IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6808 of 2010 1. Paras Nath Mishra S/O Late Shiv Narayan Mishra Raghunath Puri, P.S.- Sitamarhi, Distt.- Sitamarhi- 843302 2. Binay Kumar Singh S/O Shri Babulal Singh R/O Vill.- Badarkha, P.O. Makwa (Asarganj), P.S.- Asarganj, Distt.- Munger, Present Address: C/O Shri Vijay Kumar Singh, Road No.3, Quarter No. C/37, Gardanibagh, Distt. Town- Patna 3. Rakesh Kumar Sinha S/O Late Shankar Prasad West Of Akhara, Mohalla- Gabhtal, P.S.- Danapur, Danapur Cantt., Patna- 801503 4. Ravindra Kumar Jayswal S/O Late Dhirendra Prasad Jayswal D.V.C. Road, Yarpur-204, Gupta Complex, P.S.- Gardanibagh, Patna- 800001 Versus 1. The State Of Bihar Through The Secretary To Government Road Construction Department, Veshaswaraya Bhavan, Patna 2. The Chief Engineer, Central Design Organization Road Construction Department, C.D.O. Building, Bailey Road, Patna 3. The Joint Secretary To Govt. Road Construction Department, Bihar, Vesheswariya Bhavan, Patna 4. The Deputy Secretary To Govt. Null Road Construction Department, Bihar (Management Cell), Vesharwarya Bhavan, Patna 5. The Bihar Public Commission Through Its Chairman Bailey Road, Patna ----------- For the State:- Mr. Atul Bihari Pandey, Adv. For the B.P.S.C.:- Mr. Nilu Agrawal, Adv. ------------- 3. 19.09.2011 Heard learned counsel for the petitioners, the State and the Bihar Public Service Commission (hereinafter referred to as the „Commission‟). The petitioners are aggrieved by the non consideration of their case for promotion by virtue of the promulgation of the Bihar Technical Service Appointment/Promotion and Service Conditions Rules (hereinafter referred to as the „Technical Rules‟) in exercise of powers under Article 309 of the Constitution on 8.11.1999. The petitioners are stated to be Assistant 2 Research Officers in the Road Construction Division desirous to be considered for the post of Assistant Director against the promotional quota meant for the post. Learned counsel submits that the educational qualification required for their posts was Graduate in Science. They were possessed of the qualification and came to be appointed in 1981. They became eligible to be considered for the post of Assistant Director by promotion in 1989. Before they could be considered for promotion the Technical Rules came to be promulgated in 1999. While the petitioners are science graduate with Maths and Biology, under the new Rules, the candidate had to be Graduate in Science with a combination of Physics, Chemistry and Mathematics. The Technical Rules are prospective in their operation from 8.11.1999 and cannot affect accrued or vested rights to be considered for promotion of the petitioners in 1989. As per the gradation list published in 2001 and in 2008 they are eligible to be considered for promotion to the post of Assistant Director. Reliance has been placed on a Bench decision reported in (2005)2 PLJR 520 ( Jadav Lal Sah Vs. State of Bihar & Ors.) and A.I.R. 1968 SC 3 353 (Jagdish Pandey Vs. The Chancellor). The respondents in their counter affidavit have emphasized the change in the Rules necessitating different educational qualification as eligibility rendering the petitioners ineligible to be considered for promotion. The only issue for consideration by the Court is whether the petitioners have a vested right to claim promotion or consideration for promotion in accordance with the Rules that may have existed in 1989 or will their eligibility be governed by the Technical Rule after 8.11.1999. There is no material on record what efforts if any were made by the petitioners from their date of eligibility in 1989 till the promulgation of the Technical Rules on 8.11.1999, to pursue their claim for promotion and/or to be considered for promotion. If they were not vigilant for the enforcement of their rights in time and allowed the situation to change to their disadvantage, the Court finds it difficult to hold that they have an accrued or vested right to be considered for promotion in accordance with the eligibility as it may have existed in 1989. The petitioners have no vested right to promotion but only a right to be considered for promotion. If on the 4 date that the consideration accrues or they demand consideration, the Rules have changed, the consideration shall have to be in accordance with the amended Rules. In (2009) 12 SCC 62 (High Court of Delhi Vs. A. K. Mahajan & Ors.), the process of selection for promotion had commenced and some candidates interviewed. Representations were made that the existing Rules were prejudicial to certain category of employees not giving them an equal platform to compete leading to amendment of the Rules retrospectively. The Supreme Court held as follows:- “20. We must observe that the said para 24 of Rangadhamaiah case is being interpreted in an erroneous way. Its clear language suggests that where the amendment, having retrospective operation, which has the effect of taking away a benefit already available to the employee, then such a provision is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution of India. 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 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 5 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 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.” Similar view has been taken in (2011) 6 SCC 725.(Deepak Agrawal vs. State of U.P.):- “2. The old vacancies have to be filled under the old rules is the mantra sought to be invoked by the appellants in support of their claim that the vacancies arising prior to 17-5-1999, ought to be filled under the 1983 Rules as they existed prior to the amendment dated 17-5-1999.; 6. In spite of the representations made by the appellants, the 1983 Rules were amended on 17-5-1999. By the aforesaid amendment, the posts of Technical Officers and Statistical Officers have been excluded from the feeder cadre for promotion to the post of Deputy Excise Commissioner. This amendment came just two days before the DPC was scheduled to meet on 19-5-1999. As a consequence of the amendment, the DPC did not consider the appellants for promotion. The justification given for the aforesaid amendment is that the State Government had taken a “conscious decision” to exclude the Technical Officers and Statistical Officers as they were not fit for the post of Deputy Excise Commissioner because of their peculiar qualifications, duties, responsibilities 6 and work experience. However, to compensate for loss of promotion, the pay scale of these two posts has been upgraded to the level of Deputy Excise Commissioner.; 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 reliance by the petitioners on the case of Yadav Lal Sah (supra) is not wholly appropriate as in that case the consideration was done and recommendations made prior to the amendment of the Rules, but which were not given effect to when the Rules were allowed to change leading to the petitioners seeking a mandamus for enforcement of the recommendation made prior to the amendment of the Rules. In the case of Jagdish Pandey (supra) reliance has been placed at Paragraph-15 of the 7 judgment which deals with the right to be appointed and confirmed on a post prior to a date by a fiction even though they may not actually possess the qualification. The case is distinguishable on its own facts and has no application to the present controversy. The Court finds it difficult to issue any mandamus for consideration of the case of the petitioners for promotion based on the Rules as it may have existed in 1989 ignoring the introduction of the Technical Rules in 1999. The petitioners shall have to bear the burden for their indolence in not pressing their claims before promulgation of the new rules. It may only be noticed that there is no challenge to the validity of the Technical Rules. There is no merit in this application. It is accordingly dismissed. P. Kumar ( Navin Sinha, J.)