HONOURABLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.19259 AND 19260 OF 1999 DATED 24TH FEBRUARY, 2010. BETWEEN Sri D.Kuppaiah ….Petitioners in both WPs an d The Registrar, S.V. University, Tirupathi, and anr. …Respondents in both WPs. HONOURABLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.19259 AND 19260 OF 1999. COMMON ORDER: As the petitioner and respondents are common in both these Writ Petitions they were heard together and are now being disposed of by a common order. In Writ Petition No. 19260 of 1999 the petitioner seeks a Writ of Mandamus to the respondents to promote him as an Assistant Engineer in the University Sciences Instrumentation Centre (USIC), Department of Physics in the S.V.U. College of Arts and Sciences, Tirupathi, w.e.f. 1.10.1996 by revising the order dated 18.5.1998 passed by the ﬁrst respondent and grant pay ﬁxation with consequential beneﬁts including pension. The petitioner also seeks a declaration that the promotion of the third respondent, against the vacant post of Assistant Engineer for the period from 27.3.1997 to 31.8.1997, instead of promoting him was arbitrary and illegal. The said Writ Petition was dismissed for default as against the third respondent by order of this Court dated 13.3.2003 (Endorsement of the Registry dated 13.8.2003). As such the relief sought for in the Writ Petition to the extent the petitioner had sought to declare appointment of the third respondent as an Assistant Engineer for the period from 27.3.1997 to 31.8.1997 as illegal and arbitrary must be denied. In Writ Petition No. 19259 of 1999, the petitioner seeks a Mandamus to the respondents to ﬁx his pay in the scale of pay of Rs.3640-7580 w.e.f. 18.5.1998 and for consequential arrears of pay by declaring the action of the respondents, in denying him pay ﬁxation on his promotion as an Assistant Engineer by proceedings dated 18.5. 1998, as arbitrary and illegal. Facts, in brief, are that the petitioner was appointed as an Operator (Workshop) in the respondent University in the year 1961. He was promoted as a Foreman/Mechanic in the year 1965 and was thereafter promoted as Master Craftsman in the year 1970 in the Department of USIC. In the year 1982, the petitioner was transferred along with his post to the Department of Physics. It is the petitioner’s case that the post of Assistant Engineer in the Department of USIC fell vacant on 1.10.1996 consequent on the retirement of Sri Y.V.Subba Rao on 30.9.1996; and though the post of Assistant Engineer in the Department of USIC was vacant from 1.10.1996 onwards he was denied promotion from that date and was promoted as an Assistant Engineer vide Proceedings dated 18.5.1998, thirteen days prior to his retirement on 31.5.1998. It is his grievance that, though he was promoted as an Assistant Engineer on 18.5.1998, he was asked to continue in the scale of pay of Master Craftsman till he retired on 31.5.1998. In the counter aﬃdavit ﬁled on behalf of the respondent-University, reference is made to the representation of the petitioner dated 19.3.1998 wherein he requested the respondent-University to consider his case sympathetically for the post of Assistant Engineer as a special case. He had stated therein that there was no ﬁnancial commitment on the part of the University for giving him promotion as he may remain in service at the most for two months. The petitioner submitted another representation dated 23.4.1998 wherein he requested the respondent-University to elevate him as an Assistant Engineer and upgrade the post held by him, as Assistant Engineer as purely personal to him without any monetary beneﬁt (Promotion increment and FR 22 beneﬁt), giving him the pleasure of retiring in a higher designation as he was due to retire on 31.5.1998. The petitioner stated that he would not claim any monetary beneﬁt after his retirement. He requested the respondent-University to consider his case at the earliest as he had only one month service left to retire. It is the case of the respondent-University that they took a sympathetic view of the matter; they had merely designated him as an Assistant Engineer to enable him to retire from service with such designation; he was not promoted as an Assistant Engineer; and as the petitioner himself agreed for such designation without monetary beneﬁt, it was not open to him to now ﬁle a Writ Petition claiming the benefit of the scale of pay of an Assistant Engineer. Sri Krishna Devan, Learned Counsel for the petitioner, would contend that, since Sri Y.V.Subba Rao had retired from service on 30.9.1996, a vacancy had arisen in the post of Assistant Engineer on 1.10.1996; the petitioner being the senior most Master Craftsman was entitled to be promoted straightaway in the said vacancy; what ever may have been the representations submitted by the petitioner, he had a fundamental right to be paid the scale of pay applicable to the post to which he was promoted; and he could not waive his fundamental right to the pay applicable to the post of Assistant Engineer. Learned Counsel would rely on the judgment of the Supreme Court in “Smt P.Grover Vs. State of Haryana; 1983(3) SLR 473” in this regard. Sri K. Jaganmohan Reddy, Learned Standing Counsel for the respondent-University, would submit that the post of Assistant Engineer in the Department of USIC could not be ﬁlled up from 1.10.1996 as the cadre rules had not been framed by then; the cadre rules were eventually approved on 30.3.1998; it is only thereafter that the vacancy could have been ﬁlled up in accordance with the Rules; Sri V.Krishna Reddy was never promoted to the post of Assistant Engineer; he was only continued a as Master Craftsman and was merely shown against the vacancy of Assistant Engineer; Sri V.Krishna Reddy continued to draw the salary applicable to the post of Master Craftsman even during the period he was shown against the vacancy of Assistant Engineer; the petitioner was not promoted to the post of Assistant Engineer but merely designated as such on his repeated requests; and the sympathetic act of the University cannot result in its being mulcted with the ﬁnancial liability of arrears of pay in the post of an Assistant Engineer more so when