IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4301 of 2010 1. BIHAR RAIJYA BHOOMI SUDHAR KARAMCHARI SANGH,BIHAR THROUGH ITS GENERAL SECRETARY SHRI SURENDRA CHOUDHARY S/O LATE DEO NARAYAN CHOUDHARY BANK COLONY,CHITRA GUPTA NAGAR,KANKARBAGH,P.S.KANKARBAGH,DISTT-PATNA Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVT.OF BIHAR,PATNA 2. THE PRINCIPAL SECRETARY,REVENUE & LAND REFORMS DEPARTMENT GOVT.OF BIHAR,PATNA 3. THE DEPUTY SECRETARY,REVENUE & LAND REFORMS DEPARTMENT GOVT.OF BIHAR,PATNA For the Petitioner: Mr. Rajendra Prasad Singh, Sr. Adv. For the State : Mr. Mahesh Prasad, S.C.8 ----------- 2/ 28/10/2010 Heard learned counsel for the petitioner and for the State. The petitioner is stated to be a representative body of Revenue Karmcharis recruited through the Bihar Public Service Commission. It seeks the relief for its members to be considered for promotion to the post of Circle Inspector-cum-Kanoongo, the next promotional post, under the 50% quota reserved for the same as prescribed in the Bihar Junior Revenue Service Cadre Rule, 2004 (hereinafter referred to as the 2004 Rules). The remaining 50% posts under the 2004 Rules were required to be filled up by direct recruitment. The 2004 Rules have been amended on 15.1.2010 as published in the Bihar Gadget on 3.2.2010. The new Rules (hereinafter referred to as the 2010 Rules) reduced the quota for promotional vacancies from 50% to 25%. The question - 2 - canvassed before the Court for consideration is whether the 50% promotional quota vacancies prior to the amendment of the Rules in 2010 shall be amenable to the 2004 Rules or whether the new Rules limiting promotional vacancies to 25% shall be applicable. An additional question for consideration by the Court, directly relevant in the nature of the question framed above, shall be whether a selection process for promotion to the promotional vacancies can be held to have commenced prior to the promulgation of the amended Rules in the year-2010. Learned counsel for the petitioner referring to the 2004 Rules framed under Article-309 of the Constitution submitted that even prior to the promulgation of the 2004 Rules fixing 50% promotional quota administrative directions to the same effect existed. The promotional vacancies were to be filled after consideration by a Departmental Promotion Committee the constitution of which was provided for in Clause-Kha of the 2004 Rules in the column “procedures for recruitment, age limit and eligibility”. The 2004 Rules dealing with filling up of promotional vacancies provided for promotion by a departmental examination to be held and promotions to be then made according to the Roster. The selection process commenced on 18.8.2006 when the - 3 - Government in the Department of Revenue and Land Reforms addressed in writing all the District Magistrates to send details of persons in their respective offices eligible to be considered for promotion to the 50% promotional quota. Some responses were received, some were awaited for which a reminder was also sent on 21.3.2007/13.2.2008. While matters remained pending at this stage the Rules were amended reducing the promotional quota to 25% promotional vacancies only. It was therefore submitted that the process for filling up the promotional vacancies had commenced prior to the promulgation of the new 2010 Rules. The delay in completion of necessary formalities lay at the door of the respondents. If they did not complete the process of selection prior to the promulgation of the new 2010 Rules they cannot have the benefit of the same to deny consideration to the petitioner under the old 2004 Rules. Referring to Rule-1, Sub-clause-(3) of the 2010 Rules it was emphasized that it is prospective in nature only and cannot defeat accrued rights for consideration under the 2004 Rules. Explaining the words “commencement of the selection process” it was emphasized that it denotes a process commenced which culminates in a final action. Reliance was placed upon (1983) 3 SCC 285 - 4 - (STATE OF ANDHRA PRADESH AND OTHERS VERSUS SRINIWASA RAO AND OTHERS), 1990(1) SCC 411 (P. MAHENDRAN AND OTHERS VERSUS THE STATE OF KARNATAKA AND OTHERS), (1999) 1 SCC 544 (GOPAL KRUSHNA RATH VERSUS M.A.A. BAIG AND OTHERS, 2005(2) P.L.J.R. 642 (Bihar Statistical Service Association and Another Versus The State of Bihar & Ors). Reliance is further placed on (1997) 6 SCC 623 (CHAIRMAN, RAILWAY BOARD AND OTHERS Versus C.R. RANGADHAMAIAH AND OTHERS) and (2010) 7 SCC 560 MD. RAISUL ISLAM AND OTHERS VERSUS GOKUL MOHAN HAJARIKA AND OTHERS). The judgement in (2009) 12 SCC 62 (HIGH COURT OF DELHI AND ANOTHER Versus A.K. MAHAJAN AND OTHERS) relied upon by the respondents was sought to be distinguished as not being applicable on facts. It was urged that it was a case dealing with a retrospective amendment of the Rules which is not the case presently. Unlike the case therein, there was no controversy here with regard to non-inclusion of any eligible candidates in the 50% quota for promotional vacancies under the 2004 Rules. Lastly