Allahabad High Court
Manoj Kumar Rai vs State Of U.P. And 5 Othrs. on 18 February, 2020
Bench: Govind Mathur, Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court Case :- SPECIAL APPEAL No. - 124 of 2018 Appellant :- Manoj Kumar Rai Respondent :- State Of U.P. And 5 Othrs. Counsel for Appellant :- Man Mohan Singh Counsel for Respondent :- C.S.C. Hon'ble Govind Mathur,Chief Justice Hon'ble Samit Gopal, J.
Being appointed as Excise Constable, the appellant entered in service of State of Uttar Pradesh in the year 1989. On 9th September, 2004 a promotion was accorded to him on the post of "Tari Supervisor". As per the U.P. Sub-Ordinate Excise Service Rules, 1992, a Tari Supervisor had an avenue for promotion to the post of Sub-Excise Inspector in proportion as prescribed sub-Rule (2) of Rule 5 of the Rules of 1992 that reads as follows:-
"5(2). Sub-Excise Inspector.
(i) Seventy sever per cent by direct recruitment;
(ii) ten percent by promotion from amongst substantively appointed Tari Supervisors who have passed High School Examination and have completed ten years service as such on the first day of the year of recruitment; and
(iii) thirteen percent by promotion from amongst High School passed substantively appointed Excise Head Constables and Excise Constables who have completed ten years service including service on the post of Excise constable, on the first day of the year of recruitment.
Provided that if suitable eligible persons are not available for promotion, the posts may be filled by direct recruitment."
By a notification dated 6th August, 2015 certain amendments were introduced in the Rules of 1992 and as per that an avenue for promotion was also accorded to the Head Constables along with Tari Supervisors to the post of Sub-Excise Inspector. The amended Rule 5(2) reads as under:-
"5(2). Sub-Excise Inspector -
By promotion through the Selection Committee from amongst substantively appointed Excise Head Constables and Tari Supervisors who have passed the High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognized by the Government or equivalent thereto and have completed 10 years service as such on the first day of the year of recruitment."
On completion of 10 years as Tari Supervisor, the appellant-petitioner became eligible to be considered for promotion as Sub-Excise Inspector on 9th September, 2014. As such his claim for promotion became ripe for the recruitment year 2015-16. The respondents did not considered claim of the appellant-petitioner favourably as he was not at appropriate seniority in composite eligibility list of the Tari Supervisors and the Head Constables. Being aggrieved by the same he preferred a petition for writ that came to be dismissed under the impugned judgment.
Learned single Bench while negativing the claim of the appellant-petitioner for consideration on basis of pre amended criteria under Rule 5(2) of the Rules of 1992 held as under:-
"9. Supreme Court in Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, held that it is by now a settled proposition of law that a candidate has the right to be considered for promotion 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 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 cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment. In State of Tripura v. Nikhil Ranjan Chakraborty, (2017) 3 SCC 646, held that the law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, "rules in force on the date" the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24.11.2011."
Aggrieved by the conclusion arrived by the learned single Bench, instant appeal is before us.
Precisely the issue deserves to be crystalized by us is that whether the appellant-petitioner had any right to be considered for promotion as against vacancies of the year 2015-16 as per pre amended sub-Rule (2) of Rule 5 of the Rules of 1992.
The Rules of 1992 were enacted by the Governor exercising powers conferred by proviso to Article 309 of the Constitution of India to regulate recruitment and other service conditions of the persons appointed to the U.P. Sub-Ordinate Excise Service Rules, 1992. The service aforesaid is having a cadre of different category of posts. Strength of each category is required to be determined by the Governor from time to time. As per sub-Rule (2) of Rule 4 "the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation.
As already stated, recruitment to the post of Sub-Excise Inspector is required to be made as per sub-Rule (2) of Rule 5 and under the provisions aforesaid, 23% vacancies are required to be filled in by way of promotion and out of that 10% by promotion from amongst the Tari Supervisors (pre amendment).
