Mohd. Nijamuddin & Others vs State Of ...
2021 Latest Caselaw 11113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Court No. - 7
 

 
Case :- SERVICE SINGLE No.29369 of 2016
 

 
Petitioner :- Mohd. Nijamuddin & Others
 
Respondent :- State Of U.P.Thru.Prin.Secy.Deptt. Of Home & Anr.
 
Counsel for Petitioner :- A.P. Singh,Amarendra Pratap Singh
 
Counsel for Respondent :- C.S.C.,Amit Bose
 

 
CONNECTED WITH
 
Case :- SERVICE SINGLE No.2397 of 2020
 
Petitioner :- Akhilesh Kumar Singh and Another
 
Respondent :- State Of U.P. Thru Prin.Secy. Home Lucknow And Ors.
 
Counsel for Petitioner :- I.M. Pandey Ist
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri A.P. Singh, learned Senior Advocate, assisted by Sri Amrendra Pratap Singh, learned counsel for the petitioners in leading writ petition as well as Sri I.M. Pandey, learned counsel for the petitioners in Service Single No.2397 of 2020, Sri Sharad, learned Standing Counsel for the State, Sri Amit Bose, learned Senior Advocate, assisted by Sri Abhishek Bose, learned counsel for the intervenor.

2. By means of first writ petition, only one prayer has been made, which is as under:-

"(a) issue a writ, order or direction in the nature of mandamus commanding the Opposite parties to fill up the vacancies in the cadre of Workshop hand occurring prior to promulgation of Uttar Pradesh Police Radio Subordinate Service (IInd amendment) Rules, 2016 in accordance with the provisions of Uttar Pradesh Police Radio Subordinate Service Rules, 2015."

3. By means of second writ petition, following prayers have been made:-

"1. Issue a writ, order or direction in the nature of ceriorari to quash order bearing no.W-43/2019 dated 22.11.2019 passed by the opposite party no.2 whereby the representation of the petitioners for promotion on the post of Workshop Hand under the 25% promotion quota as prescribed under Rule - 5(1)(a) read with rule 17 of U.P. Police Radio Subordinate Service Rules - 2015 as amended by U.P. Police Radio Subordinate Service (Ilnd Amendment) Rules 2016, has been rejected in wholly unlawful and arbitrary manner refusing to hold selection for promotion to the post of Work Shop Hand until final disposal of the Writ Petition No.29369(S/S) of 2016 or vacation of interim order dated 16.12.2016 and 25.5.2018 passed therein as contained in annexure no.1 to the writ petition.

2. Issue a writ, order or direction in the nature of Mandamus commanding the Opposite Parties to consider the Petitioners for promotion on the post of Workshop Hand under Rule - 5(1)(a) read with rule 17 of U.P. Police Radio Subordinate Service Rules - 2015 as amended by U.P. Police Radio Subordinate Service (Ilnd Amendment) Rules 2016, against the existing vacancies as shown in the chart of vacancies of the various posts of department as on 31.08.2019 contained in annexure no. 5 to the writ petition excluding the vacancies which had been ascertained prior to U.P. Police Radio Subordinate Service (Ilnd Amendment) Rules 2016 i.e. 19.10.2016 (the date of notification no.18/2016/2792/6-Pu-01-16-1300 (7)/ 1994 whereby the U.P. Police Radio Subordinate Service (IInd Amendment) Rules 2016 were notified) within a short reasonable period to be prescribed by this Hon'ble Court in the interest of Justice."

4. In both the writ petitions since the question of law to be adjudicated is one and same, therefore, with the consent of learned counsel for the parties I hereby dispose of both the writ petition by means of common order.

5. The question to be adjudicated in both the writ petitions is that as to whether the promotion on the post of Workshop Hand in Uttar Pradesh Police Radio Branch Headquarters, Lucknow (hereinafter referred to as "department in question") for the vacancies occurring prior to the year 2016 can be made on the basis of Uttar Pradesh Police Radio Subordinate Service (Second Amendment) Rules, 2016 or in view of the provisions of Uttar Pradesh Police Radio Subordinate Service Rules, 2015.

6. Ignoring the detailed facts of the issue in question, only those facts are being considered which are necessary to adjudicate the issue in question.

7. In both the writ petitions, the petitioners were initially appointed on the post of Messenger Peon/ Group 'D' post from the year 1989 to 1993. Later on, all the petitioners were confirmed on such post and have been allowed all service benefits admissible as per law e.g. selection grade, promotional pay scale, benefit of A.C.P. etc.