it was submitted that the judgement does not take note of the earlier judgement of the Supreme Court in the case of Sriniwasa Rao (supra). Both are by a Bench of two Hon’ble Judges - 5 - and, therefore, the former judgement still holds the field and the petitioner is therefore entitled to relief thereunder. Learned counsel for the State submitted that no process of selection had commenced, no list of persons eligible to be considered for promotion as directed on 18.8.2006 had been prepared. No examination as provided under the 2004 Rules had been held much less announced or any result published. There is no challenge by petitioner to any alleged invalidity of the 2010 Rules. The judgements relied upon are all distinguishable on their own facts in which the selection process had commenced under the unamended Rules. The judgement of the Supreme Court in A.K. Mahajan (supra) squarely applies to the facts of the present case. The Rules framed in 2004 under Article-309 of the Constitution of India provided for 50% of the posts of Circle Inspector-cum-Kanoongo were to be filled up by promotion from Revenue Karmcharis. The filling up of the promotional vacancies and the balance 50% by direct recruitment was to be monitored by a Committee to consist of the Commissioner-cum-Secretary/Secretary of the Revenue and Land Reforms Department. The conditions of eligibility and curriculum for examination are provided for in the Rules itself. For filling up the - 6 - promotional vacancies the Rules required a departmental examination to be held by the Revenue Department whereafter the eligible candidates were to be considered for promotion based on seniority-cum-merit in accordance with the reservation roster. There is no clause in the 2004 Rules that the vacancies were to be filled up annually or any timeframe within which promotional vacancies were to be filled up. The notification of vacancies annually was required in context of direct recruitment only. Quite obviously, promotional vacancies were to be considered for filling up as and when the vacancies may arise. There was no statutory time compulsions for filling promotional vacancies. In service matters relating to promotion it is vital that a person who has a perceived grievance with regard to promotion and seniority moves expeditiously for the protection of his own rights and interests. He cannot sit back without making a grievance and then subsequently belatedly urge that he has been prejudiced. This issue becomes more relevant when the persons concerned do not take steps to enforce their rights and permit intervening factors to develop changing the very substratum of the conditions for consideration. If the conditions for consideration change before he asserts his rights, to condone any delay on his part by putting the - 7 - clock back may amount to conferring a benefit upon him contrary to law unfair to those who may become eligible for consideration by reason of the change in law or Rules of the conditions for consideration. In other words, if the petitioner did not pursue his claims in time, allowed the Rules to be changed, and others shall be affected who stand to gain by the new Rules, if the old Rules are sought to be enforced today, that would not only be unjust, inequitable, but shall also be contrary to law. It has been noticed that prior to the promulgation of the 2004 Rules the promotional quota vacancies stood at 50% till the enforcement of the new Rules dated 3.2.2010. There is nothing on record placed by the petitioner of the steps, if any, taken by them to enforce their rights before coming into force of the new 2010 Rules. The petitioner claims to have represented for the purpose as late as 18.12.2009, obviously when they came to know of the 2010 Rules being forthcoming. By the communication dated 18.8.2006 no process for selection had commenced. The calling for information of eligible persons from different districts may at best, perhaps, euphemistically be described as “spade work”. Even that remained inconclusive when the petitioner itself acknowledges that the list never came to be compiled. If the 2004 Rules provided for a written - 8 - examination to be held, laid down the curricula for the same, the successful candidates were to be considered according to the reservation roster, unless these steps had not been completed, it cannot be said that the selection process had commenced. Had these procedures been over and the select list prepared with the formality of an appointment only remaining, the matter may have been entirely different. If no selection process had commenced and the Rules changed under Article-309 of the Constitution, and there is no challenge to the amended Rules, quite naturally, it is the amended Rules which shall govern the field now. Promotion is not a vested right. No person in Government employment has a vested right to be promoted or can claim an accrued right to be considered for promotion. He only has a right to be considered for promotion. The right to be considered