Allahabad High Court
Ashok Kumar Srivastava & 4 Ors. vs State Of U.P. Through Prin. Secy. Deptt. ... on 10 February, 2015
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved AFR Case :- SERVICE SINGLE No. - 1120 of 2014 Petitioner :- Ashok Kumar Srivastava & 4 Ors. Respondent :- State of U.P. through Principal Secretary, Department of Finance Lko. & another Counsel for Petitioner :- Mukund Tewari Counsel for Respondent :- C.S.C. Hon'ble Manoj Kumar Gupta, J.
1. The petitioners 1 to 4 who are Senior Auditor Gr.I and petitioner no.5 Senior Auditor, Cooperative Societies and Panchayats have approached this Court, seeking writ of certiorari quashing the order dated 10.1.2014 passed by Special Secretary, Finance, Government of U.P., Lucknow and the order dated 16.1.2014 passed by Chief Audit Officer, Cooperative Societies and Panchayats, U. P., Lucknow and for issuing mandamus commanding the opposite parties to constitute a Departmental Promotion Committee for consideration of candidature of the petitioners for promotion on the post of District Audit Officer/ Audit Officer Gr.II, with all consequential benefits.
2. In nutshell, the case of the petitioners is that under the Uttar Pradesh Subordinate (Cooperative & Panchayat) Audit Service Rules, 1980, as amended from time to time (for short referred to as 'Service Rules'), the petitioners are entitled to be considered for promotion to 87 vacant posts of District Audit Officer/Audit Officer Gr.II. It is contended that under Rule 5 of the Service Rules, the post of Senior Audit Officer, re-designated as Assistant Audit Officer, vide Government Order dated 24.6.2004 constitutes the feeder cadre for promotion to the post of District Audit Officer/ Audit Officer Gr.II. It could be enlarged to include those working as Senior Auditors, if sufficient number of candidates are not available. The last Departmental Promotion Committee met on 8.6.2007 when 20 Assistant Audit Officers were promoted to the post of District Audit Officer/Audit Officer Gr.II. Since thereafter, no Departmental Promotion Committee has been convened, despite existences of 87 vacancies. The petitioners will retire shortly, and thus their right to be considered for promotion is being infringed. The petitioners made representation to the authorities to convene Departmental Promotion Committee and consider them for promotion, but to no avail, compelling them to approach this Court by way of writ petition (SS) No.7121 of 2013, which was disposed of vide order dated 29.11.2013 requiring opposite party no.2 to decide their representation by a reasoned and speaking order. In pursuance thereof, the petitioners made fresh representation before respondent no.2, which has been decided by respondent no. 1 by means of order dated 10.1.2014. Respondent no. 2 by impugned letter dated 16.1.2014 informed the petitioners that their representation has been decided by respondent no.1, being the competent authority. The respondents in their impugned order observed that the Government had undertaken exercise for restructuring of the cadres and consequential amendments are yet to be carried out in the Service Rules, for which steps are under-way. The petitioners shall be considered for promotion soon after the Service Rules are amended or new Service Rules are framed.
3. The respondents have filed counter affidavit and have reiterated the stand taken in the impugned order. It is stated that restructuring of the cadres has necessitated amendment in Service Rules. The Government has taken a conscious decision not to go ahead with the promotion on the post of District Audit Officer until new Service Rules are framed or existing Rules are amended. It is contended that as a result of such decision, no vested right of the petitioners has been taken away. It is urged that the stand of the Government, in this regard, is in consonance with the law enunciated by the Apex Court in the case of High Court of Delhi and another v. A. K. Mahajan (2009) 12 SCC 62, Marripati Nagaraja and other v. Government of Andhra Pradesh and others (2007) 11 SCC 522, Deepak Agarwal and another v. State of U.P. and others (2011) 6 SCC 725 and State of Punjab and others v. Arun Kumar Aggarwal (2007) 10 SCC 402.
4. I have heard learned counsel for the parties and with their consent, this writ petition is being disposed of finally, at the admission stage itself, as per Rules of the Court.
