DEEPAK AGARWAL & ANR.versusSTATE OF UTTAR PRADESH & ORS.

                    [2011] 4 S.C.R. 149


              DEEPAK AGARWAL & ANR.                            A
                            v.
          STATE OF UTIAR PRADESH & ORS.
             (Civil Appeal No. 6587 of 2003)
                     MARCH 31, 2011
                                                               B
   [B. SUDERSHAN REDDY AND SURINDER SINGH
                  NIJJAR, JJ.]

   UTTAR PRADESH EXCISE GROUP 'A' SERVICE
RULES, 1983:                                                   c
     Rules 5(3)( as amended w.e.f.16.5.1999), 7 and 8 -
Promotion to Deputy Excise Commissioner - Exclusion of
Technical Officer and Statistical Officer from the feeder
streams w.e.f. 16.5.1999 - Vacancies occurring prior to D
amendment filled after amendment according to substituted
Rule 5(3) - Held: 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 - The requirement of filling up of old vacancies
                                                                 E
under the old rules is interlinked with the candidate having
acquired a right to be considered for promotion which accrues.
on the date of consideration of the eligible candidates - In
the instant case, consideration for promotion took place after
the amendment came into operation - Therefore, it cannot
be held that any accrued right of the two officers was taken F
away by the amendment - Moreover, a conscious decision
was taken to abolish the feeder cadre consisting of Technical
Officers and Statistical Officers for promotion to the post of
Deputy ~cise Commissioner - Service Law - Uttar Pradesh
Govemm~ Criterion for Recruitment by Promotion Rules,            G
1994- r.4 . . '

    SERVICE LAW:

    Promotion - Need to open avenues for - Technical
                        149                                    I-!
                                                                     '
    150      SUPREME COURT REPORTS               [2011] 4 S.C.R.


A Officers and Statistical Officers excluded wf,fom the feeder
  stream for promotion to Deputy Excise Commissioner in the
  State of U.P. - But posts upgraded - HELD: Mere
  upgradation may not be sufficient compensation for loss of
  opportunity of promotion - State Government advised to re-
B look at the promotion policy to provide some opportunity of
  further promotion to officers concerned - Uttlar Pradesh
  Excise Group 'A' Service Rules, 1983.
       Appellant no. 1, who was· appointed as a ~chnical
  Officer and appellant no. 2, who was appointed as
C Statistical Officer, filed a writ petition before the Higfl Court
  seeking to quash the Notification dated 17.5.1999
  whereby they had been rendered ineligible for promotion
  to the post of Deputy Excise Commissioner; as also the
  Notification dated 26.5.1999 promoting respondent nos.
D 3 to 9 as Deputy Excise Commissioners. They further
  prayed for a direction to the respondent-authorities to
  consider and promote them as Deputy Excise
  Commissioners. The stand of the appellants was that the
  vacancies arising prior to 17.5.1999 ought to be filled up
E in terms of the Uttar Pradesh Excise Group 'A' Service
  Rules, 1983, as they existed prior to the amendment
  dated 17 .5.1999. The High Court dismissed the writ
  petition.

F      In the instant appeal it was contended for the
  appellants that by the Uttar Pradesh Excise Group 'A'
  Service (5th Amendment) Rules, 1999, the posts of
  Technical Officer and Statistical Officer, were excluded
  from the feeder streams to the post of Deputy Excise
G Commissioner, w.e.f. 17.5.1999, but as there were 10
  vacancies prior to 17 .5.1999, those vacancies should
  have been filled as per the Rules existing at the time the
  vacancies occurred, and, therefore, the appellants were
  entitled to be considered for the said 10 vacancies under
H
-
    DEEPAK /.GARWAL & ANR. v. STATE OF UTIAR        151
                PRADESH & ORS.
Rule 5(2). The stand of the respondents, on the other      A
hand, was that no selection before the amendment had
taken place and that the amendment of the Rules was
based on a conscious decision taken by the Government
upon consideration of representations of both the sides.
                                                           B
     Dismissing the appeal, the Court

