REPORTABLE

 IN THE SUPREME COURT OF INDIA    CIVIL APPELLATE JURISDICTION

      CIVIL APPEAL NO. 6587 OF 2003

Deepak Agarwal & Anr.                         … Appellant (s)

VERSUS

State of Uttar Pradesh & Ors.             …Respondent (s)

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. This appeal is directed against the judgment of the  

High Court of Judicature at Allahabad dated 16th April,  

2002,  dismissing  the  writ  petition  challenging  the  

Notification dated 17th May, 1999, wherein the appellants  

had been rendered ineligible for promotion  to  the post of  

Deputy Excise Commissioner (DEC) and the Notification  

dated 26th May, 1999, promoting respondents No. 3 to 9  

as Deputy Excise Commissioner, and further to consider  

and  promote  the  appellants  as  Deputy  Excise  

1

Commissioner,  on  the  vacancies  that  arose  before  

17th May, 1999.  

2. Old vacancies have to be filled under the old rules is  

the mantra, sought to be invoked by the appellants in  

support of their claim that the vacancies arising prior to  

17th May, 1999, ought to be filled under the 1983 Rules  

as they existed prior to the amendment dated 17th May,  

1999. The claim is based on the principle enunciated by  

this Court in Y.V.Rangaiah & Ors. Vs. J.Sreenivasa Rao  

& Ors.  1  .

3. The  appellants  were  recruited  through  the  Uttar  

Pradesh Public Service Commission on Class II posts in  

the Excise Department under the Excise Commissioner,  

Uttar Pradesh. Deepak Agarwal (hereinafter referred to as  

‘appellant No.1’) was appointed on the post of Technical  

Officer  in  the  pay  scale  of  Rs.2200–4000  by  an  order  

dated  13th August,  1991.  Similarly,  Jogendra  Singh  

(hereinafter referred to as ‘appellant No. 2’) was directly  

1 (1983) 3 SCC 284 2

recruited  through  the  Uttar  Pradesh  Public  Service  

Commission  and  appointed  on  the  post  of  Statistical  

Officer by Notification dated 8th January, 1992 in the pay  

scale of Rs.2200–4000. It is not disputed that both the  

appellants are confirmed in service. There is no adverse  

entry in their service record. The appellants are the only  

two officers recruited directly to Class II Excise Service.  

Otherwise, majority of the officers have entered service as  

Inspectors  in the Excise Department and subsequently  

promoted to higher posts.   

4. The  U.P.  Excise  Group  ‘A’  Service  Rules,  1983  

govern  the  procedure  for  recruitment  and  conditions  

service of officers of Group ‘A’ of the Excise Department.  

Initially  under  Rule  5(2)  only  Assistant  Excise  

Commissioners  and Technical  Officers  were  eligible  for  

promotion.    Subsequently  by amendment of  the 1983  

Rules on 22nd June, 1998, Statistical Officers were also  

made eligible for promotion to the post of Deputy Excise  

Commissioner.  

3

5. It came to the knowledge of the appellants that U.P.  

Excise  Officers  Sangh,  Allahabad  had  filed  a  

representation before the State Government in the month  

of  September,  1998 protesting  against  the inclusion of  

the  Technical  Officers  and  Statistical  Officers  in  the  

feeder cadre for promotion to the post of Deputy Excise  

Commissioner.  The  appellants,  therefore,  also  made  

representations  before  the  Departmental  Promotion  

Committee  (DPC).  In  the  year,  1997-98  and  1998–99,  

12  vacancies  arose  for  the  post  of  Deputy  Excise  

Commissioner.  Out of these 12 vacancies, 10 vacancies  

had arisen prior to 17th May, 1999 and 2 vacancies had  

arisen  on  30th June,  1999  due  to  the  retirement  of  

Deputy / Joint Excise Commissioner. It is the case of the  

appellants that they were entitled to be considered for the  

aforesaid 10 vacancies under Rule 5(2).  

6. Inspite  of  the  representation  made  by  the  

appellants, the 1983 Rules were amended on 17th May,  

1999.  By  the  aforesaid  amendment,  the  posts  of  4

Technical  Officers  and  Statistical  Officers  have  been  

excluded from the feeder cadre for promotion to the post  

of Deputy Excise Commissioner. This amendment came  

just two days before the DPC was scheduled to meet on  

19th May, 1999. As a consequence of the amendment, the  

DPC did not consider the appellants for promotion.  The  

justification  given for  the  aforesaid amendment is  that  

the State Government had taken a “conscious decision”  

to exclude the Technical Officers and Statistical Officers  

as  they  were  not  fit  for  the  post  of  Deputy  Excise  

Commissioner  because  of  their  peculiar  qualifications,  

duties, responsibilities and work experience. However, to  

compensate for loss of promotion, the pay scale of these  

two  posts  has  been  upgraded  to  the  level  of  Deputy  

Excise Commissioner.  