5. The anchor sheet of the argument of the petitioners is the judgement of the Apex Court in the case of Y.V. Rangaiah and others v. Sreenivasa Rao and others (1983) 3 SCC 284, wherein it is held that the post which fell vacant prior to the amendment of rules would be governed by the old rules and not the new rules. Reliance has also been placed on another judgement of the Supreme Court in case of Arjun Singh Rathore and others vs. B.N. Chaturvedi and others (2007) 11 SCC 605, wherein same principle of law is reiterated, relying on the judgement in the case of Y.V. Rangaiah (supra). In Y.V. Rangaiah, it was held as under :-
"4. In the light of the rules and instructions mentioned above, a list of approved candidates should have been prepared as on 1st September, 1976 for making appointments to the grade of Sub-Registrars Grade II by transfer. The grievance of the petitioners is that contrary to the rules and instructions a list of the approved candidates was not prepared as on 1st September, 1976; instead it was considerably delayed and drawn up only in the year 1977 when an amendment to the rules had been incorporated by G.O. Ms. No. 265 Revenue (UI) dated March 22, 1977 whereby the original rules, providing for consideration of Lower Division Clerks for appointment as Sub-Registrars Grade II were done away with and promotion or transfer to that category was to be made from amongst Upper Division Clerks employed in the Registration and Stamps Department. The complaint of the petitioners in the two representation petitions is that by delaying the preparation of list of approved candidates till after the rules were amended their chances for consideration for appointment to the higher post were adversely affected in as much as the petitioner in representation petition No. 302 of 1978 ranked as serial No. 2 in Zone IV and the two petitioners in representation petition No. 1036 of 1978 stood at serial Nos. 9 and 10 in the category of Lower Division Clerks, i.e., much higher to the respondents 3 to 15. Had a list been prepared as on September 1, 1976 in accordance with the prescribed rules and instructions the petitioners by virtue of their high seniority among the Lower Division Clerks stood a fair chance of being appointed to the higher grade. The inevitable result of the delay in the preparation of the list has been that respondents 3 to 15, who were juniors to the petitioners in the category of Lower Division Clerks, have been promoted as Sub-Registrars Grade II and the petitioners who were senior to those respondents have been denied their legitimate chance of promotion............"
"9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Register Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wise basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules".
6. Reliance has also been placed on paragraph nos. 35, 36, 37 and 38 of the judgement of the Apex Court in the case of Union of India and another vs. Hemraj Singh Chauhan and others (2010) 4 SCC 290, which are as under :-
"35. The Court must keep in mind the Constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a Welfare State.
36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.
37. In Government Branch Press v. D.B. Belliappa - a three judge Bench of this Court in relation to service dispute, may be in a different context, held that the essence of guarantee epitomized under Articles 14 and 16 is "fairness founded on reason".
38. It is, therefore, clear that legitimate expectations of the respondents of being considered for promotion have been defeated by the acts of the Government and if not of the Central Government, certainly the unreasonable in-action on the part of the Government of State of U.P. stood in the way of the respondents' chances of promotion from being fairly considered when it is due for such consideration and delay has made them ineligible for such consideration. Now the question which is weighing on the conscience of this Court is how to fairly resolve this controversy."
7. The facts of the case in Hemraj Singh Chauhan (supra) were just the reverse. The respondents desired certain benefits under the cadre review notification which became effective from 25.8.2005. Their case was that under the Service Rules, cadre review was to be made every five years and had it been made in the year 2003, there would have been increase in vacancies as a result thereof and they stood a fair chance of being promoted to I.A.S. cadre. The High Court found delay on part of the Government in carrying out cadre review exercise inexplicable and directed that promotion shall be made by treating the cadre review notification to have come into force on 30.4.2003 with reference to vacancy position as on 1.1.2004. Though it was held that the cadre review notification can only be given effect to prospectively, but in the facts and circumstances of that case, the directions issued by the High Court were upheld in exercise of power under Article 142 of the Constitution. This is evident from the concluding paragraph of the judgment, which are as under :-
"47. Therefore, this Court accepts the arguments of the learned counsel for the appellants that Rule 4(2) cannot be construed to have any retrospective operation and it will operate prospectively. But in the facts and circumstances of the case, the Court can, especially having regard to its power under Article 142 of the Constitution, give suitable directions in order to mitigate the hardship and denial of legitimate rights of the employees.
