THE HON’BLE SRI JUSTIE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE G BHAVANI PRASAD WRIT PETITION NO. 18975 OF 2000 ORDER: ( Per Sri Justice B Prakash Rao) Heard Sri P.S.P. Suresh Kumar, learned counsel appearing on behalf of Sri.A.Rajashekar Reddy, Additional Solicitor General and learned Government Pleader for Services-I for petitioners and Sri B. Sree Ram Krishna, learned counsel appearing for first respondent herein. The petitioner herein is Union of India, through its Post Master General and other representatives from the postal department, who filed this writ petition under Article 226 of the Constitution of India, inter-alia seeking for a writ of mandamus assailing the correctness of the orders passed in O A No. 608 of 1998 dated 16.8.1999 on the file of the Central Administrative Tribunal, Hyderabad bench, allowing an application filed by the first respondent herein under Section 19 of the Administrative Tribunals Act, 1995, wherein, the first respondent herein, at the relevant point of time working as Extra Departmental Branch Post Master, sought for the following reliefs; i).. To call for the relevant records pertaining to the case and verify the accuracy of the determination of the vacancies for the DPC meeting held in July 1997 and on 21.1.1998 as well as the DPC Minutes for promotion of EDAs to Group D and files No.B5/10/96 and B9/1 of the SSP, Bhimavaram (R-1) ii).. To direct the SSP, Bhimavaram (R-1) to hold a Review DPC meeting to consider the case of promotion of the applicant against the vacancies which have arisen in July 1997 or vacancies to arise in future and promote the applicant to Group D with effect from 24.7.1997 with all consequential service and monetary benefits; iii).. To quash the Memo No.B-9/1 dated 17.2.1998 iv).. To direct the Director General, Departments of Posts, New Delhi (R-3) to modify suitably the instructions issued by him in his letter Nos. 44.31/87-SPB.I dated 28.8.1990 and letter No. 47.11/93-SPB.I dated 25.8.1993 as they are arbitrary, discriminatory and violative of Article 14 and 16 of the constitution of India by deleting the maximum age limit of 50 years for EDAs to be eligible for promotion to Group D or atleast to bring them in conformity with the various instructions and guidelines issued by the Department of personnel and training in O.M No. 22011/5/86-est (D) dated 10.4.1989 as referred in para 4.9 supra and as shown in annexure A.XVI so as to safeguard the career prospects of EDAs such as the applicant nearing the age of 50 years, as the existing instructions are incomplete , defective and irrational….” After contest by the writ petitioners, who have filed a counter affidavit before the Tribunal stating the reasons as to how the applicant therein would not be entitled to any such relief. On consideration of the matter, the Tribunal, under the impugned orders, given the following directions; “If the applicant has been promoted as Postman against the vacancies that had arisen in the year 1997, then his qualifying service should be counted from the date the said vacancies arose in the year 1997 upto the age of superannuation.” In brief, the facts necessary for consideration of the question as sought to be raised by the first respondent in his application are that in the Departmental Promotion Committee (for short DPC) meeting which was held on 21.1.1998, there has been selections for which the applicant has also applied for. The complaint of the applicant in brief was that since the DPC meeting was held in July, 1997, for filling up the vacancies which have been existing and since he was qualified for promotion to such vacancies to Group- D, he should have been given promotion, rather the same was rejected vide orders dated 18.2.1998 in spite of filing a representation dated 28.1.1998. It is to be pointed out that though the applicant /first respondent herein has come forward before the Tribunal with detailed pleadings raising several aspects, one for claiming and another stating as to how no such relief could be granted, the Tribunal sought to give aforesaid directions only on the ground that since he crossed the age of 50 years as on the date of vacancies that arose in the year, 1997, therefore the qualifying service should be counted from the said date and not from the date on which he was appointed and a direction was given on the premise that if any such promotion is given effect to as post man in the vacancies that arose in the year 1997, necessarily the qualifying service has to be counted from the said year but not from the date of meeting of the DPC. It is these directions and also the entitlement of the applicant/first respondent for such relief, is the question in this writ petition. Learned counsel appearing on behalf of the petitioners submitted that in spite of narration in detail and at length in the main application, no case has been made out to