7. Thereafter,  the  State  Government  issued  a  

Notification  dated  26th May,  1999  wherein  the  State  

Government  granted  promotion  to  the  10  persons  

(Respondent Nos. 3 to 9) to the posts of Deputy Excise  

Commissioner.  Aggrieved  by  the  same,  the  appellants  5

filed  a  writ  petition  before  the  Allahabad  High  Court  

challenging the Notification dated 26th May, 1999. It was  

also prayed that they should be considered for the posts  

of  Deputy  Excise  Commissioner  and Notification  dated  

17th May,  1999  be  quashed.  The  High  Court  vide  its  

judgment dated 16th April, 2002 dismissed the petition.  

Hence the present appeal.    

8. We have heard the exhaustive submissions made by  

the  learned  counsel  for  parties.  Dr.  Rajeev  Dhawan,  

learned  senior  counsel,  appearing  for  appellants,  has  

highlighted the primary issues involved herein, which are  

as follows:   

Whether the State of Uttar Pradesh amendment of  

17th May, 1999 in the Schedule is invalid because –

(a) it abolishes Technical Assistant Officers (TAO)  

and Statistical Officer (SO) as feeder streams  

to the post of Deputy Excise Commissioner.

6

(b) denies TAO and SO the right to be considered  

for promotion.

(c) stagnates  them  by  denying  any  promotional  

avenue  and  merely  gives  them  a  ‘sop’  of  

up-gradation with no avenue to promotion.

(d)   gives retroactive application to the amendment  

to  exclude  persons  covered  by  the  

pre-amended rules of 1983.  

SUBMISSIONS ON FACTS –

9. By the amendment, the avenue of promotion of the  

appellants has been totally blocked. The up-gradation of  

the pay scale is a mere sop. The decision to amend the  

rules on 19th May, 1999 came within one year of granting  

eligibility to the post of Statistical Officer on 22nd June,  

1998.  It  was  unreasonable  for  the  State  to  do  a  total  

volte-face.  Only  reason  for  such  a  volte-face  was  the  

pressure from the Excise Commissioner to be favoured.  

7

SUBMISSIONS ON LAW –

10. Right to be considered for promotion is a valuable  

right.  The  Government  is  required  to  make  

necessary  provision  in  the  rules  to  remove  

stagnation  on  a  particular  post  and  by  giving  

suitable  promotion  avenue  to  its  employees.  

Learned counsel relied on a decision of this Court in  

the  case  of  Food  Corporation  of  India Vs.  

Parashotam  Das  Bansal  2   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.  

2 (2008) 5 SCC 100 8

Learned counsel also relied on the decisions of this  

Court in the cases of P. Ganeshwar Rao Vs.  State  

of Andhra Pradesh  3  ,  N.T. Devin Katti & Ors. Vs.  

Karnataka  Public  Service  Commission  &  Ors.  4    

A.A. Catton Vs.  Director of Education  5  ,  State of  

Rajasthan  Vs. R.  Dayal  6    and  B.L.  Gupta Vs.  

M.C.D.  7   to emphasis that the rule of prospectivity  

application requiring the pre-amendment vacancies  

to  be  considered  under  the  unamended  rule  is  

firmly embedded in the law. He has, however, very  

fairly  stated  that  although  the  normal  rule  of  

prospectivity will apply, a subsidiary rule has come  

into  existence  since  1997 that  if  the  Government  

takes a conscious decision not to apply the rule to  

pre-amendment  vacancies  under  the  old  rules,  it  

has the power to do so.  

3 1988 (Supp) SCC 740 4 (1990) 3 SCC 157 5 (1983) 3 SCC 33 6 (1997) 10 SCC 419 7 (1998) 9 SCC 223

9

11. On  facts,  he  submits  that  there  was  no  legally  

binding conscious decision taken in this case. The  

criteria laid down in the case of  Dr. K. Ramulu &  

Anr. Vs. Dr. S. Suryaprakash Rao & Ors.8 has not  

been  satisfied.  He  submits  that  the  conscious  

decision  has  to  satisfy  the  test  of  reasonableness  

and relevancy of criteria. In the present case, there  

is no evidence of a conscious decision being taken.  