48. The Court is satisfied that in this case for the delayed exercise of statutory function the Government has not offered any plausible explanation. The respondents cannot be made in any way responsible for the delay. In such a situation, as in the instant case, the directions given by the High Court cannot be said to be unreasonable. In any event this Court reiterates those very directions in exercise of its power under Article 142 of the Constitution of India subject to the only rider that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively."
8. Thus, the observations made by the Apex Court in the said judgment, are to be understood in the context, in which they were made.
9. On the other hand, learned Standing Counsel contended that there is no inviolable rule that vacancy in existence are to be filled up under the existing law, especially, when there has been a restructuring of the cadre and the rules are to be amended to give effect to the same. He further contended that the State Government has taken a conscious decision to fill up the vacancies after new rules are framed or existing rules are amended. Thus, the judgement in the case of Y.V. Rangaiah (supra) and other judgement following the same, cannot be of any help to the petitioners. In support of his contentions, he placed reliance on the judgement of the Apex Court in the case of Dr. K. Ramulu and another vs. Dr. S. Suryaprakash Rao and others (1997)3 SCC 59, wherein a three Judge Bench of the Apex Court was considering the validity of the decision of the State Government not to prepare panel for promotion to the post of Assistant Director in the Animal Husbandry Department till the service rules are amended. Rule 4 of the relevant service rules under consideration envisaged preparation of a panel by 30th September of every year, to be operative till the end of December of the succeeding year or preparation of fresh panel, whichever is earlier. The respondents challenged inaction on part of the Government in not preparing the panel for the year 1995-96 for promotion to the post of Assistant Director. The Tribunal directed the Government to prepare panel for the year 1995-96 for promotion to the post of Assistant Director, based on old rules, being of the opinion that new Rules of 1996 enforced w.e.f. 12.6.1996 cannot take away the vested right of the incumbents under the old rules for being considered for promotion. Their Lordships of the Supreme Court after considering number of earlier decisions of the Court, upheld the stand of the Government not to prepare and operate the panel for promotion till the Rules are amended. The contention of the respondents that they have acquired right to be considered under the old Rules, was repelled by holding as under :-
"13. It is seen that since the Government have taken a conscious decision not to make any appointment till the amendment of the Rules, Rule 3 of the General Rules is not of any help to the respondent. The ratio in the case of Ramesh Kumar Choudha v. State of M.P. is also not of any help to the respondent. Therein, this Court had pointed out that the panel requires to be made in accordance with the existing Rules and operated upon. There cannot be any dispute on that proposition or direction issued by this Court. As stated earlier, the Government was right in taking a decision not to operate Rule 4 of the General Rules due to their policy decision to amend the Rules.............."
"15. Thus, we hold that the first respondent has not acquired any vested right for being considered for promotion in accordance with the repealed Rules in view of the policy decision taken by the Government which we find is justifiable on the material available from the record placed before us. We hold that the Tribunal was not right and correct in directing the Government to prepare and operate the panel for promotion to the post of Assistant Directors of Animal Husbandry Department in accordance with the repealed Rules and to operate the same. "
(emphasis supplied)
10. For arriving on such conclusion, the Apex Court placed reliance on the constitutional bench judgement in Shankarsan Dash vs. Union of India, (1991) 3 SCC 47, wherein it is held as under :-
"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatinder Kumar v. State of Punjab".