     HELD: 1.1. Service conditions of the appellants and
the private respondents are governed by U.P. Excise
Group 'A' Service Rules, 1983, framed in exercise of the
powers conferred by the proviso to Article 309 of the C
Constitution of India. A perusal Rule 5(3) of the 1983
Rules and Rule 4 of the Uttar Pradesh Government
Criterion for Recruitment by Promotion Rules, 1994 would
indicate that the appellants would have been eligible for
promotion on the basis of seniority, as determined under D
the Note to Rule 8. However, the said 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 by substitution of sub-rule (3) whereunder E
only Assistant Excise Commissioners, who have
completed two years service as such are made eligible
for consideration for promotion as Deputy Excise
Commissioner. [paras 15, 16 and 18] [162-C-D; 164-D-E;
165-B-D]                                                  F
      1.2. Rule 7 of the 1985 Rules provides that the
appointing authority shall determine the vacancies to be
filled during the course of the year. There Is no statutory
duty cast upon the State to complete the selection
process within a prescribed period. Nor is there a G
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. 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 H


                        '.'
   152     SUPREME COURT REPORTS            [2011] 4 S.C.R.

A promotion. 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
B issuing promotion orders to candidates duly selected for
  promotion. Therefore, it can not be said that the
  vacancies, which had arisen before 17-5-1999 had to be
  filled under the unamended rules. It can also not be said
  that the amendment has been given a retroactive
c operation as the vacancies which arose prior to the
  amendment are sought to be filled under the amended
  rules. [para 17, 21 and 26] [164-G-H; 165-A-B; 166-H; 167-
  A-C-E-H; 170-A-B]

        1.3. It is by now a settled proposition of law that a
D 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
E 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
F candidates, unless, of course, the applicable rule lays
  down any particular time frame, within which the selection
  process is to be completed. In the instant case,
  consideration for promotion took place after the
  amendment came into operation. Thus, it can not be
G accepted that any accrued or vested right of the.
  appellants have been taken away by the amendment.'
  [para 22] [167-F-H; 168-A-B]
      Rajasthan Public Service Commission Vs. Chanan Ram
  & Anr. 1998 (1) SCR 1099 = 1998 (4) SCC 202, Dr. K.
H Ramu/u & Anr. Vs. Dr. S. Suryaprakash Rao & Ors 1997 (1)
  DEEPAK AGARWAL & ANR. v. STATE OF UTIAR                153
             PRADESH & ORS.
 SCR 287    =   1997 (3) SCC 59 , Union of India vs.            A
                                         =
K.v. Vijeesh 1~92 (3) Suppl. SCR 816 1993 (2) Suppl.
SCC 600 ; Jai Singh Dalal vs. State of Hryana 1992 (3)
Suppl. SCR 816     =  1993 (2) Suppl. SCC 600; and State
of M.P. & Ors. Vs. Raghuveer Singh Yadav & Ors 1994 (2)
Suppl. SCR 459     =  1994 (6) SCC 151 , H. S. Grewal Vs.       B
Union of India & Ors. (1997) 11 SCC 758 • relied on.
     Y. V.Rangaiah & Ors. Vs. J.Sreenivasa Rao & Ors.
(1983) 3 SCC . 284; Food Corporation of India Vs.
Parashotam Das Bansal 2008 (2) SCR 412          = 2008 (5)
 SCC 100 ; P. Ganeshwar Rao Vs. State of Andhra Pradesh, C
1988. Suppl. SCR 805      =  1988 Suppl: sec 740; N. T.
Devin Katti & Ors. Vs. Karnataka Public Service Commission
& Ors 1990 ( 2 ) SCR 239      =  1990 ( 3 ) sec 157, A.A.
Catton Vs. Director of Education, (1983) 3 SCC 33, State of
Rajasthan Vs. R. Dayal 1997 ( 2 ) SCR 108     =  1997 (10 ) D
 sec 419, and B.L. Gupta Vs. M.C.D. (1998) 9 sec 223-
held inapplicable.
    1.4. The High Court has noticed that the post of
Technical Officers and Statistical Officers have been           E
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      F
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        G
consisting of Technical Officers and Statistical Officers for
promotion to the post of Deputy Excise Commissioner.
It cannot be said that the conscious decision so taken is
not grounded on the relevant facts. A perusal of the
counter affidavit filed by the respondent shows that the        H
                                                               --
    154     SUPREME COURT REPORTS            [2011] 4 S.C.R.

