                  promotion   from   amongst \n\nAssistant Excise                         substantively                appointed \n\nCommissioners, Technical                 Assistant                              Excise \n\nOfficers and Statistical                 Commissioners   who   have \n\nOfficers who have completed              completed              two              years \n\ntwo years service as such, on            service   as   such   on   the \n\ntheir respective posts, on the           first   day   of   the   year   of \n\nfirst day of the year of                 recruitment.\n\nrecruitment.      \n\n             \n\n\n\n<\/pre>\n
From   the   above,   it   is   evident   that   under   the   existing <\/p>\n
sub-rule   3,   substantively   appointed   Assistant   Excise <\/p>\n
Commissioner, Technical Officers and Statistical Officers, <\/p>\n
                                                                                  21<\/span><\/p>\n
who have completed two years of service as such on their <\/p>\n
respective   posts   were   entitled   to   be   considered   for <\/p>\n
promotion   on   the   post   of   Deputy   Excise   Commissioner.\n<\/p>\n
By   substitution   of   sub-rule   3,   only   Assistant   Excise <\/p>\n
Commissioner, who have completed two years service as <\/p>\n
such are made eligible for consideration for promotion as <\/p>\n
Deputy   Excise   Commissioner.     It   is   also   a   matter   of <\/p>\n
record   that   12   vacancies   existed   on   the   post   of   Deputy <\/p>\n
Excise Commissioner for the year 1997-98 and 1998-99.\n<\/p>\n
Out   of   these   12   vacancies,   10   had   arisen   prior   to   17th <\/p>\n
May, 1999 and two vacancies arose on 30th  June, 1999.\n<\/p>\n
By virtue of the amendment in sub-rule 3 of Rule 5, the <\/p>\n
appellants   have   been   deprived   of   the   right   to   be <\/p>\n
considered   for   promotion   on   the   post   of   Deputy   Excise <\/p>\n
Commissioner.   Respondents   have   been  promoted  by  the <\/p>\n
impugned   order   dated   26th           May,   1999   under   the <\/p>\n
amended Rules.\n<\/p>\n
20.    Could   the   right   of   the   appellants,   to   be   considered <\/p>\n
under   the   unamended   1983   Rules   be   taken   away?   The <\/p>\n
                                                                        22<\/span><\/p>\n
promotions   of   the   12   vacancies   have   been   made   on <\/p>\n
26th  May,   1999   under   the   amended   Rules.     The   High <\/p>\n
Court rejected the submissions of the appellants that the <\/p>\n
controversy herein is squarely covered by the judgment of <\/p>\n
this   Court   in   the   case   of  Y.V.   Rangaiah   (Supra).     The <\/p>\n
High   Court   has   relied   on   the   judgment   of   this   Court   in <\/p>\n
Dr. K. Ramulu (supra).\n<\/p>\n
21.    We are of the considered opinion that the judgment <\/p>\n
in  Y.V. Rangaiah’s  case (supra)  would not be applicable <\/p>\n
in   the   facts   and   circumstances   of   this   case.     The <\/p>\n
aforesaid judgment was rendered on the interpretation of <\/p>\n
Rule   4(a)(1)(i)   of   the   Andhra   Pradesh   Registration   and <\/p>\n
Subordinate   Service   Rules,   1976.     The   aforesaid   Rule <\/p>\n
provided   for   preparation   of   a   panel   for   the   eligible <\/p>\n
candidates   every   year   in   the   month   of   September.   This <\/p>\n
was   a   statutory   duty   cast   upon   the   State.   The   exercise <\/p>\n
was required to be conducted each year. Thereafter, only <\/p>\n
promotion  orders  were to be  issued.   However,  no panel <\/p>\n
had been prepared for the year 1976.   Subsequently, the <\/p>\n
                                                                       23<\/span><\/p>\n
rule   was   amended,   which   rendered   the   petitioners <\/p>\n
therein   ineligible   to   be   considered   for   promotion.     In <\/p>\n
these  circumstances,   it was  observed  by  this Court   that <\/p>\n