for promotion may at best be described as a legal right and an inchoate right. Quite naturally, that also has to be enforced in time. There shall lie a distinction between a legal right and a vested or accrued right. A legal right may be subject to enforcement in accordance with law. The result being uncertain. An accrued or vested right is something which has attained finality under the law and to deny such a right shall tantamount to the taking away of a - 9 - benefit which has attained culmination or finality contrary to the law. In the case of Sriniwasa Rao (supra) relied upon by the petitioner, the facts noticed in paragraph-3 is crucial and forms the basis on which it is distinguishable from the facts of the present case. In that case, the panel was required to be prepared promptly in the month of September every year. Paragraph-9 of the judgement strongly relied upon by the petitioner itself emphasizes that fact to hold that vacancies which occurred prior to the amended Rules would be governed by the old Rules and not by the amended Rules. To this Court, the crucial issue on which that direction came to be given was that the Rules stood violated when the panel was not prepared in the September every year. It has already been noticed that in the present case there is no such requirement prescribed under the 2004 Rules. In the case of P Mahendran (supra) relied upon by the petitioner a notification was published inviting applications for recruitment of Motor Vehicles Inspector and a select list had been prepared. On receipt of applications the Commission had commenced the process of selection as it had scrutinized the applications and issued letters for interview to the respective candidates. The Commission commenced the interviews - 10 - in August, 1984 and it had almost completed the process of selection, but the selection could not be completed on account of interim orders issued by the High Court at the behest of aggrieved persons in pursuance of the amended Rules. It was held that the amended Rules were prospective in nature and could not take away or impair the rights of the candidates on the date of scrutiny by the Commission held to be qualified for selection and appointment. The Court has also noticed that in fact the entire selection process would have fructified and ended before the amendment of the Rules but for the interim order of the High Court. In this background it was held that “since the process of selection had commenced and it could not be completed because of the interim orders of the High Court, the appellant’s right to selection and appointment could not be defeated by subsequent amendment of the Rules”. In the present case, it has already been noticed above and held that no process of selection had commenced. In the case of Gopal Krushna Rath (supra), an advertisement for the purpose had been issued prescribing the qualification, interviews were held and the competent candidate selected which was challenged on the ground that the guidelines prescribed by the University Grants Commission for selection on the post of - 11 - Professor stood modified. It was noticed at paragraph-5 of the judgement that on the date of the advertisement and the last date for receipt of applications, no such directions for change had been issued by the University Grants Commission. The advertisement prescribed the qualification, the person appointed possessed the qualification. On the date that the Syndicate prepared the assessment chart the position was the same. Only thereafter the new guidelines took effect. In that context the Court held that where the selection process had actually commenced and the last date for inviting applications was over, any subsequent change in the requirements regarding qualification will not affect the process of selection. In the present case, it has already been noticed that even the process of compiling names of eligible persons to be considered for promotion had not been completed, much less had any date for examination been fixed or any examination held, mandatory for such promotion, much less any result published. In the case of Bihar Statistical Service Association (supra) the question was of a right to be considered for promotion in time. It was not a case where the claim was sought to be denied on basis of any statutory rules. The controversy arose in context of the - 12 - bifurcation of the State and allocation of cadres and posts. This case has no application to the present case. The reliance by the petitioners on the case of Md. Raisul Islam (supra) is also of no avail to them. In that case an advertisement had been published, a written test was conducted, the results were declared and the viva voce also held. At this stage, the Rules came to be amended. The Court framed the question at paragraph- 29 of the judgement as to whether the amended Rules governed seniority of persons recruited in the process of selection commenced earlier to the amendment. The Court noticed that the advertisement was published on 