The plea was not even raised in the High Court. It is  

raised in this Court based on the observations made  

by the High Court. Such a conscious decision must  

be based on existing facts and cannot be conjured  

up in the affidavit  to oppose the writ  petition. He  

further  submits  that  under  Note  to  Rule  8  the  

respondents  are  required  to  prepare  combined  

eligibility list of the candidates in order of seniority  

determined  by  the  dates  of  their  substantive  

appointments. Furthermore, the promotions under  

Rule 5(2) are to be made on the basis of the criteria  

8 (1997) 3 SCC 59 10

in  “The  Uttar  Pradesh  Servants  Criterian  for  

Recruitment by Promotion Rules, 1994.”

12. Rule 4 of these Rules provides that the promotion  

shall  be  made on the  basis  of  seniority  subject  to  the  

rejection of the unfit.   Under these Rules, Dr. Dhawan  

has  submitted  that  the  appellants  were  bound  to  be  

promoted  being  senior  and  having  a  good  record  of  

service. The attempt by the State without amendment in  

this  rule  to  introduce  comparative  merit  on  irrelevant  

considerations to exclude the appellants from the feeder  

cadre was ex facie illegal and arbitrary.     

13. On  the  other  hand,  Mr.  P.S.  Narasimha,  learned  

senior counsel for the respondents submitted that:

(i)  The  amendment  in  the  rules  is  based  on  a  

conscious decision taken by the Government upon  

consideration  of  the  representations  of  both  the  

sides.   

11

(ii) The ratio in Rangaiah’s case (supra) will not be  

applicable  in  the  facts  of  this  case.  No  selection  

before the amendment had taken place in this case.  

(iii) The right of the candidate is to be considered  

under  the  Rules  in  force  on  the  date  the  

consideration  takes  place.  In  support  of  his  

submission, he relied on the decisions of this Court  

in the cases of Jai Singh Dalal & Ors. Vs. State of  

Haryana  &  Anr.  9  ,  Rajasthan  Public  Service  

Commission Vs.  Chanan Ram & Anr.  10  ,  State of  

M.P. & Ors. Vs. Raghuveer Singh Yadav & Ors.  11  ,  

H.S. Grewal Vs. Union of India & Ors.  12   and      Dr.  

K. Ramulu & Anr. Vs. S.Suryaprakash Rao & Ors.  

(supra).

(iv) The Officers have only a right of consideration  

under the Rules in force.

(v) In  this  case,  there  is  no  acquired  or  vested  

right of the appellants which has been taken away.  

He relied on the decisions of this Court in the cases  9 1993 (Supp) 2 SCC 600 10 (1998) 4 SCC 202 11 (1994) 6 SCC 151 12 (1997) 11 SCC 758

12

of High Court of Delhi & Anr. Vs. A.K. Mahajan &  

Ors.13,  New India Sugar Works Vs.  State of U.P.  14    

and Dr. K. Ramulu (Supra).  

(vi) The  issue  herein  is  squarely  covered  by  the  

judgment  in  Dr.  K.  Ramulu’s  case (supra).  The  

cases  relied  upon  by  the  appellants  have  been  

explained in the case of  Rajasthan Public Service  

Commission (Supra).

(vii) The State is conscious of the loss of promotion  

avenue  to  the  posts  of  Senior  Technical  Officer  

(STO) and Senior Statistical Officer (SSO). The Court  

can  issue  necessary  directions  to  the  State  to  

remove any stagnation on the aforesaid two posts.   

14. Mr. Dinesh Dwivedi, learned senior counsel for the  

State submits that the ratio in the case of Y.V. Rangaiah  

(supra) is not applicable in the facts of this case. There is  

no requirement under Rule 7 of the applicable rules in  

this  case  to  prepare  a  year  wise  panel  of  the  selected  

13 (2009) 12 SCC 62 14 (1981) 2 SCC 293

13

candidates. Therefore, no acquired or vested right of the  

appellants  has  been  taken  away.  Under  Rule  7,  the  

vacancies have only to be identified.  The right accrues  

only  at  the  time  of  consideration  for  promotions.  

Therefore,  the  amendment  has  not  been  given  a  

retroactive effect. The matter is covered by the judgment  

in  the  case  of  Dr.  K.  Ramulu (supra) as  a  conscious  

decision has been taken by the State to exclude the two  

parts  of  STO  and  SSO  from  the  feeder  cadre  for  

promotion as DEC.                      