11. The Apex Court considered the judgement in the case of Y.V. Rangaiah (supra) on which reliance has been placed by counsel for the petitioners and distinguished the same by holding as under :-
"12. The same ratio was reiterated in Union of India v. K.V. Vijeesh (SCC 139, paras 5 and 7). Thus, it could be seen 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. Shri H. S. Guraraja Rao, contends that this Court in Y.V. Rangaiah v. J. Sreenivasa Rao had held that the existing vacancies were required to be filled up as per the law prior to the date of the amended Rules. The mere fact that Rules came to be amended subsequently does not empower the Government not to consider the persons who are eligible prior to the date of amendment. It is seen that the case related to the amendment of the Rules, prior to the amendment of the Rules, two sources were available for appointment as Sub-Registrar, namely, UDCs and LDCs. Subsequently, Rules came to be amended taking away the right of the LDCs for appointment as sub-Registrar. When the vacancies were not being filled up in accordance with the existing Rules, this court had pointed out that prior to the amendment of the Rules, the vacancies were existing and that the eligible candidates were required to be considered in accordance with the prevailing Rules. Therefore, the mere fact of subsequent amendment does not take away the right to be considered in accordance with the existing Rules. As a proposition of law, there is no dispute and cannot be disputed. But the question is whether the ratio in Rangaiah's case would apply to the facts of this case. The Government therein merely amended the Rules, applied amended Rules without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date the new Rules came into force. It is true, as contended by Mr. H.S. Gururaja Rao, that this Court has followed the ratio therein in many a decision and those cited by him are P. Ganeshwar Rao v. State of A.P., P. Mahendran v. State of Karnataka, A. A. Calton v. Director of Education, N.T. Devin Katti v. Karnataka Public Service Commission, Ramesh Kumar Choudha v. State of M.P. In none of these decisions, a situation which has arisen in the present case had come up for consideration. Even Rule 3 of the General Rules is not of any help to the respondent for the reason that Rule 3 contemplates making of an appointment in accordance with the existing Rules."
12. The Apex court in a more recent judgement in the case of Deepak Agarwal (supra) again had the occasion to consider the law laid down in the case of Y.V. Rangaiah (supra). The appellants in the case before the Apex Court were holding the post of Technical Officer and Statistical Officer. Their case was that they were entitled to be considered for promotion to the post of Dy. Excise Commissioner as per 1983 Rules as it existed prior to the amendment dated 17.5.1999, as the vacancies arose prior to the said date. Under the old Rules, the post of Technical Officer / Statistical Officer constituted the feeder cadre for promotion to the post of Dy. Excise Commissioner. However, the amendments made on 17.5.1999 excluded these posts from the feeder cadre. The justification given by the State Government for excluding the posts of Technical Officer and Statistical Cadre from the feeder cadre was that they were not found fit for promotional post of Dy. Excise Commissioner because of their peculiar qualification, duties, responsibilities and work experience. It was further contended that the State Government had taken a conscious decision not to undertake promotion on existing vacancies till new rules are enforced. The Apex Court explained and distinguished the judgement in the case of Y.V. Rangaiah (supra) and by placing reliance on the judgement in the case of Dr. K. Ramulu (supra), the decision of the State Government to fill up the vacancies coming into existence prior to the amendment by applying the new rules was upheld. It was held as under :-
"24. We are of the considered opinion that the judgment in Y.V. Rangaiah's case 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 circumstance, 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.
25. 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 of 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 as to how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to the 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 17-5-1999 had to be filled under the unamended rules.
26. 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 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 has been taken away by the amendment.
28. In our opinion, the matter is squarely covered by the ratio of the judgment of this Court in the case of Dr. K. Ramulu. 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 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.
29. The High Court has noticed that the posts 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 wherein this Court reiterated the ratio in Union of India v. 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 date. "
(emphasis supplied)
13. Similar view was taken by their Lordships of the Supreme Court in the case of Arun Kumar Aggarwal (supra). In that case, vacancy on the post of S.D.O. came into existence while 1941 Rules were applicable, whereunder, by applying relaxation clause, diploma-holder Junior Engineers (outstanding category) holding the current duty charge for the post of S.D.O. were entitled for regularisation. However, the Government took conscious decision not to fill up existing vacancies till the Rules are amended. The Apex Court framed specific question as to whether old Rules of 1941 or new Rules of 2004, which became effective from 9.7.2004 will be applied for filling up the vacancies, which arose during the year 2000-2001. The Apex Court relying on the judgement in the case of Dr. K. Ramulu (supra) upheld the decision of the State Government to make promotion under the new Rules even on the vacancies which came into existence under the old regime i.e., when old Rules, 1941, were applicable. Relevant portion of the said judgement is reproduced below :-
"24. Mr. Rao, therefore, contended that the conscious decision was taken by the Government not to fill up the posts under the 1941 Rules. In view of the conscious decision taken by the Government, the Government, therefore, did not conduct any DPC for promotion to the post of SDO. To substantiate his contention he has invited our attention to the decision of this Court in Dr. K. Ramulu vs. Dr. S. Suryaprakash Rao. The three Judge Bench of this Court after referring to various decisions of this Court upheld the conscious decision of the Government not to fill up the post in view of the impending new rules. This Court finally held in paragraph 15 at SCC p. 67 as under:-
"15. Thus, we hold that the first respondent has not acquired any vested right for being considered for promotion in accordance with the repealed Rules in view of the policy decision taken by the Government which we find is justifiable on the material available from the record placed before us. We hold that the Tribunal was not right and correct in directing the Government to prepare and operate the panel for promotion to the post of Assistant Directors of Animal Husbandry Department in accordance with the repealed Rules and to operate the same."