A recruitment of 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
B 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
c have any administrative experience. The decision was
  taken clearly in public interest. Since the decision has
  been taken after taking into consideration the view points
  of both the sides, it can not be said to be arbitrary or
  based on irrelevant considerations. [para 25-26] [169-A·
D H; 170-A-B]
       2. It may be that the removal of the two posts,
  namely, Technical Officer and Statistical Officer, from the
  feeder cadre would lead to some stagnation for the
  officers working on the said two posts. In fact, the
E 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
F two posts for loss of opportunity to be promoted on the
  post of Deputy Excise Commissioner. 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
G on these posts. [para 29] [172-H; 173-A-B]
                       Case Law Reference:
    (1983) 3 sec 284             held inapplicable para 2
    2008 (2) SCR 412             held inapplicable para 10
H
-..
_,


        DEEPAK AGARWAL & ANR. v. STATE OF UTTAR                 155
                   PRADESH & ORS.
       1988 Suppl. SCR 805           held inapplicable para 10         A
       1990 (2) SCR 239              held inapplicable para 10
       (1983) 3 sec 33               held inapplicable para 10
       1997 (2) SCR 108              held inapplicable para 10
                                                                       B
       (1998) 9 sec 223              held inapplicable para 10
       1997 (1) SCR 287              relied on           para 11
       1998 (1) SCR 1099             relied on           para 13
       1992 (3) Suppl. SCR 816 relied on                 para 13
                                                                       c
       1994 (2) Suppl. SCR 459 relied on                 para 13
       (1996) 3 sec 139              relied on           para 25
                                                          ..           D
          CIVIL APPELLATE JURISDICTION : Civil Appeal No.
      6587 of 2003.

          From the Judgment & Order dated 16.4.2002 of the High
      Court of Judicature at Allahabad in C.M.W.P. No. 34533 of
      1999.                                                            E
          Dr. Rajesh Dhawan, P.S. Narasimha, Dinesh Dwivedi,
      Pankaj Bhatia, Vivek Chaudhary, Dr. Kailash Chand, Priyanka
      Singh, K. Parmeshwar, K.K. Mohan, Ravi Prakash Mehrotra,
      Mukesh Verma, Vibhu Tiwari, Abhishek K. Singh for the
      appearing parties.                                               F

          The Judgment of the Court was delivered by

           SURINDER SINGH NIJJAR, J. 1. This appeal is directed
      against the judgment of the High Court of Judicature at
                                                                       G
      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.
                                                                       H
    156      SUPREME COURT REPORTS                [20111 4 S.C.R.      -

A 3 to 9 as Deputy Excise Commissioner, and further to consider
  and promote the appellants as Deputy Excise Commissioner,
  on the vacancies that arose before 17th May, 1999.

       2. Old vacancies have to be filled under the old rules is
  the mantra, sought to be invoked by the appellants in support
8 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.
c
       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 ')
D 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 recruited through the Uttar Pradesh Public
  Service Commission and appointed on the post of Statistical
E 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 .
F 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)
G 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.
:-1 1. (1983) 3 sec 284.
    DEEPAK AGARWAL & ANR. v. STATE OF UTTAR                    157
    PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]
        5. It came to the knowledge of the appellants that U.P.        A
  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,            B
  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         c
  due to the retirement of Deputy I Joint Excise Commissioner.
  It is the case of the appellants that they were entitled to be
  consid.ered for the aforesaid 10 vacancies under Rule 5(2).
       6. lnspite of the representation made by the appellants, the
  1983 Rules were amended on 17th May, 1999. By the                    D
  aforesaid amendment, the posts of Technical Officers and
  Statistical Officers have been excluded from the feeder cadre
  for promotion to the post of Deputy Excise Commissioner. This
  amendment came just two days before the DPC was scheduled
  to meet on 19th May, 1999. As a consequence of the                   E
  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              F
  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       G
  dated 26th May, 1999 wherein the State Government granted
  promotion to the 10 persons (Respondent Nos. 3 to 9) to the
  posts of Deputy Excise Commissioner. Aggrieved by the same,
  the appellants filed a writ petition before the Allahabad High
  Court challenging the Notification dated 26th May, 1999. It was      H
,,


