IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.5534 of 2008 (O&M) Date of decision: 29.3.2010 Gurmeet Singh and others -----Appellants Vs. The State of Punjab and others -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH Present:- Mr. Rajiv Atma Ram, Sr.Advocate with Mr. G.S.Mann, Advocate for the petitioners. Mr. Kanwaljit Singh, Sr.Advocate with Ms. Sukhwinder Kaur, Advocate for respondent No.3. Mr. Anuj Raura, Advocate for respondent nos. 4 to 20. --- Adarsh Kumar Goel,J. 1. This petition seeks direction to fill up vacancies of Assistant Managers arising prior to amendment to the Rules on 10.3.2008 in accordance with un-amended rules and for quashing of clause 8 of Appendix II to the Punjab State Cooperative Agricultural Development Bank Service (Common Cadre) Rules, 1978 (for short, ‘the Rules’). CWP No.5534 of 2008 (O&M) 2. Case of the petitioners is that they are working as Field Officers in the Punjab State Cooperative Agricultural Development Bank Limited, Chandigarh. Their services are governed by the rules framed under section 84-A of the Punjab Cooperative Societies Act, 1961 (for short, ‘the Act’). Prior to 10.3.2008, further promotion to the post of Assistant Manager was made in quota of 62.04 : 37.06. As a result of the amendment, provision was incorporated by way of Clause 8 of Appendix II providing for promotion to the post of Assistant Manager on the basis of total length of service as Clerk or as Field Officer. The relevant rule prior to and after amendment reads as under:- Qualification for promotion Prior to Amendment After amendment “By promotion from By promotion from amongst the Clerks amongst the Clerks and Field Officers and Field Officers according to their according to their numerical strength length of service having experience having an experience of atleast 5 years as of atleast 5 years as Clerk or Field Officer.” Clerk or Field Officer.” 3. The petitioners gave legal notice raising demand that quota of Field Officers should be retained in reply to 2 CWP No.5534 of 2008 (O&M) which the stand of the bank was that educational qualification for the two posts i.e. of Clerk and Field Officer being same and nature of duties being same, amendment was necessary to protect the rights of employees with longer service. 4. Main contention put forward in the writ petition is that on 10.3.2008 i.e. just prior to the amendment of the rules, 15 vacancies were available in the quota of Field Officers and in view of law laid down in Y.V.Rangaiah and others v.State of Andhra Pradesh and another, AIR 1983 SC 852, the said 15 posts had to be filled up according to un-amended rules. It was further submitted that qualification for Field Officer was 2nd Class Graduate while for Clerks, it was simple Graduate. Field Officer was also required to be qualified Patwari from Revenue Training Centre or having training in Agriculture Development Banking from some Regional Training Centre which was not the qualification for Clerk. Clerk was to work in the office while Field Officer was to work in the field. Thus, the amended rule treated unequals as equals. 3 CWP No.5534 of 2008 (O&M) 5. The petition has been contested. In the reply filed by the Bank, stand taken is that though earlier quota was provided for the Clerks and the Field Officers in proportion of their respective strengths, the Bank merged the two cadres after taking the employees Union into confidence. As regards qualifications, it was pointed out that though there was slight difference in the qualifications of Field Offices and Clerks, it could not be held that the Clerks had lesser qualification, as apart from qualification, Clerks were also required to have certain qualifications which were not required from Field Officers. Further affidavit dated 22.3.2010 has been filed stating that upto June 2004, promotions were made in the ratio of 62.4 : 37.6 between Clerks and Field Officers. From June 2004, the said ratio was changed to 69 : 31 upto 19.12.2007. After 19.12.2007 and till the date of amendment of the rule, promotion process was not started. 24 posts remained which were filled up after the amendment and eight out of the total 32 writ petitioners were also given promotion. 6. We have heard learned counsel for the parties and perused the record. 4 CWP No.5534 of 2008 (O&M) 7. Contention raised on behalf of the petitioners is that the amendment to the rules dated 10.3.2008 could have affected vested right to promotion as per unamended rules. It was further submitted that posts of Filed Officers were created only in the year 1995 while the Clerks were already working and thus, the Field Officers will not get chance of promotion. 