29. Dr. Dhawan also contended that the vacancies are to be filled up in accordance with the contemporary Rules. In this connection he has referred to Y.V. Rangaiah v. J. Sreenivasa Rao, SCC at p 289, para 9:
"9...........Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than Respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub- Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wise basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
30. There is no quarrel over the proposition of law that normal Rule is that the vacancy prior to the new Rules would be governed by the old Rules and not by the new Rules. However, in the present case, we have already held that the Government has taken conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the case.
38. We hold that the Government has taken a conscious decision not to fill up the posts under the old 1941 Rules. The impugned order of the High Court is set aside. We may at this stage point out that the problem seems to have been compounded by the inaction/casual approach of the Government detrimental to public interest. The State Government shall now fill up the vacant posts in accordance with the 2004 Rules within a period of three months from today. All the eligible candidates who satisfy the criteria laid down under the 2004 Rules shall be considered. The entire process of recommendation and appointment shall be completed within three months from today."
14. The law thus, enunciated by the Apex Court is that there is no rule of universal or absolute application for vacancy to be filled invariably by law existing on the date when the vacancy arose. It depends on the nature of rights flowing out from the statutory provisions applicable in a particular case. It has been further held that in case no vested right is being taken away, the Government is empowered to take a conscious decision not to apply existing Rules for making promotion till the new Rules are enforced or existing Rules are amended. However, such decision of the Government has to be based on the objective consideration and is justiciable before the court of law. The necessary corollary of such power is that the State Government is empowered to fill vacancies coming into existence prior to enforcement of new Rules/ amended rules by applying the new rules /amended rules. The rights of the petitioners are thus, to be determined by applying the aforesaid principles of law.
15. However, before proceeding to examine the facts and circumstances of the case and the relevant provisions of the Service Rules under which the petitioner are claiming right to be promoted, it would be of great help to refer to the judgement of the Apex Court in the case of High Court of Delhi (supra), where the Apex Court had the occasion to lay down the nature of rights of an incumbent to be considered for promotion and whether retrospective amendment to the Rules taking away any such right, amounts to depriving the incumbent of his vested rights. The Apex Court explained the judgement in the case of Railway Board vs. C.R. Rangadhamaiah case 1997 (6) SCC 623 on which reliance was placed by the High Court in deciding the issue in favour of the respondents of that case, by holding as under :-
"19. The High Court has mainly relied on Railway Board v.. C.R. Rangadhamaiah and more particularly, para 24 thereof. Shri Misra, learned counsel for the respondents also very heavily relied on Rangadhamaiah case. The said para 24 is as follows (Rangadhamaiah case, SCC p. 638):-
"24. In many of these decision the expressions 'vested rights' or 'accrued rights' have been used while striking down the impugned provisions, which had been given retrospective operation, so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule, which was sought to be altered with effect from an anterior date and thereby, taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshal Lal Tandon, B.S. Vadera and Raman Lal Keshav Lal Soni ."
The Learned Counsel pointed out as held by the High Court that any provision with retrospective operation, having an adverse effect in the matter of promotion, seniority, substantive appointment etc. of the employees would be bad in law and would be in breach of Article 14 and 16 of the Constitution of India. The High Court also proceeded to hold that since one of the writ petitioners, who were invited for interview in the year 1994 was not invited in the year 1995, the vested right of the writ petitioner had been adversely affected by the retrospective operation of the Rules.