          158        SUPREME COURT REPORTS                 [2011] 4 S.C.R.

     A 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
     8
          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
     c May, 1999 in the Schedule is invalid because -
                (a) it abolishes Technical Assistant Officers (TAO) and
          Statiistical Officer (SO) as feeder streams to the post of Deputy
          Excise Commissioner.
     o       (b) denies TAO and SO the right to be considered for
         promotion.
             (c) stagnates them by denying any promotional avenue and
         memly gives them a 'sop' of up-gradation with no avenue to
         promotion.
     E
              (d) gives retroactive application to the amendment to
         exclude persons covered by the pre-amended rules of 1983.
         SUBMISSIONS ON FACTS -

     F      9. By the amendment, the avenue of promotion of the
       app191lants 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
     G unreasonable for the State to do a total volte-face. Only reason
       for such a volte-face was the pressure from the Excise
       Commissioner to be favoured.
         · SUBMISSIONS ON LAW -
     H          10. Right to be considered for promotion is a valuable right.
     DEEPAK AGARWAL & ANR. v. STATE OF UTTAR                159
     PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]
The Government is required to make necessary provision in the A
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 Bansa/2 in support
of the submissions that the Superior Courts have the jurisdiction. B
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 C
17th May, 1999. Reliance is also placed on Rule 7 to show that
the Government has to determine the number of vacancies to
be filled during the course of the year. Learned counsel also
relied on the decisions of this Court in the cases of P.
Ganeshwar Rao Vs. State of Andhra Pradesh, 3 N. T. Devin
Katti & Ors. Vs. Karnataka Public Service Commission &              D
Ors. 4 A.A. Catton Vs. Director of Education, 5 State of
Rajasthan Vs. R. Dayal 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,               E
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.                 ·   F
    11. On facts, he submits that there was no legally binding
conscious decision taken in this case. The criteria laid down

2.    (2008) 5 sec 1oo.
                                                                    G
3.    1988 (Supp) sec 740.
4.    (1990) 3 sec 157.
5.    (1983) 3 sec 33.
a.    (1997) 10 sec 419.
1.    (1998) 9 sec 223.                                             H
    160       SUPREME COURT REPORTS                 [2011] 4 S.C.R.


A 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
8 not even raised in the High Court. It is raised in this Court based
  on the observations made by the High Cou.rt. 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
C to prepare combined eligibility list of the candidates in order
  of seniority determined by the dates of their substantive
  appointments. Furthermore, the promotions under Rule 5(2) are
  to be made on the basis of the criteria in "The Uttar Pradesh
  Servants Criterian for Recruitment by Promotion Rules, 1994."

D       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
E amendment in this rule to introduc.e 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
F 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.

G         (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.

          Qii) The right of the candidate is to be consideied under
H   a. (1997) 3 sec 59.
 DEEPAK AGARWAL & ANR. v. STATE OF UTTAR                     161
 PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]
    the Rules in force on the date the consideration takes A
    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. B
    Grewal Vs. Union of India & Ors12 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. ·
                                                                     c
    (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 of High Court of Delhi
    & Anr. Vs. A.K. Mahajan & Ors. 13, New India Sugar Worl<s
    Vs. State of U.P1 4 • and Dr. K. Ramulu (Supra).                 D
    (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).                     E
    (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.                                             F
      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
9. 1993 {Supp) 2 sec 600.                                            G
10. (1998) 4 sec 202.
11. (1994) 6 sec 151.
12. (1997) 11 sec 758.
13. c2009) 12 sec 62.
14. (1981) 2 sec 293.                                                H
                                                                         -
    162        SUPREME COURT REPORTS                [2011] 4 S.C.R.