the amendment would not be applicable to the vacancies <\/p>\n
which had arisen prior to the amendment.  The vacancies <\/p>\n
which   occurred   prior   to   the   amendment   rules   would   be <\/p>\n
governed by the old rules and not the amended rules.  In <\/p>\n
the present case, there is no statutory duty cast upon the <\/p>\n
respondents   to   either   prepare   a   year-wise   panel   of   the <\/p>\n
eligible   candidates   or   the   selected   candidates   for <\/p>\n
promotion.   In   fact,   the   proviso   to   Rule   2   enables   the <\/p>\n
State to keep any post unfilled. Therefore, clearly there is <\/p>\n
no statutory duty which the State could be mandated to <\/p>\n
perform   under   the   applicable   rules.   The   requirement   to <\/p>\n
identify the vacancies in a year or to take a decision how <\/p>\n
many   posts   are   to   be   filled   under   Rule   7   cannot   be <\/p>\n
equated with not issuing promotion orders to candidates <\/p>\n
duly   selected   for   promotion.   In   our   opinion,   the <\/p>\n
appellants   had   not   acquired   any   right   to   be   considered <\/p>\n
for   promotion.   Therefore,   it   is   difficult   to   accept   the <\/p>\n
                                                                     24<\/span><\/p>\n
submissions   of   Dr.   Rajeev   Dhawan   that   the   vacancies, <\/p>\n
which   had   arisen   before   17th  May,   1999   had   to   be  filled <\/p>\n
under the unamended rules.\n<\/p>\n
22.    It   is   by   now   a   settled   proposition   of   law   that   a <\/p>\n
candidate   has   the   right   to   be   considered   in   the   light   of <\/p>\n
the existing rules, which implies the `rule in force’ on the <\/p>\n
date   the   consideration   took   place.     There   is   no   rule   of <\/p>\n
universal or absolute application that vacancies are to be <\/p>\n
filled invariably by the law existing on the date when the <\/p>\n
vacancy   arises.     The   requirement   of   filling   up   old <\/p>\n
vacancies   under   the   old   rules   is   interlinked   with   the <\/p>\n
candidate   having   acquired   a   right   to   be   considered   for <\/p>\n
promotion.     The   right   to   be   considered   for   promotion <\/p>\n
accrues   on   the   date   of   consideration   of   the   eligible <\/p>\n
candidates.   Unless, of course, the applicable rule, as in <\/p>\n
Y.V.   Rangaiah’s   case   (supra)  lays   down   any   particular <\/p>\n
time   frame,   within   which   the   selection   process   is   to   be <\/p>\n
completed.     In   the   present   case,   consideration   for <\/p>\n
promotion   took   place   after   the   amendment   came   into <\/p>\n
                                                                         25<\/span><\/p>\n
operation.  Thus, it can not be accepted that any accrued <\/p>\n
or vested right of the appellants have been taken away by <\/p>\n
the amendment. The judgments cited by learned counsel <\/p>\n
for   the   appellants   namely  B.L.   Gupta  Vs.  MCD  (supra), <\/p>\n
P. Ganeshwar Rao Vs. State of Andhra Pradesh (supra) <\/p>\n
and  N.T.   Devin   Katti   &   Ors.  Vs.  Karnataka   Public <\/p>\n
Service Commission & Ors  (supra)  are reiterations of a <\/p>\n
principle laid down in Y.V. Rangaiah’s case (supra).\n<\/p>\n
23.    All   these   judgments   have   been   considered   by   this <\/p>\n
Court   in   the   case   of       Rajasthan   Public   Service <\/p>\n
Commission  Vs.  Chanan   Ram   &   Anr.  (supra).    In   our <\/p>\n
opinion,   the   observations   made   by   this   Court   in <\/p>\n
paragraphs   14   and   15   of   the   judgment   are   a   complete <\/p>\n
answer to the submissions made by Dr. Rajiv Dhawan. In <\/p>\n
that case, this Court was considering the abolition of the <\/p>\n
post of Assistant Director (Junior) which was substituted <\/p>\n
by   the   post   of   Marketing   Officer.   Thus   the   post   of <\/p>\n