15. We have considered the submissions made by the  

learned  counsel  for  parties.   Service  conditions  of  the  

appellants  and  the  respondents  are  governed  by  

U.P.  Excise  Group  ‘A’  Service  Rules,  1983,  framed  in  

exercise  of  the  powers  conferred  by  the  proviso  of  

Article  309  of  the  Constitution  of  India.  Therefore,  it  

would be appropriate to notice the relevant provisions of  

the Rules at this juncture.  

14

Rule 2:- Status of the Service – The Uttar Pradesh  

Excise  Group  ‘A’  Service  is  a  State  service  

comprising Group ‘A’ posts.  

Rule 3(g):- “Service” means the Uttar Pradesh Excise  

Group ‘A’ Service;

(h);  “Substantive  appointment”  means  an  

appointment, not being an adhoc appointment on a  

post  in  the  cadre  of  the  service  after  selection in  

accordance with the rules and, if there are no rules,  

in accordance, with the procedure prescribed for the  

time being by executive instructions issued by the  

Government;

(i)  “Year of  recruitment”  means a period of  twelve  

months commencing from the first day of July of a  

calendar year.

15

Rule 4: Cadre of Service - (1) the strength of the  

service shall be such as may be determined by the  

Government from time to time.

(2)  The  strength  of  the  service  shall,  until  orders  

varying the same are passed under sub-rule (1), be  

as follows:

………..…………………………………………………………

Name of the post Number of Posts

…………………………………………………………………..

 Permanent     Temporary

Joint Excise Commissioner   -      6

Deputy Excise Commissioner     11      6

…………………………………………………………..........

Provided that –

[i]  The  appointing  authority  may leave  unfilled  or  

the  Governor  may  hold  in  abeyance  any  vacant  

post,  without  thereby  entitling  any  person  to  

compensation;   

16

[ii]  The  Governor  may  create  such  additional  

permanent or temporary posts as he may consider  

proper.

Rule 5(2): Recruitment to the post of Deputy Excise  

Commissioner  shall  be  made  by  promotion  from  

amongst  substantively  appointed  Assistant  Excise  

Commissioners  and  Technical  Officers  who  have  

completed  two  years  service  as  such,  on  their  

respective  posts,  on  the  first  day  of  the  year  of  

recruitment.

Rule 7: Determination of vacancies – The Appointing  

Authority shall determine the number of vacancies  

to be filled during the course of the year as also the  

number  of  vacancies,  if  any,  to  be  reserved  for  

candidates  belonging  to  Scheduled  Castes,  

Scheduled  Tribes  and  other  categories  under  

Rule 6.

17

Rule  8(3):  The Appointing  Authority  shall  prepare  

eligibility list of the candidates in accordance with  

the Uttar Pradesh Promotion by Selection (on posts  

outside  the  purview  of  the  Public  Service  

Commission) Eligibility List Rules, 1986 and place it  

before  the  Selection  Committee  along  with  their  

character rolls and such other records pertaining to  

them as may be considered necessary.  

NOTE:-  For the purpose of promotion to the post of  

Deputy  Excise  Commissioner,  under  Rule  5(2),  a  

combined  eligibility  list  shall  be  prepared  by  

arranging  the  names  of  Assistant  Excise  

Commissioners  and  Technical  Officer  in  order  of  

seniority  as  determined  by  the  dates  of  their  

substantive appointment.

16. A perusal  of  the  aforesaid  rules  would  show that  

Rule  5,  recruitment  to  the  post  of  Joint  Excise  

Commissioner shall be made by promotion from amongst  

18

substantively  appointed  Deputy  Excise  Commissioner.  

Under Rule 5(2), recruitment to the post of Deputy Excise  

Commissioner shall be made by promotion from amongst  

substantively appointed Assistant Excise Commissioners  

and Technical Officers, who have completed two years of  

service on their respective posts on the first day of the  

year of recruitment.  