8. Learned counsel for the Bank stated that no vested right existed in favour of the petitioners so as to affect the power of amendment. Right to be considered for promotion is available in accordance with the rules that may be in force. The judgment in Y.V.Ranghaiah is thus, distinguishable. He further submitted that the Bank was willing to constitute an expert committee to consider a mechanism to remove stagnation if no promotion is given upto 20 years of service. 9. Question for consideration is whether rule laid down in Y.V.Ranghaiah is violated by the amendment being made applicable to vacancies existing on the date of amendment. 5 CWP No.5534 of 2008 (O&M) 10. Learned counsel for the petitioners submitted that all the 24 posts which were available on the date of amendment were filled up out of the Clerks while as per ratio which was being followed, atleast 7 persons out of Field Officers were entitled to be considered for the posts of Assistant Managers. 11. Contention raised in the petition cannot be accepted. Right to be considered for promotion and right to promotion are well known concepts. Right to be considered for promotion cannot be equated to vested right of promotion. Vested right to promotion arises when under the unamended rules, there is provision for time bound steps resulting in crystallization of right of promotion. In such a situation, even after amendment, the promotions have to be made according to old rules as held in Y.V.Rangaiah. In absence thereof, the new rules cannot be held to affect any vested right. Reference may be made to judgment of the Hon’ble Supreme Court in Rajasthan Public Service Commission v. Chanan Ram and another, (1998) 4 SCC 202, paras 15 to 17 holding:- 6 CWP No.5534 of 2008 (O&M) “15. However as strong reliance was placed by the High Court on the judgments of this Court and which were again pressed in service by learned senior counsel for respondent No. 1 writ petitioner we may briefly refer to these judgments. In the case of Y. V. Rangaiah v. J. Sreenivasa Rao (1983) 3 SCC 284 : (AIR 1983 SC 852) a Bench of two learned Judges of this Court had to consider the question about applicability of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules which laid down the procedure for appointment by promotion to the posts in that service. Considering the said rules it was observed that when the said rules enjoined the appointing authority to prepare panels for selecting promotees yearwise in old vacancies to be filled in by promotion if panels were not prepared at appropriate time the authorities could be directed to prepare such panels and while preparing those panels for the earlier years the then existing statutory rules of recruitment had to be applied. The said decision obviously cannot apply on the facts of the present case for two reasons. Firstly, this is not a case of promotion but direct recruitment to the advertised posts and secondly the scheme of the A.P. Rules considered by the Court in that case cast a 7 CWP No.5534 of 2008 (O&M) statutory duty and obligation on the part of the appointing authority to prepare panels of eligible candidates yearwise in connection with the vacancies then existing and if they had failed in that statutory duty and obligation they could legitimately be called upon to carry out that obligation and while doing so for preparing the panels for the earlier years the relevant rules then existing had to be kept in view. But even apart from these two distinguishing features one additional salient aspect of the matter is that these panels were to be prepared for filling up vacancies by promotion to the posts of Sub- Registrars Grade II. The said posts continued to exist in the cadre and the only question was how the vacancies in the said existing posts had to be filled in by promotion by preparing panels for the relevant years. As we have seen earlier in the present case the old posts of Assistant Directors (Junior) had ceased to exist. Therefore, there remained no occasion for proceeding with recruitment to such non-existing posts pursuant to the earlier state and infructuous advertisement of 5th November, 1993 Annexure P-1. In the same volume at page 33 is found another decision in the case of A.A. Catton v. Director of Education (1983) 3 SCC 33 : (AIR 1983 SC 1143). It is true that in that case another Division 8 CWP No.5534 of 2008 (O&M) Bench of this Court consisting of E.S. Venkataramiah (as he then was) and A. N. Sen, JJ. held that the process of selection under S. 16- F of the U.P. Intermediate Education Act, 1921 by way of direct recruitment commenced from the stage of calling for applications for a post up to the date on which the Director became entitled to make a selection under the said provision and the entire process was an integrated one. But even in that case there was no question of the said posts to be filled in by direct recruitment ceasing to exist under the Act and the Rules. Not only that there was an earlier order of the High Court in the proceedings between the contesting parties whereby the High Court