Assistant   Director   (Junior)   was   no   longer   eligible   for <\/p>\n
promotion,   as   the   post   of   Assistant   Director   had   to   be <\/p>\n
                                                                     26<\/span><\/p>\n
filled   by   100%   promotion   from   the   post   of   Marketing <\/p>\n
Officer.   It   was,   therefore,   held   that   the   post   had   to   be <\/p>\n
filled under the prevailing rules and not the old rules.\n<\/p>\n
24.     In   our   opinion,   the   matter   is   squarely   covered   by <\/p>\n
the   ratio   of   the   judgment   of   this   Court   in   the   case   of <\/p>\n
Dr. K. Ramulu (supra).  In the aforesaid case, this Court <\/p>\n
considered all the judgments cited by the learned senior <\/p>\n
counsel for the appellant and held that  Y.V. Rangaiah’s <\/p>\n
case   (supra)  would   not   be   applicable   in   the   facts   and <\/p>\n
circumstances   of   that   case.     It   was   observed   that   for <\/p>\n
reasons   germane   to   the   decision,   the   Government   is <\/p>\n
entitled   to   take   a   decision   not   to   fill   up   the   existing <\/p>\n
vacancies as on the relevant date.   It was also held that <\/p>\n
when   the   Government   takes   a   conscious   decision   and <\/p>\n
amends   the   Rules,   the   promotions   have   to   be   made   in <\/p>\n
accordance with the rules prevalent at the time when the <\/p>\n
consideration takes place.\n<\/p>\n
                                                                         27<\/span><\/p>\n
      25. The High Court has noticed that the post of Technical <\/p>\n
          Officers and statistical Officers have been deleted from <\/p>\n
          the   feeder   cadre   for   promotion   to   the   post   of   Deputy <\/p>\n
          Excise   Commissioner   for   valid   reasons.                   The <\/p>\n
          Government   was   of   the   opinion   that   the   Technical <\/p>\n
          Officers and Statistical Officers were not suitable to be <\/p>\n
          promoted on the post of Deputy Excise Commissioner, <\/p>\n
          which           involved         multifarious         administrative <\/p>\n
          responsibilities.  The experience gained by the officials <\/p>\n
          working   on   the   post   of   Technical   Officer   and <\/p>\n
          Statistical Officer was of no relevance for the duties to <\/p>\n
          be   performed   on   the   post   of   Deputy   Excise <\/p>\n
          Commissioner.     Consequently,   a   conscious   decision <\/p>\n
          was   taken   to   abolish   the   feeder   cadre   consisting   of <\/p>\n
          Technical   Officers   and   Statistical   Officers   for <\/p>\n
          promotion to the post of Deputy Excise Commissioner.\n<\/p>\n
          The   Division   Bench,   therefore,   correctly   applied   the <\/p>\n
          ratio   laid   down   in  Dr.   K.   Ramulu’s  case   (supra) <\/p>\n
          wherein   this   Court   reiterated   the   ratio   in  Union   of <\/p>\n
          India  Vs.  K.V
\n                                . Vijeesh15
\n                                                that for reasons germane to <\/p>\n
15 1996 3 SCC 139<\/p>\n
                                                                             28<\/span><\/p>\n
   the   decision,   the   Government   is   entitled   to   take   a <\/p>\n
   decision   not   to   fill   up   the   existing   vacancies   on   the <\/p>\n
   relevant date.\n<\/p>\n
26.We are also unable to accept the submissions of   Dr. <\/p>\n
   Dhawan   that   the   conscious   decision   taken   herein   is <\/p>\n
   not grounded on the relevant facts.   A perusal of the <\/p>\n
   Counter Affidavit filed by the respondent herein shows <\/p>\n
   that   the   recruitment   of   the   appellant   No.1   has   been <\/p>\n
   made   purely   with   the   objective   of   looking   after   the <\/p>\n
   technical   work   pertaining   to   pharmacies   and <\/p>\n