17. The short question that arises for consideration is  

as  to  whether  the  appellants  were  entitled  to  be  

considered for promotion on the post of Deputy Excise  

Commissioner under the 1983 Rules, on the vacancies,  

which  occurred  prior  to  the  amendment  in  the  

1983 Rules on 17th May, 1999.  Under the unamended  

1983  Rules,  the  petitioners  would  be  eligible  to  be  

considered for promotion by virtue of Rule 5(2).  By virtue  

of the Note to Rule 8, a combined eligibility list has to be  

prepared  by  arranging  the  names  of  Assistant  Excise  

Commissioner and Technical Officers in order of seniority  

as  determined  by  the  date  of  their  substantive  

19

appointment.  The appellants were, therefore, clearly in  

the feeder cadre of the post for promotion to the post of  

Deputy Excise Commissioner.  Rule 7 provides that the  

Appointing Authority shall determine the vacancies to be  

filled during the course of the year and the number of  

vacancies. There is no statutory duty cast upon the State  

to  complete  the  selection  process  within  a  prescribed  

period. Nor is there a mandate to fill up the posts within  

a particular time. Rather the proviso to Rule 2 enables  

the State to leave a particular post unfilled.  

18. However, it is a matter of record that the promotions  

under the 1983 Rules were to be made on the basis of  

the  criteria’s  laid  down  in  the  Uttar  Pradesh  

Government  Criterion for  Recruitment by Promotion  

Rules,  1994.   Rule  4  of  these  Rules  provided  that  

“Recruitments by promotion………….…..shall be made  

on the basis of seniority subject to the rejection of the  

unfit.”  Consequently, the appellants would have been  

eligible  for  promotion  on  the  basis  of  seniority,  as  

20

determined under the Note to Rule 8.  The aforesaid  

right for consideration to be promoted on the post of  

Deputy Excise Commissioner has been taken away by  

the  Uttar  Pradesh  Excise  Group  ‘A’  Service  (5th  

amendment) Rules, 1999.  

19.The  unamended and the  amended  Rule  5(3)  of  the  

1983 Rules are as under:

COLUMN 1 COLUMN 2 Existing sub-rule [3] Deputy  Excise Commissioner - By  promotion from amongst  substantively appointed  Assistant Excise  Commissioners, Technical  Officers and Statistical  Officers who have completed  two years service as such, on  their respective posts, on the first day of the year of  recruitment.       

Sub-rule  as  hereby  substituted    [3]   Deputy  Excise Commissioner - By  promotion  from  amongst  substantively  appointed  Assistant  Excise  Commissioners  who  have  completed  two  years  service  as  such  on  the  first  day  of  the  year  of  recruitment.

From  the  above,  it  is  evident  that  under  the  existing  

sub-rule  3,  substantively  appointed  Assistant  Excise  

Commissioner, Technical Officers and Statistical Officers,  

21

who have completed two years of service as such on their  

respective  posts  were  entitled  to  be  considered  for  

promotion on the post of Deputy Excise Commissioner.  

By  substitution  of  sub-rule  3,  only  Assistant  Excise  

Commissioner, who have completed two years service as  

such are made eligible for consideration for promotion as  

Deputy  Excise  Commissioner.   It  is  also  a  matter  of  

record that 12 vacancies existed on the post of Deputy  

Excise Commissioner for the year 1997-98 and 1998-99.  

Out of these 12 vacancies,  10 had arisen prior to 17th  

May, 1999 and two vacancies arose on 30th June, 1999.  

By virtue of the amendment in sub-rule 3 of Rule 5, the  

appellants  have  been  deprived  of  the  right  to  be  

considered for promotion on the post of Deputy Excise  

Commissioner. Respondents have been promoted by the  

impugned  order  dated  26th May,  1999  under  the  

amended Rules.   

20. Could the right of the appellants, to be considered  

under the unamended 1983 Rules be taken away? The  

22

promotions  of  the  12  vacancies  have  been  made  on  

26th May,  1999  under  the  amended  Rules.   The  High  

Court rejected the submissions of the appellants that the  

controversy herein is squarely covered by the judgment of  

this Court in the case of  Y.V. Rangaiah (Supra).   The  

High Court has relied on the judgment of this Court in  

Dr. K. Ramulu (supra).  