20. We must observe that the said para of Rangadhamaiah case is being interpreted in an erroneous way. Its clear language suggests that where the amendment, having retrospective operation, which has the effect of taking away a benefit already available to the employee, then such a provision is arbitrary, discriminatory and violative of the rights guaranteed under Article 14 and 16 of the Constitution of India.
21. Now, we find no discussion in the whole judgment of the High Court as to what was the benefit which was available to the said employee. The High Court has observed that the benefit of consideration, which was available to the Writ Petitioner No. 8 prior to the retrospective amendment of the Rules, was not available to him after the amendment of the Rules. In our opinion, this is an incorrect notion. There can be no benefit of consideration. To be considered is a right of employee but merely being considered, in itself, is not a benefit as it may or may not result in the selection or promotion of an employee and hence it is in the nature of a chance. A mere chance of promotion being affected by amendment is in our opinion inconsequential.
22. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of employer. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee."
(emphasis supplied)
16. It is thus, firmly grounded in law that to be considered for promotion is a right of an employee but merely being considered in itself is not a benefit or a vested right, as it may or may not result in the selection or promotion of an employee. It is only in the nature of a chance and a mere chance of promotion even if affected by amendment does not invalidate such amendment. However, if the amendment has the effect of denying the cristalised promotion or seniority, then certainly the amendment could be held as arbitrary. However, where no promotion was already granted or seniority already fixed, no vested right or benefit is being taken or withdrawn and retrospective amendment was upheld.
17. I now proceed to examine the controversy in the light of the law enunciated above. The State Government had carried out restructuring of the cadre by issuing Government Order dated 16.11.2012. Indisputably, such exercise lies in the exclusive domain of the Government. The Government Order dated 16.11.2012 is not under challenge. Pursuant to the directions of this Court in writ petition(SS) no. 7121of 2013 Y.S. Pandey and others vs. State of U.P. and another, the Special Secretary, U.P. Government by impugned letter dated 10.1.2014 issued various directions to the Chief Audit Officer, Lucknow in relation to the manner in which further action on the representation of the petitioner for promotion is to be undertaken. It has been noted therein that as a result of restructuring of the cadre, the following consequences ensued :-
(a) Departmental order for change in the feeding cadre and pay scale of District Audit Officer has already been issued and the exercise for amending Service Rules including the new feeding cadre is being carried out separately.
(b) As a result of restructuring, the post of Senior Auditor Gr.I which is the feeder cadre of District Audit Officer, is no more in existence.
(c) Apart from this, the post of District Audit Officer is now within the purview of Public Service Commission. Therefore, before making any promotion, the opinion of the Public Service Commission is also necessary. Any proposal for promotion without obtaining the consent of the Public Service Commission would also not be appropriate.
(d) There is no provision under the existing Service Rules which compels the Government to forthwith make promotion on the post of District Audit Officer.
(e) As a result of restructuring, the post of District Audit officer / Audit Officer Gr.II, which was carrying grade pay of Rs.4800 has been granted grade pay of Rs.5400, which is admissible to next promotional post namely, Regional Audit Officer.
(f) 50% of the post of District Audit Officer have to be filled by way of direct recruitment through Public Service Commission, while 50% have to be filled through promotion from amongst Assistant Audit Officer. Accordingly, orders have been issued for making amendment in the grade pay, source of recruitment and feeding cadre for the post of District Audit Officer and thus, it would not be possible to undertake exercise for promotion till the Rules are amended or the new rules are framed.
18. In pursuance of the aforesaid guidelines issued by the competent authority, the Chief Audit Officer vide impugned order dated 16.1.2014 informed the petitioners that he being not competent to take decision relating to promotion, forwarded their representation to the State Government, which decided the same vide its letter dated 10.1.2014, copy whereof was forwarded to the petitioners alongwith letter dated 16.1.2014. It is evident on the face of record that the Government took a conscious decision not to undertake exercise for promotion to the post of District Audit Officer until new Rules are framed or existing rules are amended. As per law laid down by the Apex Court in the case of Dr. K. Ramulu (supra) followed by the judgement in the case of Arun Kumar Aggarwal (supra) and Deepak Agarwal (supra), such decision was within its power. There are cogent reasons as disclosed in the impugned order for not proceeding to make promotion by applying the existing Rules.