The eligibility for the purpose of consideration for appointment is required to be examined on first day of the year of recruitment. The term year of recruitment as defined under Rule 2(l) means a period of 12 months commencing from first day of July of a calendar year.
Rule 14 of the Rules (pre amendment) pertains to that "the appointing authority shall determine the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6".
Under Rule 16 procedure for recruitment by promotion through Selection Committee as prescribed and prior to amendment in the year 2015 "the appointing authority was required to prepare eligibility list in accordance with the Uttar Pradesh Promotion by Selection (on post outside the purview of the Public Service Commission) Eligibility List Rules, 1986.
After amendment, the criteria for promotion is required to be adopted in accordance with the U.P. Government Servants Criterion For Recruitment by Promotion Rules, 1994.
The provisions aforesaid reflects that 10% of the vacancies prior to amendment in the Rules were required to be filled in only from among the Tari Supervisors and their eligibility was required to be determined on first day of the recruitment year. The appellant-petitioner completed 10 years of service in the month of September, 2014. Therefore, on 1st July, 2015 he was eligible to be considered for promotion against the vacancies relating to the year 2015-16.
Amendment in the Rules of 1992 was made by a notification dated 6th August, 2015. The right to be considered as per pre amendment mode was available to the appellant-petitioner only from 1st July to 6th August, 2015. As a consequence to the amendment, a composite list was required to be prepared consisting the names of Head Constables as well as Tari Supervisors.
The respondents prepared such a composite list and appellant-petitioner being not falling in the seniority was not accorded promotion. His claim is against the vacancy that was existing prior to 6th August, 2015.
Hon'ble Supreme Court in the case of Deepak Agarwal Vs. State of U.P. reported in 2011 (6) SCC 725 examining a similar provision held that there being no statutory duty caste upon the respondent to either prepare year wise panel of eligible candidates or of selected candidates for promotion, there was no requirement to consider candidature of the persons who were not possessing the eligibility under the Rules on the date of consideration or entire consideration was required to be made by applying the Rules existing on the date of consideration. The Court arrived at the conclusion that the date of occurrence of the vacancy in such circumstance was absolutely irrelevant. While arriving at such conclusion the Court also noticed the power available to the appointing authority for not filling up the vacancy and also the power of the Governor to keep the vacancies in abeyance.
Primary, it appears that the issue involved in this appeal stands covered by the law laid down in the case of Deepak Agarwal (supra) which was further reiterated in State of Tripura Vs. Nikhil Ranjan Chakraborty reported in 2017 (3) SCC 646 too, but on minute examination we find the instant matter little different on facts to the case of Deepak Agarwal (supra).
In the case aforesaid, the Court noticed that the vacancies of the year concerned were not filled in as per the power available to the appointing authority or the Governor, as the case may be, as per sub-Rule (2) of Rule 4 of the Rules applicable therein but in the instant matter it is not the case of the respondents that any decision was taken for keeping the posts vacant. As a matter of fact, the respondents have filled in all the vacancies of the relevant year including the vacancies existing on 1st July, 2015 and upto midnight of the intervening night of 4th & 5th August, 2015. For such vacancies, the Head Constables were not at all eligible to be considered for appointment, whereas the appellant-petitioner being a Tari Supervisor had a right to be considered for promotion exclusively by having an eligibility list of Tari Supervisors.
Learned single Bench in our considered opinion has not examined this aspect of the matter and as such erred while dismissing the petition for writ.
Accordingly, the appeal is allowed. The judgment dated 12th October, 2017 passed by learned single Bench is set aside. The writ petition preferred by the appellant-petitioner is accepted. The respondents are directed to consider candidature of the appellant-petitioner for the purpose of promotion to the post of Sub-Excise Inspector against the existing vacancies of Sub-Excise Inspector before 5th August, 2015 by preparing an eligibility list of Tari Supervisors only.
No order to costs.
Order Date :- 18.2.2020
Bhaskar
(Samit Gopal, J.) (Govind Mathur, C.J.)