establish his right or claim as such, and no direction can be given either on law on facts of the case, as has been given by the Tribunal. These submissions were sought to be repelled on behalf of the first respondent/applicant on the ground that the Tribunal by taking into account the applicant’s entitlement as on the date when the vacancies arose, rightly approached in giving such directions, therefore, same cannot be assailed. Having heard both sides and on perusal of the material available on record, the question which ultimately boils down for consideration is as to whether the applicant/first respondent is entitled to be considered for such relief.? On the above conspectus of the facts and circumstances, there is no dispute to the fact that the applicant/first respondent was appointed on 22.12.1998 itself and his date of birth being 25.5.1948 he attained the age of 50 years as on 25.5.1998. Therefore, even prior to the date of appointment as post man he does not fulfill the basic qualification of qualifying service. Admittedly, the applicant has approached the Tribunal with the varied and comprehensive reliefs which includes even assailing the correctness of the existing rule and for necessary consequential modification as well, however, such question has not been gone into nor there is any challenge at this stage or submissions made on behalf of applicant/first respondent in regard to the validity of correctness of the Rules. Therefore, as the law stands, the maximum age limit of 50 years to be eligibility for promotion to Group D and necessarily the applicant/first applicant is bound by the same. The existence of vacancies and DPC conducting a meeting is concerned, there is no question of any right for any employ to claim for holding a DPC meeting or even to seek promotion as long as the process is not duly initiated by the competent authorities. In Union of India and others Vs. Majji Jangammayya and others [1] it has been held as follows; “that no employee had any right to have a vacancy in the higher post filled as soon as the vacancy occurred. Government had the right to keep the vacancy unfilled as long as it chooses. Promotions to the post of Assistant Commissioner were on the basis of the selection list prepared by the Committee and were to be made prospectively and not retrospectively. Similarly in P.U.Joshi and others Vs. Accountant General, Ahmedabad and others [2] it has been held that determination of conditions of service, alteration thereof by amending rules, constitution, classification or abolition of posts, cadres or categories of service, amalgamation, bifurcation of departments, reconstitution, restructuring of the pattern etc, all pertain to executive policy and within exclusive discretion of the State, subject to limitations and restrictions envisaged in the Constitution. Government Servants have only right to safeguarding rights or benefits already earned, acquired or accrued but they cannot challenge the authority of State to make such amendments or alterations in rules. Nor can Tribunal interfere with the exclusive discretionary jurisdiction of the state. Therefore in view of the aforesaid well established principles which are not in dispute nor there are any other contra decisions have been cited across the bar, it is to be held that on a reading of the Rule concerned, for any such promotion to Group-D, necessarily the applicant has to satisfy the qualifying service. No doubt, the vacancies might have arisen in the year 1997, however, the DPC was held only on 21.1.1998 and the applicant was already over aged as on 25.5.1998. In view of the same, it cannot be said that the applicant has got any right to be considered nor any Court of law can given any such mandate as given by the Tribunal in this case. Further, even though several aspects have been pointed out from both sides in their respective pleadings including as to varied prayers and in spite of the same, no such question or objection has coming forth from both sides for consideration nor there is any finding either way. In the absence there of and without laying a proper foundation as to the correct position of law and requirement there under subject to the satisfaction of the parameters contemplated, it cannot be said that any Court or Tribunal can give such directions. In the circumstances, we are of the view that the applicant has totally failed to establish his case and make out his right to seek any such direction or relief as sought for. Hence, we do not find any merits in the application as filed or even in the directions given by the Tribunal under the impugned orders. Accordingly, the writ petition is allowed and the orders of the Tribunal in O A No. 608 of 1998 dated 16.8.1999 are hereby set aside. No costs. ________________ B PRAKASH RAO,J __________________ G BHAVANI PRASAD,J DATE: 19-07-2010 TVK [1] AIR 1977 SC 757 [2] 2003(2) SCC 632