19. It is to be noted here that under the existing Service Rules, Rule 5 prescribes that the post of District Audit Officer/ Audit Officer Gr.II shall be filled by promotion from amongst substantively appointed senior auditors Gr.I and in case such candidates are not available, the zone of consideration shall be enlarged so as to include the senior auditors also. Rule 18 prescribes that the criteria for promotion shall be seniority subject to rejection of the unfit through the selection committee to be constituted in accordance with the provisions of the Uttar Pradesh Constitution of Departmental Promotion Committee (for posts outside the purview of the Service Commission) Rules, 1992. The appointing officer is to prepare the eligibility list of candidates and place the same before the Selection Committee alongwith their character rolls and records. However, there is no provision for preparation of any panel within a fixed time frame or grant of time bound promotion. On the contrary, Rule 4 specifically empowers the Governor to keep in abeyance or the appointing authority to leave unfilled any post in the service, without thereby entitling any person to compensation.
20. In view of the above provisions under the Service Rules, I am of the firm opinion that the law laid down in the case of Y.V. Rangaiah (supra) would not be applicable and the case in hand will be governed by the law of the Apex Court laid down in the case of Dr. K. Ramulu (supra). The State Government, having taken conscious decision not to undertake promotion for the post of District Audit Officer under the existing Rules till new Rules are framed or amendments are made, cannot be compelled to make promotion under the existing Rules.
21. However, learned counsel for the petitioners pointed out that the action of the Government is hit by Article 14 of the Constitution as recently it had made promotion of Auditors to the post of Senior Auditors Gr.II applying the existing Rules. It is noticeable that restructuring contemplated by Government Order dated 16.11.2012 provided for bifurcation of post of Auditors and Senior Auditors in the ratio of 1:3. The Government Order itself states that as a result thereof, there will be 1307 posts of Senior Auditor and 436 posts of Auditors. The post of Senior Auditor is to be filled from the Auditor with three years experience. Even under the existing Service Rules, these posts are to be filled by promotion of Auditors, though there was no condition regarding three years experience. It is not the case of the petitioners that the persons promoted do not have three years experience. Thus, it seems that the respondents having found no legal hurdle in such promotion, issued orders in this regard. However, in case of the petitioners, under the existing Service Rules, the post of Assistant Audit Officer / Audit Officer Gr.II is to be filled from amongst substantively appointed Senior Auditor Gr.I and in case such candidates are not available, zone of consideration can be enlarged to include Senior Auditors also. As a result of restructuring, the post of District Audit Officer/ Audit Officer Gr. II have been granted enhanced pay scale of Rs.8000-13500, instead of existing pay scale of Rs.7500-1200. Further vide para 5 of the Government Order, these 87 posts in the higher pay scale alongwith 32 posts of Regional Audit Officer / Audit Officer Gr.I were merged to form a single cadre in the name of District Audit Officer, thus increasing the cadre strength to 119 posts. The exercise for identifying the places where such incumbents are to be posted, is to be held. Further vide para 6, 50% of such posts are to be filled by direct recruitment through Public Service Commission and the remaining 50% by promotion from amongst Assistant Audit Officers. Para 1(iv) contemplated that Senior Auditor Gr.I in the pay scale 6500-10,500 shall stand assimilated with the post of Assistant Audit Officer.
22. The State Government vide impugned order dated 10.1.2014 held that as a result of the aforesaid restructuring, the post of Senior Audit Officer Gr.I is no more in existence. In fact, it was re-designated as Assistant Audit Officer, vide Government Order dated 24.6.2004. However, there has been enlargement of feeding cadre for promotion to the post of District Audit Officer. Further, only 50% of such posts are to be filled by direct recruitment through Public Service Commission, for which opinion of the Public Service Commission would be required. All this is possible only after Rules are amended. It is further to be noted that the post of District Audit Officer / Audit Officer Gr.I, which was carrying grade pay of Rs.4800 has already been granted grade pay of Rs.5400, admissible to be next promotional post. These facts have not been disputed by the petitioners nor any of the findings recorded in this regard in the impugned order. Thus, I find justifiable ground on part of the State Government for not proceeding with the promotion on the post of District Audit Officer, till the Rules are amended or new Rules are framed. Action of the State Government cannot be held to be arbitrary or discriminatory.