had remanded direct recruitment proceedings for being re- considered by the Director and in view of the said order of the High Court which had become final between the parties it would not be said subsequently that the Director could not undertake the exercise of appointment by way of direct recruitment as the Act had got amended in the meantime. In the case of P. Ganeshwar Rao v. State of Andhra Pradesh, 1988 (Supp) SCC 740 : (AIR 1988 SC 2068) another Division Bench of two learned Judge of this Court consisting of E.S. Venkataramiah and N. D. Ojha, JJ. had to consider the question whether the 9 CWP No.5534 of 2008 (O&M) process of filling up of 51 vacancies which had been notified by the Public Service Commission for direct recruitment under the then existing recruitment rules which permitted clubbing of temporary vacancies also for the purpose of recruitment could be continued further if pending such recruitment process the rules of recruitment got amended and only 371/2% of substantive vacancies could be filled up by direct recruitment. Answering this question Venkataramiah, J., (as he then was) speaking for the Court held that the amendment to the recruitment rules referred to future vacancies only as the Explanation which was introduced by way of amendment to Special Rules on 28th April, 1980 contained the crucial words 371/2 per cent of substantive vacancies arising in the category of Assistant Engineers shall be filled by direct recruitment....... The words vacancies arising in the category' were emphasised to mean future vacancies and which could not cover earlier erstwhile vacancies and therefore, it was held that for filling up the earlier vacancies which had arisen prior to the amendment, the old rules would apply. In paragraph 7 of the Report, however, the following pertinent observations were also made : 10 CWP No.5534 of 2008 (O&M) ".........If the above clause had read '371/2 per cent of the substantive vacancies in the category of Assistant Engineers shall be filled by the direct recruitment, perhaps there would not have been much room for discussion. The said clause then would have applied even to the vacancies which had arisen prior to the date of the amendment but which had not been filled up before that date........." It is, therefore, obvious that this Court in P. Ganeshwar's case (AIR 1988 SC 2068) (supra) itself held that if the recruitment rules underwent amendment prior to actual filling up of the advertised posts the amended rules would apply and it is only because of the word arising as found to have been employed in the amended provision that the aforesaid decision was rendered. But even that apart, this decision also referred to existing posts and had nothing to do with posts which had got abolished in the meantime as in the present case. We may now refer to a three Judge Bench decision of this Court in the case of P. Mahaendra v. State of Karnataka (1990) 1 SCC 411 : (AIR 1990 SC 405). In that case a Bench of three learned Judges of this Court consisting of E.S. Venkataramiah, C.J. K. N. Singh and N. M. Kasliwal, JJ., 11 CWP No.5534 of 2008 (O&M) speaking through Singh, J. had to consider the question whether the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962 which had earlier prescribed a diploma in Automobile Engineering or Mechanical Engineering as a minimum qualification for appointment of a Motor Vehicle Inspector, once amended in 1987, could affect the earlier process of selection undertaken in the light of prior unamended rules by the Karnatake Public Service Commission and could make the earlier diploma-holder applicants ineligible only because after amendment of the rules diploma- holders could not apply for such posts. It was found as a matter of fact that the earlier selection process when the unamended rules were holding the field had got completed. The selected candidates were already recommended for appointment and their appointments would have got fructufied but for the fact that the High Court of Karnataka in the writ petition intervened and issued stay orders against such appointments. The question was whether after vacating such stay by the High Court when the writ petition was disposed of the selected candidates could be given appointments pursuant to the earlier rules or they could be told off the gates only because as per the new amended rules they being the 12 CWP No.5534 of 2008 (O&M) diploma-holders could not be held eligible to be appointed to such posts in the light of these peculiar facts of this case it was observed by this court that the amended rules did not contain any provision enforcing the amended rules with retrospective effect and that the appointments which would have been made available to the selected candidates but for the interim relief granted by the High Court of Karnataka could not be denied to them. We fail to appreciate