State Of U.P.& Ors vs Mahesh Narain Etc

3. The aforesaid two writ petitions were filed by the appellant/State of U.P. represented by the Department of Forensic Science and the Department of Home assailing the judgment and order of the State Public Services Tribunal, Lucknow (for short ‘the Tribunal’) and seeking a writ in the nature of certiorari for quashing the judgment and order dated 10.4.2007 passed by the Tribunal whereby the Tribunal was pleased to direct the State of U.P. to consider the case of the respondents for promotion on the post of Assistant Director and grant them all consequential benefits if found suitable. The High Court vide its impugned judgment and order dated 5.9.2007 was pleased to dismiss both the writ petitions preferred by the State of U.P. after recording a finding that the Rules of U.P. Forensic Science Laboratories Technical Officers’ Service (First Amendment) Rules 1990 dated 15.9.1990 which were published in the U.P. Government Gazette on 20.10.1990 will be deemed to be enforced from the date when they were duly published in the U.P. Government Gazette and not from the date when the rules were prepared and passed by the Government. As a consequence of this finding, it was held by the High Court as also the Tribunal that the Respondent/claimant-officials were duly eligible and qualified for consideration of their claim for promotion on the posts of Assistant Director Forensic Science as they had acquired the requisite years of experience for promotion by the time the rules were published in the gazette.

4. The facts of the case insofar as it is relevant for determining the controversy between the contesting parties indicate that the respondent No. 1 was initially appointed as Junior Chemical Assistant in the Forensic Science Laboratory in the year 1968. The nomenclature of the said post of Junior Chemical Assistant was subsequently changed to Scientific Assistant. The respondent No.1 was promoted to the post of Senior Chemical Assistant in the year 1973 and was further promoted as Scientific Officer on 16.9.1985 and in compliance of the promotion order he joined on the said post on 20.9.1985. The said promotion order was issued with a condition that the order of promotion would be effective for a period of one year or until the service rules were published. The State Government thereafter published the U.P. Forensic Science Laboratories Technical Officers Service Rules 1987 (Shortly referred to as the Rules). Rule 5 of the said rules laid down that 75% posts would be filled through direct recruitment and the remaining 25% posts would be filled by promotion from amongst the permanent scientific officers having 5 years of experience. Besides this, the proviso to the said rule 5 laid down that where permanent scientific officers are not available, such temporary and officiating personnel may also be considered for promotion to the said post as may be permanent on the next lower post. There were 15 posts of Assistant Directors in the Department which were sanctioned by the State when the Rules of 1987 came into force. Rules of 1987 were subsequently amended by U.P. Forensic Science Laboratories Technical Officers Service (First Amendment) Rules 1990 which was published in the U.P. Government Gazette dated 20.10.1990. In the meantime, the Respondents had already acquired 5 years of experience on the next lower post due to which they had become eligible for promotion to the post of Assistant Director Forensic Science.

6. The department Forensic Science of U.P. felt aggrieved by the order of the tribunal and hence filed two writ petitions which were dismissed by the High Court vide the impugned judgment and order dated 5.9.2007 recording a finding that the U.P. Forensic Science Laboratories Technical Officers Service (First Amendment) Rules 1990 dated 15.9.1990 were published in the U.P. Government Gazette on 20.10.1990 and they will be deemed to be enforced from the date when they were duly published in the U.P. Government Gazette and not from the date when the rules were prepared by the State Government as a result of which the Respondents were eligible to be considered for promotion as they had the requisite experience.

10. We however have no hesitation in holding that this contention is fit to be rejected outright as the rules cannot be held to be made effective from the date of its preparation but will attain legal sanctity and hence capable of enforcement only when the rules are made effective and the date on which it is to be made effective would obviously be the date when the rules are published vide the gazette notification. In that view of the matter, we find no infirmity in the Respondents plea that they possessed the requisite experience of five years on the post of Scientific Officer as they had already put in five years of service from the publication of the amended Rules of 1990 and, therefore, they were rightly held eligible for consideration of promotion to the next post of Assistant Director. We are thus pleased to approve and uphold the view taken by the High Court on this count.

16. We thus, find no substance in these appeals filed by the appellant/State of U.P. and consequently dismiss them but in the circumstances without any order as to costs.