23. In the end, learned counsel for the petitioners tried to distinguish the judgement in the case of Dr. K. Ramulu (supra) and Deepak Agarwal (supra) by contending that in these cases, Rules were already amended but since in the instant case, amendment is yet to be made, so these judgements cannot be applied to the facts of the instant case. The argument is specious in nature. True it is that the rules have not been amended/ replaced by new rules, but based of exposition of law as laid by the Apex Court in various judgements referred to above, as well as taking into consideration the provisions of existing Service Rules, it can safely be held that the petitioners, under the existing Service Rules, have mere right to be considered for promotion. It may be noted here that under the existing Service Rules, there is no right of time bound promotion or for preparation of any panel on yearly basis as in the case of Y.V. Rangaiah (supra).
24. On the contrary, rule 4(2) specifically invests power in the Government and the appointing authority to keep the post vacant without entitling any person to compensation. The Apex Court in the case of Dr. K. Ramulu (supra) and Deepak Agarwal (supra) has held that State has power to keep in abeyance the promotion, pending amendment of the Rules. If the State possess such power, then it is not material that new Rules have yet not been framed/ amended. Merely because the petitioners herein have approached this Court prior to enforcement of new Rules / amendment in the Rule, will not alter the legal position. Thus, I do not find any substance in the submission made by learned counsel for the petitioners for not applying the dictum laid down in Dr. K. Ramulu (supra) and Deepak Agarwal (supra) to the facts of the present case.
25. In view of the foregoing discussion, it is held that the State Government is justified in awaiting framing of new Rules/ amendment in the Rules before proceeding to make promotion on the post of District Audit Officer and no right of petitioners herein has been infringed as a result thereof. However, it does not mean that the State can be permitted to delay the process of amending the Rules for indefinite period. The petitioners have legitimate expectation of their case being considered for promotion without inordinate delay.
26. This Court vide order dated 25.11.2014 required the Principal Secretary (Finance), Government of U.P. to file personal affidavit disclosing the time frame within which the Rules will be amended. In compliance of the said directions, Sri Rahul Bhatnagar, Principal Secretary (Finance), Government of U.P. has filed his personal affidavit enclosing therewith details of the proceedings which have been undertaken till date for carrying out amendments in the Rules and has further stated that three months' time would be required for notifying amendment in the Rules.
27. A perusal of the proceedings held up to the stage of filing of said affidavit indicates that the proposed Rules were approved by the Chief Minister on 9.9.2014. Thereafter, certain correspondence ensued with the Chief Audit Officer and Karmik Anubhag-1 on 1.12.2014. The file has now been sent to the Pay Commission (Vetan Ayog) for its opinion and after receipt of opinion from the Pay Commission, the same shall be forwarded to the Public Service Commission for its approval and further action will be taken after obtaining approval from the Cabinet, in which approximately three months' time will be consumed.
28. Since after filing of the said affidavit, considerable time has already passed and therefore, in the totality of the facts and circumstances of the case, this Court considers that interest of justice would be served in directing the State Government to conclude exercise for amending Rules or framing new Rules, as far as possible, within a period of two months from today and thereafter consider the petitioners for promotion to the post of District Audit Officer with due expedition, preferably within a period of next three months. It is ordered accordingly.
29. Subject to the aforesaid observations/directions, the writ petition stands disposed of.
(Manoj Kumar Gupta, J.) Date : 2015 skv
The judgement prepared by the Hon'ble Judge who heard the matter and is not available today at Lucknow is being pronounced by me in accordance with Rule 1(3) of Chapter VII of the Rules of the Court, 1952 on being so assigned by the Hon'ble Senior Judge.
Sd/-
(Pankaj Mithal, J.) 10th Feb. 2015