   industrial units.   Therefore, the requisite qualification <\/p>\n
   for   the   post   is   Degree   in   Chemical   Engineering.\n<\/p>\n
   Appellant   No.2   has   been   recruited   for   compilation, <\/p>\n
   analysis   and   maintenance   of   statistical   data   of   the <\/p>\n
   Excise   Department.     The   basic   qualification   for   the <\/p>\n
   post   of   Statistical   Officer   is   Graduation   in   Statistics.\n<\/p>\n
   It appears that the two categories of posts have been <\/p>\n
   eliminated as the incumbents on the said posts do not <\/p>\n
   have any administrative experience.  The decision was <\/p>\n
                                                                       29<\/span><\/p>\n
   taken   clearly   in   public   interest.     Since   the   decision <\/p>\n
   has   been   taken   after   taking   into   consideration   the <\/p>\n
   view points of both the sides, it can not be said to be <\/p>\n
   arbitrary   or   based   on   irrelevant   considerations.   We <\/p>\n
   also   do   not   find   any   merit   in   the   submission   of   Dr. <\/p>\n
   Dhawan   that   the   amendment   has   been   given   a <\/p>\n
   retroactive   operation   as   the   vacancies   which   arose <\/p>\n
   prior to the amendment are sought to be filled under <\/p>\n
   the amended rules.\n<\/p>\n
27. This Court in the case of Jai Singh Dalal Vs. State of <\/p>\n
   Haryana (supra) has held as under:\n<\/p>\n
     “It is clear from the above pleadings  that in 1990 the <\/p>\n
     State   Government   resolved   to   resort   to   special <\/p>\n
     recruitment   to   the   Haryana   Civil   Service   (Executive <\/p>\n
     Branch)   invoking   the   proviso   to   Rule   5   of   the   rules.\n<\/p>\n
     Pursuant   thereto,   it   issued   the   notifications   dated <\/p>\n
     December 20, 1990 and January 25, 1991. The names <\/p>\n
     of   the   candidates   were   forwarded   by   the   State <\/p>\n
     Government   to   the   HPSC   for   selection.   The   HPSC <\/p>\n
     commenced   the   selection   process   and   interviewed <\/p>\n
     certain candidates. In the meantime, on account of an <\/p>\n
     undertaking given by the Advocate General to the High <\/p>\n
     Court  at the hearing  of  C.W.P.  No.  1201 of  1991 and <\/p>\n
     allied   writ   petitions,   the   State   Government   was <\/p>\n
     required   to   forward   the   names   of   the   candidates <\/p>\n
     belonging   to   two   other   departments   of   the   State <\/p>\n
     Government.   Before   it   could   do   so,   the   new <\/p>\n
     Government   came   into   power   and   it   reviewed   the <\/p>\n
     decision   of   the   earlier   Government   and   found   the <\/p>\n
     criteria   evolved   by   the   earlier   Government <\/p>\n
                                                                                30<\/span><\/p>\n
       unacceptable   and   also   noticed   certain   infirmities   in <\/p>\n
       the   matter   of   forwarding   the   names   of   eligible <\/p>\n
       candidates. It, therefore, resolved to rescind the earlier <\/p>\n
       notifications   of   December   20,   1990   and   January   25, <\/p>\n
       1991.   It   will   thus   be   seen   that   at   the   time   when   the <\/p>\n
       writ   petition   which   has   given   rise   to   the   present <\/p>\n
       proceedings   was   filed,   the   State   Government   had <\/p>\n
       withdrawn   the   aforesaid   two   notifications   by   the <\/p>\n
       notification   dated   December   30,   1991.   The   stage   at <\/p>\n
       which   the   last-mentioned   notification   came   to   be <\/p>\n
       issued   was   the   stage   when   the   HPSC   was   still   in   the <\/p>\n
       process   of   selecting   candidates   for   appointment   by <\/p>\n
       special   recruitment.   During   the   pendency   of   the <\/p>\n
       present   proceedings   the   State   Government   finalised <\/p>\n
