THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR + W.A.No.1216 of 2006 %21-09-2011 #Andhra Pradesh State Warehousing Corporation, rep. by its Managing Director, Second Floor, Warehousing Sadan, Near Gandhi Bhavan, Nampally, Hyderabad. ….appellants. Vs. $ L. Nagender and others. …. Respondents !Counsel for the appellant: Sri C.V.Mohan Reddy, senior counsel for Sri M. Suresh Kumar Reddy, Standing Counsel for APSWC Counsel for Respondents: Sri K. Rama Subba Rao <Gist : >Head Note: ? Cases referred: [1] (1974) 1 SCC 19 2 2001(2) ALD 78 (DB) 3 (2009) 12 SCC 62 THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR W.A.No.1216 of 2006 JUDGMENT (Per Sri Justice Ghulam Mohammed) The respondents herein were appointed as Guard-cum- Peons in the appellant-A.P.State Warehousing Corporation during the period from 1989 to 1997 on different dates. Their next promotional post is Junior Assistant, for which, it is required to pass SSC. However, as per the amended provision made by the Corporation, a distinction was made that the employees, who were appointed on or after 29.10.1987, should pass Intermediate and prior to that date, should pass SSC in addition to five years of experience in their feeder cadre. Assailing the said provision, some of the employees filed W.P.No.26909 of 1999, wherein this Court passed an order on 03.08.2001 declaring that the said amendment is prospective and directed the respondents therein to consider the cases of the petitioners therein for promotion to the post of Junior Assistant based on their seniority. The respondents, who are similarly situated persons, filed W.P.No.4451 of 2005 seeking to declare the amendment made to the appendix-III of the Regulation-6 of the Regulations in respect of Junior Assistant in the year 1987, and given effect to in the year 1997 by letter dated 04.10.1997 altering the basic qualifications for being appointed as Junior Assistant, as illegal and arbitrary. Through order dated 14.06.2005, the learned single Judge of this Court directed the Corporation to consider the cases of the respondents treating the amendment as to the qualification prescribed as prospective on par with the petitioners in W.P.No.26909 of 1999 and also directed to consider their cases as and when the vacancies of Junior Assistant arise for consideration for filling up the same. Aggrieved by the same, the Corporation filed the present appeal. 2. Heard the learned Standing Counsel for the appellant- Corporation and Sri K. Rama Subba Rao, learned counsel for the respondents. 3. Learned Standing Counsel for the appellant Corporation contended that since the appointments of the respondents were made after 1987, they should pass Intermediate for promotion and that the learned single Judge erred in holding that the amendment is prospective. He further contended that the learned single Judge ought to have seen that the petitioners in W.P.No.26909 of 1999 were appointed prior to 29.10.1987 and their cases for promotion were considered as per the directions of this Court. He relied upon the decision of the Supreme Court in THE STATE OF JAMMU AND KASHMIR v. SHRI TRILOKI NATH KHOSA[1] wherein it was held as under: ‘If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have foundered on the rock of retroactivity. But such is not the implication of Service Rules nor is it their true description to say that because they affect existing employees they are retrospective. Learned Standing counsel further relied upon the decision of this Court in MOHD. HUSSAIN v. APSRTC, HYDERABAD[2] wherein it was held as under: “Having regard to the fact that the regulations framed in terms of Section 45 are a subordinate legislation, the same will only have a prospective effect. Having regard to the provision contained in Section 45 of the said Act, there cannot be any doubt that any amendment carried out in the Regulation shall have a prospective effect. It is further beyond any cavil of doubt that any amendment affecting a right of a party by reason of a subsequent amendment shall have no effect for the purpose of appointment or otherwise if thereby a vested right is affected’. He also relied upon the decision of the Supreme Court in HIGH COURT OF DELHI v. A.K.MAHAJAN[3] wherein it was held as under: “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 8 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. This Court has time and again held 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’. 4. Learned counsel for the respondents contended that the learned single Judge observed that the amended provision is only prospective because the vested and accrued rights of the respondents have to be taken into consideration for promotion and cannot be taken away as they are guaranteed under Article 16 of the Constitution of India. 5. The respondents herein were appointed on or after 29.10.1987. The amendment was given effect to in the year 1997 vide letter dated 04.10.1997, making the Intermediate as essential qualification for promotion to the post of Junior Assistant. In W.P.No.26909 of 1999 this Court held that the amended provisions are only prospective and as per the directions therein, the respondents have promoted the petitioners therein to the post of Junior Assistant. The respondents herein are similarly situated employees. However, it is brought to our notice that the Corporation has further amended the Regulation in the year 2003 insisting of Graduation for promotion to the post of Junior Assistant. However, the respondents’ right to be considered for promotion prior to the amendment, stood adversely affected by the impugned amendment, which was found to be prospective by the learned single Judge of this Court. Therefore, they are entitled to be considered for the post that arose prior to 2003 amendment. 6. In view of the above, we do not find any illegality or infirmity in the order impugned. Accordingly, the Writ Appeal is dismissed. No costs. ______________________ GHULAM MOHAMMED, J _________________ SANJAY KUMAR, J Date:21.09.2011 sj [1] (1974) 1 SCC 19 [2] 2001(2) ALD 78 (DB) [3] (2009) 12 SCC 62