Deepak Agarwal &
Anr. Vs State of Uttar Pradesh & Ors.
J U D G M E N T
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 Commissioner, on the vacancies that arose before 17th May, 1999.
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 &
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 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.
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.
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).
of the representation made by the appellants, the 1983 Rules were amended on 17th
May, 1999. By the aforesaid amendment, the posts of 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.
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 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.
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
a. it abolishes Technical
Assistant Officers (TAO) and Statistical Officer (SO) as feeder streams to the
post of Deputy Excise Commissioner.
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
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.
SUBMISSIONS ON LAW -
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.
Parashotam Das Bansal in support of the submissions 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.
Learned counsel also
relied on the decisions of this Court in the cases of P. Ganeshwar Rao Vs. State
of Andhra Pradesh, N.T. Devin Katti & Ors. Vs. Karnataka Public Service Commission
& Ors.A.A. Catton Vs. Director of Education, State of Rajasthan Vs. R.
Dayal and B.L. Gupta Vs. M.C.D.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.
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 in "The
Uttar Pradesh Servants Criterian for Recruitment by Promotion Rules,
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.
the other hand, Mr. P.S. Narasimha, learned senior counsel for the respondents
amendment in the rules is based on a conscious decision taken by the Government
upon consideration of the representations of both the sides.
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.
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. Rajasthan Public Service Commission Vs. Chanan Ram &
Anr. State of M.P. & Ors. Vs. Raghuveer Singh Yadav & Ors. H.S. Grewal
Vs. Union of India & Ors. and Dr. K. Ramulu & Anr. Vs. S. Suryaprakash
Rao & Ors. (supra).
Officers have only a right of consideration under the Rules in force.
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 of High
Court of Delhi & Anr. Vs. A.K. Mahajan & Ors.13, New India Sugar Works Vs.
State of U.P. and Dr. K. Ramulu (Supra).
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).
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.
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 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.
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. 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. 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 Deputy Excise Commissioner ............................................................................
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;
[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. 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.
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 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.
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 amended by the date of their substantive
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.
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 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.
unamended and the amended Rule 5(3) of the 1983 Rules are as under:COLUMN 1 COLUMN
2Existing sub-rule  Deputy Sub-rule as hereby Excise Commissioner - By substituted
 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, 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.
the right of the appellants, to be considered under the unamended 1983 Rules be
taken away? The 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).
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 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 submissions of Dr. Rajeev Dhawan that the vacancies,
which had arisen before 17th May, 1999 had to be filled under the unamended
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 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).
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 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
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
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 . Vijeesh that for reasons germane to the decision, the Government
is entitled to take a decision not to fill up the existing vacancies on the relevant
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 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.
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 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
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 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 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."
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.
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.
these observations, the impugned judgment is affirmed and the appeal is
accordingly dismissed with no order as to costs.
[B. Sudershan Reddy]
[Surinder Singh Nijjar]