how the said decision can advance the case of the respondent writ petitioner when no such occasion arose in the history of this litigation wherein the respondent writ petitioner never got selected for the said post under the old rules, nor was his appointment intercepted by any stay order of the Court. Save and except inviting applications as per the earlier advertisement no further step in connection with his recruitment was ever undertaken by the Public Service Commission. Hence, no right accrued to him, save and except, for being considered for such selection if earlier advertisement had survived. In fact Shri Ganpule, learned senior counsel for the respondent writ petitioner fairly stated that it is not his case that the respondent had any right to be appointed to the said post. His claim was only to be considered for being selected for the said post. 13 CWP No.5534 of 2008 (O&M) As we have seen earlier, once the earlier advertised posts ceased to exist under the Service Rules there remained no occasion for considering writ petitioner's claim for being considered for appointment to such a non-existing post. Our attention was also invited to a decision of this Court in the case of B. L. Gupta v. M.C.D. (Civil Appeal No. 6114 of 1997 etc.) decided on 5th September, 1997 (reported in 1998 SCC (L and S) 532). In the said decision the question of promotion to the post of Assistant Accountant from the feeder post of Senior Clerk with three years' experience and the other feeder post of Junior Clerk with eight years' experience was on the anvil of scrutiny. For the earlier vacancies of the Assistant Accountants the earlier rules of recruitment were held applicable and for new vacancies the amended rules of 1995 had to be applied. For coming to the said conclusion this Court relied upon some of the earlier decisions of this Court to which we have made a reference earlier. We fail to appreciate how this decision also can advance the case of the respondent writ petitioner. The post of Assistant Accountant was a promotional post which did not cease to exist in the hierarchy of the service echelon with which this Court was concerned. Hence the ratio of the decision of this Court in Civil Appeal No. 6114 14 CWP No.5534 of 2008 (O&M) of 1997 also cannot be of any assistance to respondent writ petitioner. On the contrary a three Judge Bench judgment of this Court in the case of Jai Singh Dalal v. State of Haryana, 1993 Supp (2) SCC 600 would squarely get attracted on the facts of the present case. A. M. Ahmadi, J. speaking for the three Judge Bench in para 7 of the Report relying on an earlier judgment of this Court in case of State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 : (AIR 1973 SC 2216) laid down that when the special process of recruitment had not been finalised and culminated into select list the candidate did not have any right to appointment. In this connection it was observed that the recruitment process could be stopped by the Government at any time before a candidate has been appointed. A candidate has no vested right to get the process completed and at the most the Government could be required to justify its action on the touchstone of Art. 14 of the Constitution. 16. In the facts of the present case it cannot even be suggested that the action of the State of Rajasthan was in any way arbitrary in intercepting the earlier recruitment process pursuant to the first advertisement dated 5th November, 1993 Annexure P-1 as the Rules 15 CWP No.5534 of 2008 (O&M) themselves had got amended and the posts earlier advertised had ceased to exist. 17. In the case of State of M.P. v. Raghuveer Singh Yadav (1994) 6 SCC 151 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 16 CWP No.5534 of 2008 (O&M) 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 and K Public Service Commission v. Dr. Narinder Mohan (1994) 2 SCC 630 : (1994 AIR SCW 1701) 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 5th November, 1993 Annexure P1 and nothing more. In our view, the aforesaid limited contention also, on the facts of the present case, cannot be of any assistance to the writ petitioner as the earlier selection process itself had become 17 CWP No.5534 of 2008 (O&M) infructuous and otios 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.” 12. In view of above, no ground is made out for quashing the promotions made or for direction sought for granting promotion according to unamended rules. However, in view of statement made on behalf of the Bank that an expert committee may be constituted to take care of stagnation beyond 20 years of service, we direct that such a committee may be constituted within three months from the date of receipt of a copy of this order and its recommendation may be considered by the Bank in accordance with law. (Adarsh Kumar Goel) Judge March 29 , 2010 (Alok Singh) ‘gs’ Judge 18