21. We are of the considered opinion that the judgment  

in Y.V. Rangaiah’s case (supra) would not be applicable  

in  the  facts  and  circumstances  of  this  case.   The  

aforesaid judgment was rendered on the interpretation of  

Rule  4(a)(1)(i)  of  the  Andhra  Pradesh  Registration  and  

Subordinate  Service  Rules,  1976.   The  aforesaid  Rule  

provided  for  preparation  of  a  panel  for  the  eligible  

candidates every year in the month of September. This  

was a statutory duty cast upon the State. The exercise  

was required to be conducted each year. Thereafter, only  

promotion orders were to be issued.  However, no panel  

had been prepared for the year 1976.  Subsequently, the  

23

rule  was  amended,  which  rendered  the  petitioners  

therein  ineligible  to  be  considered  for  promotion.   In  

these circumstances, it was observed by this Court that  

the amendment would not be applicable to the vacancies  

which had arisen prior to the amendment.  The vacancies  

which occurred prior to the amendment rules would be  

governed by the old rules and not the amended rules.  In  

the present case, there is no statutory duty cast upon the  

respondents  to either  prepare a year-wise panel  of  the  

eligible  candidates  or  the  selected  candidates  for  

promotion.  In  fact,  the  proviso  to  Rule  2  enables  the  

State to keep any post unfilled. Therefore, clearly there is  

no statutory duty which the State could be mandated to  

perform under the applicable rules. The requirement to  

identify the vacancies in a year or to take a decision how  

many  posts  are  to  be  filled  under  Rule  7  cannot  be  

equated with not issuing promotion orders to candidates  

duly  selected  for  promotion.  In  our  opinion,  the  

appellants had not acquired any right to be considered  

for  promotion.  Therefore,  it  is  difficult  to  accept  the  

24

submissions of  Dr.  Rajeev Dhawan that the vacancies,  

which had arisen before 17th May, 1999 had to be filled  

under the unamended rules.   

22. It  is  by  now  a  settled  proposition  of  law  that  a  

candidate has the right to be considered in the light of  

the existing rules, which implies the ‘rule in force’ on the  

date the consideration took place.  There is no rule of  

universal or absolute application that vacancies are to be  

filled invariably by the law existing on the date when the  

vacancy  arises.   The  requirement  of  filling  up  old  

vacancies  under  the  old  rules  is  interlinked  with  the  

candidate  having acquired a right  to be considered for  

promotion.   The  right  to  be  considered  for  promotion  

accrues  on  the  date  of  consideration  of  the  eligible  

candidates.  Unless, of course, the applicable rule, as in  

Y.V. Rangaiah’s case (supra)  lays down any particular  

time frame, within which the selection process is to be  

completed.   In  the  present  case,  consideration  for  

promotion  took  place  after  the  amendment  came  into  

25

operation.  Thus, it can not be accepted that any accrued  

or vested right of the appellants have been taken away by  

the amendment. The judgments cited by learned counsel  

for the appellants namely  B.L. Gupta Vs.  MCD (supra),  

P. Ganeshwar Rao Vs. State of Andhra Pradesh (supra)  

and N.T.  Devin  Katti  &  Ors. Vs. Karnataka  Public  

Service Commission & Ors (supra) are reiterations of a  

principle laid down in Y.V. Rangaiah’s case (supra).

23. All  these judgments have been considered by this  

Court  in  the  case  of  Rajasthan  Public  Service  

Commission Vs.  Chanan Ram & Anr. (supra).  In our  

opinion,  the  observations  made  by  this  Court  in  

paragraphs 14 and 15 of the judgment are a complete  

answer to the submissions made by Dr. Rajiv Dhawan. In  

that case, this Court was considering the abolition of the  

post of Assistant Director (Junior) which was substituted  

by  the  post  of  Marketing  Officer.  Thus  the  post  of  

Assistant  Director  (Junior)  was  no  longer  eligible  for  

promotion,  as the post of Assistant  Director had to be  

26

filled  by  100%  promotion  from  the  post  of  Marketing  

Officer.  It  was,  therefore,  held that the post had to be  

filled under the prevailing rules and not the old rules.  

24. In our opinion,  the matter  is  squarely covered by  

the  ratio  of  the  judgment  of  this  Court  in  the  case  of  

Dr. K. Ramulu (supra).  In the aforesaid case, this Court  

considered all the judgments cited by the learned senior  

counsel for the appellant and held that Y.V. Rangaiah’s  

case (supra) would not  be applicable  in  the  facts  and  

circumstances  of  that  case.   It  was  observed  that  for  

reasons  germane  to  the  decision,  the  Government  is  

entitled  to  take  a  decision  not  to  fill  up  the  existing  

vacancies as on the relevant date.  It was also held that  

when  the  Government  takes  a  conscious  decision  and  

amends the Rules, the promotions have to be made in  

accordance with the rules prevalent at the time when the  

consideration takes place.   

