IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8981 of 2010 1. Devendra Singh S/O Late Rasdeep Singh R/O Vill Narkatia, P.S.Mejarganj, Distt-Sitamarhi 2. Shashi Sekhar S/O Late Niranjan Prasad R/O Moh Mitra Mandel Colony, Sector-D, Anishabad, P.S.Gardanibagh, Distt- Patna Versus 1. The State Of Bihar Through The Principal Secretary,Department Of Personnel And Administrative Reforms Government Of Bihar, Patna 2. The Principal Secretary, Department Of Personnel And Adminstrative Reforms Government Of Bihar, Patna 3. The Director, Department Of Tourism Government Of Bihar, Patna ---------------------------------- 3. 18.10.2011 Heard learned Counsel for the petitioners and the State. The two petitioners hold the post of Typist-Clerk and Receptionist respectively in the Tourism Department of the State Government. They are desirous to be considered for the next promotional post of Assistant Tourism Information Officer. The grievance primarily lies in the subsequent introduction of the condition that only Graduates were so eligible to be considered for promotion by the office order dated 9.8.2002 affecting their promotional prospects. Learned Counsel for the petitioners submits that Finance Department Resolution No. 660 dated 8.2.1999 under Clause 12 (ii) provides for identification of need based posts of Assistant Tourism Information Officer. Based on the availability of such posts, persons like the petitioners were required to be considered for promotion in accordance with their seniority in their substantive post. The new criteria of graduation introduced subsequently is arbitrary and adversely affects their chances to be considered for promotion. It virtually denies that right as they are not graduates. 2 It is next submitted that the same resolution also directed the State Tourism Department to grant parity in pay scale on the post of Assistant Tourism Information Officer in the pay scale of Rs. 5000 – 8000/- as being granted by the Government of India and make necessary amendment for the purpose in the Appointment Rules. The resolution dated 8.2.1999 did not authorize the State Department of Tourism to introduce any additional condition of Graduate qualification by executive order dated 9.8.2002 for such promotion. No such condition has been prescribed by the Government of India for the same post. Notwithstanding the instruction dated 9.8.2002 the respondents have granted promotion on the post of Assistant Tourism Information Officer in the scale of Rs. 5000 – 8000/- on 8.10.2003 from the post of Receptionist. The petitioners thus still have a right to be considered. Counsel for the State submitted from the counter affidavit that the persons named in the order dated 8.10.2003 held the qualification of Graduation except for one Sri Vijay Singh who has subsequently been allocated the State of Jharkhand consequent to the reorganization of the State. The executive instruction dated 9.8.2002 is fully competent when it introduces qualification of graduation as an additional condition in addition to identification of need based posts. The petitioners have only a right to be considered for promotion in accordance with the Rules as they may exist on the date of such consideration. The petitioners have only a right to be considered for promotion. They have no vested right to claim such consideration under any particular rules or conditions. The consideration necessarily has to be on the basis of Rules as they exist on the date that the consideration takes place. There is no vested right to promotion.The 3 right to be considered is an inchoate right which may or may not fructify. Considering a similar claim the Supreme Court in (2011) 6 SCC 725 (Deepak Agarwal vs. State of Uttar Pradesh) has held as follows:- : “26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the “rule in force” on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment.” The criteria for promotion from the post of Typist-Clerk/ Receptionist is for the employing department, i.e. Department of Tourism to decide and not for the Finance Department to decide. The latter has jurisdiction over the issue of pay scale only. The Court finds it difficult to uphold the submission that merely because a financial decision may have been taken to grant the scale of Rs. 5000 – 8000/- as applicable to Assistant Tourism Information Officer in the Central Government to those in the State service, shall necessarily include the right to be considered for such promotion without the condition for Graduation merely because the Central Government may not have prescribed such condition. The amendment to the appointment rules fixing the pay scale is one aspect of the matter. The amendment to the appointment rules fixing criteria of graduation and eight years of 4 service in the substantive post in respect of 50% of the posts reserved for the promotional quota is an entirely different matter. In absence of any statutory Rules to the contrary brought to the attention of the Court the Department of Tourism is fully competent to issue executive instructions laying down criteria for such promotion by incorporation of the condition for the candidate being a Graduate. The Court does not find substance in the contention of the petitioners that the executive instruction dated 9.8.2002 draws sustenance from the Finance Department Resolution no. 660 and that the latter does not vest power to incorporate conditions for promotion. It has already been discussed that the Finance Department may fix the pay scale at par with the central government but the criteria for promotion are the privilege of the Tourism Department. If the persons promoted by order dated 8.10.2003 are Graduates except for one of them who has gone to the State of Jharkhand and the Court finds no infirmity in the criteria for promotion fixed by order dated 9.8.2002 the petitioner cannot have any legitimate grievance. In so far as the singular person is concerned he is not a party respondent in the writ application. The Court on consideration of the matter in its entirety does not find that the writ petition has been able to convincingly demonstrate that the incorporation of the additional condition to be a Graduate for such promotion has been successfully asserted by the petitioners. The Court finds no merit in this application. It is accordingly dismissed. Snkumar/- (Navin Sinha,J.) 5