8. Notably, for the U.P. Police Radio Branch of the Police Force, the Governor of U.P. in exercise of powers vested in him under Section 15 of the U.P. Pradeshik Armed Constabulary Act, 1948 (hereinafter referred to as "the Act, 1948") promulgated the U.P. Police Radio Subordinate Service Rules, 1982 regulating the appointment and other conditions of service of the posts in the U.P. Police Radio Subordinate Service. According to Rule 4 of the aforesaid Rules, the cadre of the U.P. Police Radio Subordinate Service would comprise of the posts of Workshop Hand, Assistant Operator, Head Operator, Radio Station Officer, Radio Maintenance Officer and Radio Inspector in that hierarchy.

9. At the time when the aforesaid Rules were promulgated, according to the then existing provisions of Rule 5 (1) of the aforesaid Rules, the posts of Workshop Hands were to be filled up entirely by direct recruitment. Further, as per Rule 5 (2) of aforesaid Rules, the posts of Assistant Operators were to be filled upto the extent of 90% by direct recruitment and 10% by promotion from amongst such permanent Workshop Hands, who had qualified Grade-III Operators Course.

10. Subsequently, by means of notification dated 14.2.1998, the Governor of U.P. promulgated the U.P. Police Radio Subordinate Service (First Amendment) Rules, 1997 (hereinafter referred to as "Rules, 1997"), whereby Rule 5 (1) of the aforesaid Rules was substituted by a new rule which provides that the post of Workshop Hand would be filled up to the extent of 75% by direct recruitment and 25% by promotion from amongst such Group 'D' employees working in the U.P. Police Radio Branch, who had qualified the High School Examination conducted by the U.P. Board of High School and Intermediate or who had qualified the training course in the trade from a Government recognized Industrial Training Institute which would be useful for the work as a Workshop Hand in the department or any other course recognized as equivalent thereto and had put in five years of service as Group 'D' employee.

11. From the aforesaid Rules, as amended in the year 1997, it is apparent that as far as Group 'D' employees of the Radio Branch are concerned, for the first time in the year 1997 an avenue for promotion to the post of Workshop Hand was provided to the extent of 25% of the posts and the Group 'D' employees, who were eligible for promotion to the Workshop Hand were those who had qualified the High School Examination or those who had obtained Industrial Training Institute Certificate from any Government recognized Industrial Training Institute (hereinafter referred to as "I.T.I.") in a trade which would be useful for the work of Workshop Hand in the U.P. Police Radio Branch.

12. As far as direct recruitment to the posts of Workshop Hand was concerned, the educational qualification required was the same as that required for promotion, i.e., qualifying High School Examination or obtaining an I.T.I. certificate. Thus, it is apparent that for the post of Workshop Hand, an I.T.I. certificate in any trade was not an essential qualification for either direct recruitment or promotion.

13. On 28.9.2015, the Governor of U.P. in exercise of his power vested under the Act, 1948 promulgated the U.P. Police Radio Subordinate Service Rules, 2015 (hereinafter referred to as "Rules, 2015") superseding all the existing Rules thereby the qualification of I.T.I. or equivalent was made compulsory considering the nature and duties to be performed by the Workshop Hands as they deal with the technical equipments like wireless set etc.

14. On 19.10.2016, the Uttar Pradesh Police Radio Subordinate Service (Second Amendment) Rules, 2016 (hereinafter referred to as "Rules, 2016") were notified whereby and whereunder vide Rule 2 (a) (ii), high school passed group 'D' employees have been brought into the field of eligibility for promotion in the cadre of Workshop Hand or who had qualified the I.T.I. course. As a matter of fact, by means of Second Amendment in the Rules made in the year 2016, such qualification was revived which was there as per Rules 1982. The difference between Rules, 2015 and Rules, 2016 is that vide Rules, 2015, the qualification of having I.T.I. was mandatory with High School examination but by means of Rules, 2016, such qualification was one of the qualifications. In other words, vide Rules, 2015, the employee must have qualified High School Examination/ Intermediate Examination and must have possessed the I.T.I. course but vide Rules, 2016, the employee having qualified High School/ Intermediate Examination or the employee having qualified I.T.I. course is eligible.

15. In the first writ petition the impression was given to the Court to the effect that the Rules, 2016 were difference from Rules, 2015 but this fact has not been apprised that the Rules, 2016 are the same as of the Rules, 1982. Further, the candidate, who was eligible as per Rules, 2015, was also eligible as per Rules, 2016 inasmuch as in both the Rules one qualification, i.e. having qualified High School/ Intermediate Examination is common. So as to understand minutely the conditions of Rules, 2015 and Rules, 2016, a thin line difference is that Rules, 2015 used the term 'and' between two qualifications i.e. High School qualification and I.I.T. certificate whereas Rules, 2016 provide the term 'or' i.e. High School Examination or I.T.I. certificate. The candidates who were qualified as per Rules, 2015 may not be disqualified for the Rules, 2016, therefore, the grievance of such employees, the petitioners, is misconceived whereby they are saying that the conditions of Rules, 2016 are making prejudice to them.