27

25. The High Court has noticed that the post of Technical  

Officers and statistical Officers have been deleted from  

the feeder cadre for promotion to the post of Deputy  

Excise  Commissioner  for  valid  reasons.   The  

Government  was  of  the  opinion  that  the  Technical  

Officers and Statistical Officers were not suitable to be  

promoted on the post of Deputy Excise Commissioner,  

which  involved  multifarious  administrative  

responsibilities.  The experience gained by the officials  

working  on  the  post  of  Technical  Officer  and  

Statistical Officer was of no relevance for the duties to  

be  performed  on  the  post  of  Deputy  Excise  

Commissioner.   Consequently,  a  conscious  decision  

was taken to  abolish the  feeder  cadre  consisting  of  

Technical  Officers  and  Statistical  Officers  for  

promotion to the post of Deputy Excise Commissioner.  

The  Division  Bench,  therefore,  correctly  applied  the  

ratio  laid  down  in  Dr.  K.  Ramulu’s case  (supra)  

wherein  this  Court  reiterated the  ratio  in  Union of  

India Vs.  K.V. Vijeesh  15   that for reasons germane to  

15 1996 3 SCC 139 28

the  decision,  the  Government  is  entitled  to  take  a  

decision not to fill  up the existing vacancies on the  

relevant date.

26.We are also unable to accept the submissions of  Dr.  

Dhawan that the conscious decision taken herein is  

not grounded on the relevant facts.  A perusal of the  

Counter Affidavit filed by the respondent herein shows  

that the recruitment of the appellant No.1 has been  

made  purely  with  the  objective  of  looking  after  the  

technical  work  pertaining  to  pharmacies  and  

industrial units.  Therefore, the requisite qualification  

for  the  post  is  Degree  in  Chemical  Engineering.  

Appellant  No.2  has  been  recruited  for  compilation,  

analysis  and  maintenance  of  statistical  data  of  the  

Excise  Department.   The  basic  qualification  for  the  

post of Statistical Officer is Graduation in Statistics.  

It appears that the two categories of posts have been  

eliminated as the incumbents on the said posts do not  

have any administrative experience.  The decision was  

29

taken clearly  in public  interest.   Since  the  decision  

has  been  taken  after  taking  into  consideration  the  

view points of both the sides, it can not be said to be  

arbitrary  or  based  on  irrelevant  considerations.  We  

also do not find any merit in the submission of Dr.  

Dhawan  that  the  amendment  has  been  given  a  

retroactive  operation  as  the  vacancies  which  arose  

prior to the amendment are sought to be filled under  

the amended rules.   

27. This Court in the case of Jai Singh Dalal Vs. State of  

Haryana (supra) has held as under:

“It is clear from the above pleadings that in 1990 the  State  Government  resolved  to  resort  to  special  recruitment  to  the  Haryana  Civil  Service  (Executive  Branch) invoking the proviso to Rule 5 of the rules.  Pursuant  thereto,  it  issued  the  notifications  dated  December 20, 1990 and January 25, 1991. The names  of  the  candidates  were  forwarded  by  the  State  Government  to  the  HPSC  for  selection.  The  HPSC  commenced  the  selection  process  and  interviewed  certain candidates. In the meantime, on account of an  undertaking given by the Advocate General to the High  Court at the hearing of C.W.P. No. 1201 of 1991 and  allied  writ  petitions,  the  State  Government  was  required  to  forward  the  names  of  the  candidates  belonging  to  two  other  departments  of  the  State  Government.  Before  it  could  do  so,  the  new  Government  came  into  power  and  it  reviewed  the  decision  of  the  earlier  Government  and  found  the  criteria  evolved  by  the  earlier  Government  

30

unacceptable  and  also  noticed  certain  infirmities  in  the  matter  of  forwarding  the  names  of  eligible  candidates. It, therefore, resolved to rescind the earlier  notifications of December 20, 1990 and January 25,  1991. It will thus be seen that at the time when the  writ  petition  which  has  given  rise  to  the  present  proceedings  was  filed,  the  State  Government  had  withdrawn  the  aforesaid  two  notifications  by  the  notification  dated  December  30,  1991.  The  stage  at  which  the  last-mentioned  notification  came  to  be  issued was the stage when the HPSC was still in the  process  of  selecting  candidates  for  appointment  by  special  recruitment.  During  the  pendency  of  the  present  proceedings  the  State  Government  finalised  the criteria for special recruitment by the notification  of  March  9,  1992.  Thus,  the  HPSC was  still  in  the  process  of  selecting  candidates  and  had  yet  not  completed  and  finalised  the  select  list  nor  had  it  forwarded  the  same  to  the  State  Government  for  implementation.  The  candidates,  therefore,  did  not  have any right to appointment. There was, therefore,  no question of the High Court granting a mandamus  or any other writ of the type sought by the appellants.  The law in this behalf appears to be well settled.”  