A requirement under Rule 7 of the applicable rules in this case
  to prepare a year wise panel of the selected candidates.
  Therefore, no acquired or vested· right of the appellants has
  been taken away. Under Rule 7, the vacancies have only to be
  identified. The right accrues only at the time of consideration
B 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.
c      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
D India. Therefore, it would be appropriate to notice the relevant
  provisions of the Rules at this juncture.
          Rule 2:- Status of the Service - The Uttar Pradesh Excise
          Group 'A' Service is a State service comprising Group 'A'
E         posts.
          Rule 3(g):- "Service" means the Uttar Pradesh Excise
          Group 'A' Service;
          (h); "Substantive appointment" means an appointment, not
F         being an ad hoc 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;
G
          (i) "Year of recruitment" means a period of twelve months
          commencing from the first day of July of a calendar year.
          Rule 4: Cadre of Service - (1) the strength of the servi~
          shall be such as may be determined by the Government
H         from time to time.
DEEPAK AGARWAL & ANR. v. STATE OF UTIAR                       163
PRADESH & ORS. [SURINDER SINGH NIJJAR, J.J
   (2) The strength of the service shall, until orders varying the   A
   same are passed under sub-rule (1), be as follows:


   Name of the post                     Number of Posts
                                                                     8

                             Permanent          Temporary
Joint Excise Commissioner                              6
Deputy Excise Commissioner         11                  6             c

   Provided that -
   [iJ The appointing authority may leave unfilled or the            D
   Governor may hold in abeyance any vacant post, without
   thereby entitling any person to compensation;
   [ii] The Governor may create such additional permanent
   or temporary posts as he may consider proper.
                                                                     E
   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      F
   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 G
  to Scheduled Castes, Scheduled Tribes and other
  categories under Rule 6.
   Rule 8(3): The Appointing Authority shall prepare eligibility
   list of the candidates in accordance with the Uttar Pradesh
                                                                     H
    164       SUPREME COURT REPORTS                [2011] 4 S.C.R.

A         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.
B
          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
c         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 substantively appointed
D 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
E 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
F 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
G Technical Officers in order of seniority as determined by the
  date of their substantive appointment. The appellants were,
  therefore, clearly in the feeder cadre of the post for promotion
  to the post of Deputy Excise Commissioner. Rule 7 provides
  that the Appointing Authority shall determine the vacancies to
H be filled during the course of the year and the number of
                                                                  /

  DEEPAK AGARWAL & ANR. v. STATE OF UTTAR 1.65
  PRADESH & ORS. [SURINDER SINGH NIJJAR, J.] ·
vacancies. There is no statutory duty cast upon the State to A
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.
                                                                      B
      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 C
made on the basis of seniority subject to the rejection of the
unfit." Consequently, the appellants would have been eligible
for promotion on the basis of seniority, as determined under
the Note to Rule 8. The aforesaid right for consideration to be
promoted on the post of Deputy Excise Commissioner has
been taken away by the Uttar Pradesh Excise Group 'A' Service · D
(5th amendment) Rules, 1999.

    19. ·The unamended and the amended Rule 5(3) of the
1983 Rules are as under:
                                                                      E
    COLUMN 1                         COLUMN 2

   Existing sub-rule [3] Sub-rule as hereby substituted
   Deputy              Excise [3]       Deputy        Excise
   Commissioner - By Commissioner - By promotion
   promotion from amongst from amongst substantively F
   substantively appointed appointed Assistant Excise
   Assistant           Excise Commissioners who have
   C o m m i s s i o n e r s , completed two years service as
   Technical Officers and such on the first day of the ~ar
   Statistical Officers who of recruitment.                   G
   have completed two
   years service as such, on
   their respective posts, on
   the first day of the year of
   recruitment.                                               H
    166      SUPREME COURT REPORTS               (2011] 4 S.C.R.