       the   criteria   for   special   recruitment   by   the   notification <\/p>\n
       of   March   9,   1992.   Thus,   the   HPSC   was   still   in   the <\/p>\n
       process   of   selecting   candidates   and   had   yet   not <\/p>\n
       completed   and   finalised   the   select   list   nor   had   it <\/p>\n
       forwarded   the   same   to   the   State   Government   for <\/p>\n
       implementation.   The   candidates,   therefore,   did   not <\/p>\n
       have   any   right   to   appointment.   There   was,   therefore, <\/p>\n
       no   question   of   the   High   Court   granting   a   mandamus <\/p>\n
       or any other writ of the type sought by the appellants.\n<\/p>\n
       The law in this behalf appears to be well settled.”\n<\/p>\n
28.    Similarly,   this   view   has   been   reiterated   by   this <\/p>\n
Court   in   the   cases   of  State   of   M.P.   &   Ors.  Vs. <\/p>\n
Raghuveer Singh Yadav & Ors. (supra), H.S. Grewal Vs. <\/p>\n
Union   of   India   &   Ors.  (supra)  and  Rajasthan   Public <\/p>\n
Service   Commission  Vs.  Chanan   Ram   &   Anr.  (supra).\n<\/p>\n
This   Court   in  Rajasthan   Public   Service   Commission’s <\/p>\n
case   (supra)  has   held   that   it   is   the   rules   which   are <\/p>\n
prevalent   at   the   time   when   the   consideration   took   place <\/p>\n
                                                                                      31<\/span><\/p>\n
for promotion, which would be applicable. In Para 17, it <\/p>\n
has been held as follows:\n<\/p>\n
     “In the case of State  of M.P.  v.  Raghuveer Singh Yadav<\/a> <\/p>\n
     a Bench of two learned Judges of this Court consisting <\/p>\n
     of   K.   Ramaswamy   and   N.   Venkatachala,   JJ.,   had   to <\/p>\n
     consider the question whether the State could change <\/p>\n
     a  qualification   for  the  recruitment   during   the   process <\/p>\n
     of   recruitment   which   had   not   resulted   into   any   final <\/p>\n
     decision in favour of any candidate. In paragraph 5 of <\/p>\n
     the Report in this connection it was observed that it is <\/p>\n
     settled   law   that   the   State   has   got   power   to   prescribe <\/p>\n
     qualification   for   recruitment.   In   the   case   before   the <\/p>\n
     Court   pursuant   to   the   amended   Rules,   the <\/p>\n
     Government   had   withdrawn   the   earlier   notification <\/p>\n
     and wanted to proceed with the recruitment afresh. It <\/p>\n
     was   held   that   this   was   not   the   case   of   any   accrued <\/p>\n
     right.   The   candidates   who   had   appeared   for   the <\/p>\n
     examination   and   passed   the   written   examination   had <\/p>\n
     only legitimate expectation to be considered according <\/p>\n
     to   the   rules   then   in   vogue.   The   amended   Rules   had <\/p>\n
     only   prospective   operation.   The   Government   was <\/p>\n
     entitled   to   conduct   selection   in   accordance   with   the <\/p>\n
     changed   rules   and   make   final   recruitment.   Obviously <\/p>\n
     no   candidate   acquired   any   vested   right   against   the <\/p>\n
     State.   Therefore,   the   State   was   entitled   to   withdraw <\/p>\n
     the   notification   by   which   it   had   previously   notified <\/p>\n
     recruitment   and   to   issue   fresh   notification   in   that <\/p>\n
     regard on the basis of the amended Rules. In the case <\/p>\n
     of  J&K   Public   Service   Commission  v.  Dr   Narinder  <\/p>\n
     Mohan9<\/a> another Division Bench of two learned Judges <\/p>\n
     of   this   Court   consisting   of   K.   Ramaswamy   and   N.P. <\/p>\n
     Singh,   JJ.   considered   the   question   of   interception   of <\/p>\n
     recruitment   process   earlier   undertaken   by   the <\/p>\n
     recruiting   agency.   In   this   connection   it   was   observed <\/p>\n