22.5.1984, written examination held between 5.6.1984 to 1.8.1985 and the results declared on 22.2.1986. Viva voce was held on 25.4.1986 to 30.5.1986. The list of recommended candidates was submitted on 22.6.1986. The Rules were amended on 21.7.1986. In the aforesaid background, the contention was that once the process had commenced under the unamended Rules, appointment would have to be completed thereunder. The Court noticed at paragraph-26 that where no process had been initiated for filling up of any vacancies, no candidate had been invited or interviewed or selected for appointment, matters would have been entirely different. In the aforesaid background it was held that the - 13 - vacancies would have to be filled under the unamended Rules. In the present case, this Court has already held in the discussion above that no such procedures and steps had been taken at all to hold that any selection process had commenced. In the case of C.R. Rangadhamaiya (supra) it is apparent from paragraph-25 of the judgement that the Court was concerned with pension benefits to the employees after their retirement who were no longer in service on the date of issuance of impugned notification. The amendments made were not prospective, but were sought to be applied to those who had retired and were no longer in service affecting their pensionary claims. The present is not a case dealing with pensionary rights. Pensionary rights are vested or accrued rights on the basis of which service conditions as they existed while the incumbent remained in service. If he retires, the Government cannot change the conditions of his service to his prejudice thereafter retrospectively as he has a vested or accrued right to his benefit in accordance with the Rules as they existed on the date of his superannuation. It has already been held that there is no fundamental right to promotion and the right to be considered for promotion does not constitute a vested or accrued right. - 14 - In the case of A.K. Mahajan (supra) the process for promotion had commenced and some candidates had also been interviewed. While matters were pending at this stage, representations were filed by others leading to a retrospective amendment of the Rules. In fact, one of the candidates interviewed had also been promoted and whose seniority stood to be disturbed by retrospective enforcement of the amended Rules. The challenge was similar that once the process of selection had commenced, the candidates had a vested and accrued right to be considered for promotion under the unamended Rules and therefore the amended Rules could not be applied retrospectively to a process already commenced as that would be arbitrary. The Supreme Court at paragraphs -21, 22 and 23 of the judgement lucidly considers the question:- “21. Now, we find no discussion in the whole judgment of the High Court as to what was the benefit which was available to the said employee. The High Court has observed that the benefit of consideration, which was available to Writ Petitioner prior to the retrospective amendment of the Rules, was not available to him after the amendment of the Rules. In our opinion, this is an incorrect notion. There can be no benefit of consideration. To be considered is a right of employee but merely being considered, in itself, is not a benefit as it may or may not result in the selection or promotion of an employee and hence it is in the nature of a chance. A mere chance of promotion being affected by amendment is in our opinion inconsequential. 22. This Court has time and again held - 15 - that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of the employer. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee. 23. In the present case, it is not as if Writ Petitioner concerned was altogether denied the benefit of consideration for ever. He was undoubtedly considered later on and was promoted also. Therefore, it is incorrect to say that the amendment had the effect of denying him the benefit of consideration, which was available to him. He did continue with that benefit and was actually benefited under the same. This is apart from the fact that the concept of consideration is an uncertain concept. One can understand a pension amount which is already decided or the promotion which is already granted or the seniority which is already conferred upon or the substantive appointment which is already made. If the amendment has the effect of denying this crystallized promotion, seniority or substantive appointment, then certainly the amendment could be held as arbitrary. But that has not happened in the present case. Here, no promotion was already granted or seniority already fixed, or any substantive appointment already made which were affected by the retrospective amendment. The observations in abovequoted para 24 of Rangadhamaiah case have to be understood in that sense.” In view of the aforesaid discussion, this Court is satisfied that there is no merit in this Application. The writ application is dismissed. KC ( Navin Sinha, J.)