the petitioner had sought for such designation on the promise that he would never claim the pay scales applicable to the said post. With regards the petitioner’s claim for promotion with retrospective effect from 1.10.1996, it is well settled that merely because a vacancy exists in a sanctioned post that does not, by itself, confer any right on an employee to claim that the post should be ﬁlled up as soon as it falls vacant. It is open to the authorities concerned to keep the post vacant and ﬁll it up as and when they choose. It is only when the post is being ﬁlled up that an eligible employee has the right to be considered for appointment/promotion to the said post. (See. Union of India Vs. M. Jangamaiah; AIR 1977 SC 797). As such, the relief sought for in Writ Petition No. 19260 of 1999 cannot be granted and it is accordingly dismissed. With regards the petitioner’s claim for arrears of pay in the post of Assistant Engineer with eﬀect from 18.5.1998, the curious acts of misplaced benevolence of the University authorities must be taken note of. The respondent-University promoted Sri V.Krishna Reddy, Foreman, Department of Physics vide proceedings dated 27.3.1997 as a Master Craftsman; retained him in the same department showing him against the vacant post of Assistant Engineer, USIC, as a special case. The proceedings dated 27.3.1997 make it clear that Sri V.Krishna Reddy would continue to draw the existing salary till his pay was ﬁxed in the promotional post. Though Sri V.Krishna Reddy was shown against the vacant post of Assistant Engineer, USIC, he was not extended the pay scale applicable to the said post. The respondent-University continued its benevolence even thereafter and, on the basis of the petitioner’s representations dated 19.3.1998 and 23.4.1998 wherein he expressed his desire for re-designation as an Assistant Engineer without any ﬁnancial liability on the respondent-University and without any monetary beneﬁts, the University thought it ﬁt to designate him as an Assistant Engineer, in complete disregard of the applicable Rules. The University is governed by Rules and Statues and could not have acted like a benevolent monarch showering its muniﬁcence in individual cases. Having been the beneﬁciary of one such misplaced benevolent act of the University, the petitioner now contends that he has the fundamental right for payment of the pay scale applicable to the post of Assistant Engineer as he was designated as such on 18.5.1998; and the fundamental rights under Articles 14 and 16 of the Constitution of India cannot be waived. In Smt. P. Grover , the Supreme Court noted that the appellant theren was promoted to the post of District Educational Oﬃcer on acting basis; attention of the Court was not drawn to any rule which provided that promotion on acting basis would not entitle the promoted oﬃcer to the pay applicable to the said post; and in the absence of any rule justifying such refusal to pay to an oﬃcer promoted to a higher post the salary of such higher post, the appellant would be entitled to be paid the salary applicable to the post of District Educational Officer from the date she was promoted. In the case on hand, the respondent-University has acted on the representations submitted by the petitioner and has designated him as an Assistant Engineer. No employee has a fundamental right to claim that he should automatically be promoted as soon as a vacancy arises; the fundamental right under Article 16 of the Constitution of India is only that an employee is entitled to be considered for promotion in accordance with the Rules in force. No rule, which requires designation of the petitioner as an Assistant Engineer to be treated as promotion, has been brought to the notice of this Court. It is not even the case of the petitioner that he was promoted to the post of Assistant Engineer in accordance with the Rules. The order of promotion dated 18.5.1998 merely records that the petitioner was designated as an Assistant Engineer; he would continue to draw the existing emoluments in the same scale of pay even after he was designated as an Assistant Engineer till the date of his retirement on 31.5.1998; and he was also not entitled to claim any monetary beneﬁt even after his retirement. The said order dated 18.5.1998 refers to the petitioner’s representations dated 19.3.1998 and 23.4.1998 and to the Vice Chancellor’s order dated 15.5.1998. Neither does the aﬃdavit ﬁled in support of the Writ Petition refer to any Rule governing promotion to the post of Assistant Engineer; nor has Sri Krishna Devan, learned Counsel for the petitioner, drawn the attention of this Court to any such Rule. As noted hereinabove, the petitioner submitted representations requesting that he be appointed as an Assistant Engineer without any monetary beneﬁt in view of his impending retirement. Though it was not under any statutory obligation to promote/designate the petitioner as an Assistant Engineer, the respondent-University, acting as a benevolent despot, has chosen to designate him as an Assistant Engineer thirteen days prior to his retirement, after accepting his undertaking that he would not claim any monetary beneﬁt. The action of the respondent-University in designating the petitioner as an Assistant Engineer does not appear to be in accordance with law. Such proceedings would not confer on the petitioner any right to claim that he is entitled for the pay scales of an Assistant Engineer merely because he was designated as such. The petitioner is, therefore, not entitled to the relief of being extended the pay scales of an Assistant Engineer. This Court cannot turn a blind eye to the arbitrary acts of the respondent-University in conferring privileges on a select few dehors the applicable rules/statutes. The respondent-University would do well to ensure that such illegal acts are not repeated and that promotion to diﬀerent categories of posts are eﬀected strictly in accordance with law. Writ Petition No.19259 of 1999 also fails and is, accordingly, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. ------------------------------------------------------- JUSTICE RAMESH RANGANATHAN DATED 24T H FEBRUARY, 2010. Msnr.