A        From the above, it is evident that under the existing sub-
  rule 3, substantively appointed Assistant Excise Commission~r.
  Technical Officers and Statistical Officers, who have completed
  two years of service as such on their respective posts were
  entitled to be considered for promotion on the post of Deputy
B 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
c Excise Commissioner for the year 1997-98 and 1998-99. Out
  of these 12 vacancies, 10 had arisen prior to 17t!1 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
D 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
E 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
F judgment of this Court in Or. 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
G 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
H exercise was required to be conducted each year. Thereafter,
  DEEPAK AGARWAL & ANR. v. STATE OF UTTAR                     167
  PRADESH & ORS;-[SURJNQER Sll'_JGH NIJJAR, J.]

only promotion orders were to be issued. However, no panel A
had been prepared for the year 1976. Subsequently, the rule
was amended, which rendered the petitioners therein ineligible
to be considered for promotion. In these circumstances, it was
observed by this Court that the amendment would not be
applicable to the vacancies which had arisen prior to the B
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       c
promotion. In fact, the proviso to Rule 2 e11ables 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
                                                                  0
under Rule 7 cannot be equated with not issuing promotion
orders to candidates duly selected for promotion. In our opinion,
the appellants had not acquired any right to be considered for
promotion. Therefore, it is difficult to accept the submissions
of Dr. Rajeev Dhawan that the vacancies, which had arisen E
 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       F
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 havirig acquired a right to be considered for               G
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,            H
                                                                      •




    168      SUPREME COURT REPORTS               [2011] 4 S.C.R.


A consideration for promotion took place after the amendment
  came into operation. Thus, it can not be accepted that any
  accrued or vested right of the appellants have been taken away
  by the amendment. The judgments cited by learned counsel for
  the appellants namely B.L. Gupta Vs. MCD (supra), P.
B 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).                                ·

C      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
D of the post of Assistant Director (Junior) which was substituted
  by the post of Marketing Officer. Thus the post of Assistant
  Director (Junior) was no longer eligible for promotion, as the
  post of Assistant Director had to be filled by 100% promotion
  from the post of Marketing Officer. It was, therefore, held that
E 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
F (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
G 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.
H
  DEEPAK AGARWAL & ANR. v. STATE OF UTTAR                       169
  PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]
     25. The High Court has noticed that the post of Technical A
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 . B
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 c
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 D
in Union of India Vs. K. V. Vijeesh 15 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 .
               •
      26. We are also unable to accept the submissions of Dr.
Dhawan that the conscious decision taken herein is not                  E
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   F
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            G
incumbents on the said posts do not have any administrative
experience. The decision was taken clearly in public interest.
Since the decision has been taken after taking into
consideration the view points of both the sides, it can not be
15. 1996 3 sec 139.                                                     H
    170        SUPREME COURT REPORTS               [2011] 4 S.C.R.


A 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.
B
        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'
c         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
D         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

•
E
          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
F         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
G
          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
H
 DEEPAK AGARWAL & ANR. v. STATE OF UTTAR                   171
 PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]
    recruitment. During the pendency of the present               A
    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        B
    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         c
    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.               D
Chanan Ram & Anr. (supra). This Court in Rajasthan Public
Service Commission's case (supra) has held that it is the rules
which are prevalent at the time when the consideration took
place for promotion, which would be applicable. In Para 17, it
has been held as follows:                                         E

    "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 F
    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 G
    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 H
    172        SUPREME COURT REPORTS                 [2011) 4 S.C.R.


A         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
B         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
c         Rules. In the case of J&K Public SeNice Commission v.
          Dr Narinder Mohani 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
D         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
E
          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
F         the facts of the present case, cannot be of any assistance
          to the writ petitioner as the earlier selection process itself
          had become infructuous and otiose on the abolition of the
          advertised posts, as we have seen earlier. The second
          point, therefore, will have to be answered in the negative
G         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
H working on the two aforesaid posts. In fact, the Government
 DEEPAK AGARWAL & ANR. v. STATE OF UTTAR                   173
 PRADESH & ORS. [SURINDER SINGH NIJJAR, J.]
s~ems to recognize such a situation. It is perhaps for this reason A
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.                                        B

     30. In sucti 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.
                                                                  c
      31. With these observations, the impugned judgment is
affirmed and the appeal is accordingly dismissed with no order
as to costs.
R.P.                                       Appeal dismissed.      D