28. Similarly,  this  view  has  been  reiterated  by  this  

Court  in  the  cases  of  State  of  M.P.  &  Ors. Vs.  

Raghuveer Singh Yadav & Ors. (supra), H.S. Grewal Vs.  

Union of  India  & Ors. (supra)  and  Rajasthan Public  

Service Commission Vs.  Chanan Ram & Anr. (supra).  

This Court in  Rajasthan Public Service Commission’s  

case  (supra) has  held  that  it  is  the  rules  which  are  

prevalent at the time when the consideration took place  

31

for promotion, which would be applicable. In Para 17, it  

has been held as follows:  

“In the case of State of M.P. v. Raghuveer Singh Yadav  a Bench of two learned Judges of this Court consisting  of  K. Ramaswamy and N. Venkatachala,  JJ.,  had to  consider the question whether the State could change  a qualification for the recruitment during the process  of recruitment which had not resulted into any final  decision in favour of any candidate. In paragraph 5 of  the Report in this connection it was observed that it is  settled law that the State has got power to prescribe  qualification  for  recruitment.  In  the  case  before  the  Court  pursuant  to  the  amended  Rules,  the  Government  had  withdrawn  the  earlier  notification  and wanted to proceed with the recruitment afresh. It  was held that this was not the case of  any accrued  right.  The  candidates  who  had  appeared  for  the  examination and passed the written examination had  only legitimate expectation to be considered according  to the rules then in vogue. The amended Rules had  only  prospective  operation.  The  Government  was  entitled  to  conduct selection in accordance with  the  changed rules and make final recruitment. Obviously  no  candidate  acquired  any  vested  right  against  the  State.  Therefore,  the  State  was  entitled  to  withdraw  the  notification  by  which  it  had  previously  notified  recruitment  and  to  issue  fresh  notification  in  that  regard on the basis of the amended Rules. In the case  of  J&K  Public  Service  Commission v.  Dr  Narinder  Mohan9 another Division Bench of two learned Judges  of  this  Court  consisting of  K.  Ramaswamy and N.P.  Singh, JJ. considered the question of interception of  recruitment  process  earlier  undertaken  by  the  recruiting agency. In this connection it was observed  that  the  process  of  selection  against  existing  and  anticipated vacancies does not create any right to be  appointed  to  the  post  which  can  be  enforced  by  a  mandamus.  It  has  to  be  recalled  that  in  fairness  learned  Senior  Counsel,  Shri  Ganpule  for  the  respondent-writ  petitioner,  stated  that  it  is  not  his  case that  the writ  petitioner  should be appointed to  the advertised post. All that he claimed was his right  to be considered for recruitment to the advertised post  as  per  the  earlier  advertisement  dated  5-11-1993  Annexure  P-1  and  nothing  more.  In  our  view,  the  aforesaid limited contention also, on the facts of the  

32

present case, cannot be of any assistance to the writ  petitioner  as  the  earlier  selection  process  itself  had  become infructuous and otiose on the abolition of the  advertised posts, as we have seen earlier. The second  point,  therefore,  will  have  to  be  answered  in  the  negative in favour of  the appellants  and against  the  respondent-writ petitioner.”

29. It may be that the removal of the two posts from the  

feeder  cadre  would  lead  to  some  stagnation  for  the  

officers working on the two aforesaid posts.  In fact, the  

Government seems to recognize such a situation.  It is  

perhaps  for  this  reason  that  the  posts  have  been  

upgraded  to  the  post  of  Deputy  Excise  Commissioner.  

However,  mere  upgradation  of  the  post  may  not  be  

sufficient  compensation for  the officers working on the  

two posts for loss of opportunity to be promoted on the  

post of Deputy Excise Commissioner.   

30. In such circumstances, the Government may be well  

advised  to  have  a  re-look  at  the  promotion  policy  to  

provide  some  opportunity  of  further  promotion  to  the  

officers working on these posts.

33

31. With these observations, the impugned judgment is  

affirmed and the appeal is accordingly dismissed with no  

order as to costs.   

 …………………………………….J.                                                [B. Sudershan Reddy]

.…………………………………….J.                                                 [Surinder Singh Nijjar]

New Delhi; March 31, 2011.    

34