     that   the   process   of   selection   against   existing   and <\/p>\n
     anticipated   vacancies   does   not   create   any   right   to   be <\/p>\n
     appointed   to   the   post   which   can   be   enforced   by   a <\/p>\n
     mandamus.   It   has   to         be   recalled   that   in   fairness <\/p>\n
     learned   Senior   Counsel,   Shri   Ganpule   for   the <\/p>\n
     respondent-writ   petitioner,   stated   that   it   is   not   his <\/p>\n
     case   that   the   writ   petitioner   should   be   appointed   to <\/p>\n
     the  advertised   post.  All  that   he   claimed   was   his  right <\/p>\n
     to be considered for recruitment to the advertised post <\/p>\n
     as   per   the   earlier   advertisement   dated   5-11-1993 <\/p>\n
     Annexure   P-1   and   nothing   more.   In   our   view,   the <\/p>\n
     aforesaid   limited   contention   also,   on   the   facts   of   the <\/p>\n
                                                                                 32<\/span><\/p>\n
       present   case,   cannot  be   of   any   assistance   to   the   writ <\/p>\n
       petitioner   as   the   earlier   selection   process   itself   had <\/p>\n
       become infructuous and otiose on the abolition of the <\/p>\n
       advertised  posts, as we have seen earlier. The second <\/p>\n
       point,   therefore,   will   have   to   be   answered   in   the <\/p>\n
       negative   in   favour   of   the   appellants   and   against   the <\/p>\n
       respondent-writ petitioner.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
29.    It may be that the removal of the two posts from the <\/p>\n
feeder   cadre   would   lead   to   some   stagnation   for   the <\/p>\n
officers working on the two aforesaid posts.   In fact, the <\/p>\n
Government   seems   to   recognize   such   a   situation.     It   is <\/p>\n
perhaps   for   this   reason   that   the   posts   have   been <\/p>\n
upgraded   to   the   post   of   Deputy   Excise   Commissioner.\n<\/p>\n
However,   mere   upgradation   of   the   post   may   not   be <\/p>\n
sufficient   compensation   for   the   officers   working   on   the <\/p>\n
two   posts   for   loss   of   opportunity   to   be   promoted   on   the <\/p>\n
post of Deputy Excise Commissioner.\n<\/p>\n
30.    In such circumstances, the Government may be well <\/p>\n
advised   to   have   a   re-look   at   the   promotion   policy   to <\/p>\n
provide   some   opportunity   of   further   promotion   to   the <\/p>\n
officers working on these posts.\n<\/p>\n
                                                                                  33<\/span><\/p>\n
31.     With these observations, the impugned judgment is <\/p>\n
affirmed and the appeal is accordingly dismissed with no <\/p>\n
order as to costs.\n<\/p>\n
                                       …………………………………….J.\n<\/p>\n
                                                         [B. Sudershan Reddy]<\/p>\n
                                      ……………………………………..J.\n<\/p>\n
                                                       [Surinder Singh Nijjar]<\/p>\n
New Delhi;\n<\/p>\n
March 31, 2011.\n<\/p>\n
                                                                                34<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Deepak Agrawal & Anr vs State Of U.P. & Ors on 31 March, 2011 Author: S S Nijjar Bench: B. Sudershan Reddy, Surinder Singh Nijjar REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6587 OF 2003 Deepak Agarwal & Anr. … Appellant (s) VERSUS State of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-62341","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDeepak Agrawal & Anr vs State Of U.P. & Ors on 31 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/deepak-agrawal-anr-vs-state-of-u-p-ors-on-31-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Deepak Agrawal & Anr vs State Of U.P. & Ors on 31 March, 2011 - 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