16. On 28.11.2015, the department finalized inter-se seniority list of group 'D' for the purposes of promotion in the cadre of Workshop Hand from amongst permanent group 'D' employees.

17. On 2.5.2016, the department sent a requisition to the Uttar Pradesh Police Services Recruitment and Promotion Board, Lucknow (hereinafter referred to as "the Board") for filling up the vacancies in the cadre of Workshop Hand occurring in the department. On 16.5.2016, eight vacancies for promotion has been notified apprising to the Board for taking appropriate steps.

18. However, Sri Amit Bose, learned counsel for the intervener has submitted that by Rule 2 of the Rules, 2016, Rule 5 (a) (ii) of the Rules, 2015 has been substituted by the amending provisions. The effect of substitution of the earlier rule by the subsequent rule is that the old rule is replaced and the new rule is enacted with the result that it has to be treated that the substituted rule was always in existence as against the old rule, which is obliterated from the statute book.

19. Sri Bose has further submitted that in view of the aforesaid principle of law, once Rule 5 (a) (ii) of the Rules, 2015 was substituted by new Rule, it has to be treated that new law was in force right from the inception. In view of the above, the entire argument of the learned counsel for the petitioners that the vacancies of the post of Workshop Hand said to have occurred while the original Rule 5 (a) (ii) of the Rules, 2015 was in force have to be filled up as per said rule and not on the basis of substituted rule as inserted under the Rules, 2016 losses all significance and does not deserve any consideration.

20. However, Sri A.P. Singh, learned Senior Advocate, has submitted that since the vacancies in question were prior to the year 2016, therefore, such vacancies should be filled up through old rules i.e. Rules, 2015 inasmuch as the rule of game cannot be changed during the stage of selection process.

21. Sri A.P. Singh has placed reliance upon the judgment of the Hon'ble Apex Court in re; Md. Raisul Islam & Ors. v. Gokul Mohan Hazarika & Ors., JT 2010 (6) SC 632, by submitting that the Hon'ble Apex Court has been pleased to hold that once the process of selection had started under the prevalent Rules, it cannot take a stand that the said selection could be completed in terms of Amended Rules.

22. Sri Singh has also cited the dictum of the Full Bench of this Court in re; Santosh Kumar Singh v. State of U.P. and others, [2015 (7) ADJ 179 (FB)], by submitting that the vacancies in question should be filled up pursuant to the advertisement and the prevalent Rules at that point of time. In support of his aforesaid submission, he has also cited some more dictums of the Hon'ble Apex Court in re; Gaurav Pradhan & Ors. v. State of Rajasthan & Ors, JT 2017 (9) SC 501, Assam Public Service Commission v. Pranjal Kumar Sarma, (2019) 17 SCALE 542, Ramjit Singh Kardam v. Sanjeev Kumar, AIR 2020 SC 2060, Rashmi Ranjan Nayak v. Union of India & others, 2015 SCC OnLine Ori 300, and Union of India & Others v. Krishna Kumar, (2019) 4 SCC 319.

23. Sri Amit Bose, learned Senior Advocate, as well as learned Standing Counsel has reiterated that after the amendment in Rules, 2016 regarding the qualification for the post of Workshop Hand, such qualifications indicated under the Rules, 2015 have lost its efficacy and significance, therefore, the promotion in question should not be made on the basis of Rules, 2015.

24. Sri Bose has submitted that it is a settled principle of law that a candidate has a right to be considered for promotion on the basis of rules existing on the date of consideration and it is not an absolute proposition of law that old vacancies have to be filled up on the basis of old Rules (Unamended Rules). The principle of old vacancies to be filled up on the basis of old rules can only apply in case the candidates, who were eligible under the old Rules, were ousted for consideration as a result of the Amended Rules. In the instant case, the position is otherwise as under Rule 5 (a)(ii) of Rules, 2015 the candidate possessing only High School Examination without possessing I.T.I. certificate were totally ousted by use of the word 'and' between both the qualifications. On the other hand, as a result of substituted Rule 5 (a) (ii) of the Rules, 2016, Class-IV employees having qualification of High School and I.T.I. certificate would not be ousted from consideration zone but they continue to be eligible for said promotion. Therefore, Sri Bose has submitted that the dictum of the Hon'ble Apex Court in re; Deepak Agarwal and Another v. State of Uttar Pradesh and Others, (2011) 6 SCC 725 and Y. V. Rangaiah and Others v. J. Sreenivasa Rao and Others, (1983) 3 SCC 284, which categorically provide that old vacancies should be filled up as per old rules are distinguishable and would not apply in the present case inasmuch as the protection of the dictum of the Hon'ble Apex Court in re; Deepak Agarwal (supra) and Y. V. Rangaiah (supra) would be available to those candidates, who are being ousted on account of Amended Rules i.e. Rules, 2016.

25. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that any selection process initiated pursuant to the advertisement shall be finalized in terms of the existing rules to fill up the vacancies of direct recruitment but the same analogy would not be applied in case of promotion inasmuch as at the time of making promotion, it has to be seen as to what are the mandatory qualifications for the candidates. However, one relevant aspect has to be taken into consideration that as to whether such amendment in the qualification by amending the rules is precluding the candidates/employees, who were possessing the requisite qualification as per unamended rules or not. If the amended qualification is precluding those candidates, who were otherwise eligible as per unamended rules, may not be made sufferer.

26. The Hon'ble Apex Court in re; Y. V. Rangaiah (supra) has held that the vacancies in the promotional post occurring prior to the amendment have to be filled up in accordance with the unamended rules.

27. Thereafter, the Hon'ble Apex Court in re; Deepak Agarwal (supra) has held that it is the rules which are prevalent at the time when the consideration took place for promotion, which would be applicable. A candidate has the right to be considered in the light of existing rules, which implies '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.

28. The Hon'ble Apex Court in re; State of Tripura and others Vs. Nikhil Ranjan Chakraborty and others, (2017) 3 SCC 646, has held that a candidate only has right to be considered in the light of existing rules, namely, rules in force on the date on which consideration for promotion takes place and there is no rule of absolute application that vacancies must invariably be filled by law existing on the date when they arose. Paragraphs 8 & 9 of the aforesaid judgment are being reproduced herein below:-

"8. In Deepak Agarwal [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725 : (2011) 2 SCC (L&S) 175] the appellants were Technical Officers who along with Assistant Excise Commissioners were eligible to be considered for promotion to the post of Deputy Excise Commissioner. Two days before the DPC was scheduled to meet to consider the cases of all eligible officers for promotion, the Rules concerned were amended and Technical Officers stood excluded as the feeder post for the next promotional post of Deputy Excise Commissioner. The challenge to such exclusion having been negated [Deepak Agarwal v. State of U.P., 2002 SCC OnLine All 1279 : 2002 All LJ 1701] by the High Court, the matter reached this Court and the relevant paragraphs of the decision were: (Deepak Agarwal case [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725 : (2011) 2 SCC (L&S) 175] , SCC pp. 728 & 734-35, paras 2 & 23-26)

"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. The claim is based on the principle enunciated by this Court inY.V. Rangaiah v. J. Sreenivasa Rao [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] .

***

23. Could the right of the appellants, to be considered under the unamended 1983 Rules be taken away? The promotions to the 12 vacancies have been made on 26-5-1999 under the amended Rules. The High Court rejected [Deepak Agarwal v. State of U.P., 2002 SCC OnLine All 1279 : 2002 All LJ 1701] the submissions of the appellants that the controversy herein is squarely covered by the judgment of this Court in Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] . The High Court has relied on the judgment of this Court in K. Ramulu v. S. Suryaprakash Rao [K. Ramulu v. S. Suryaprakash Rao, (1997) 3 SCC 59 : 1997 SCC (L&S) 625] .

24. We are of the considered opinion that the judgment in Y.V. Rangaiah case [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the Rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amended Rules would be governed by the old Rules and not the amended Rules.

25. In the present case, there is no statutory duty cast upon the respondents to either prepare a yearwise panel of the eligible candidates or of the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable Rules. The requirement to identify the vacancies in a year or to take a decision as to how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to the candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr Rajeev Dhavan that the vacancies, which had arisen before 17-5-1999 had to be filled under the unamended Rules.

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 [Y.V. Rangaiah v.J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] 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."

9. The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, "rules in force on the date" the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in Deepak Agarwal [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725 : (2011) 2 SCC (L&S) 175] in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24-11-2011."

29. Recently, the Apex Court in two cases in re; Union of India and Others v. Krishna Kumar and Others, (2019) 4 SCC 319 and State of Orissa and Another v. Dhirendra Sundar Das and Others, (2019) 6 SCC 270, has held that the rights to be considered for promotion in accordance with the rules as they exist when the exercise is carried out for promotion. In both the aforesaid judgments, all relevant case laws on the subject have been considered.

30. I have also considered the relevant facts of the present case that in view of the qualification being prescribed under the Amended Rules, 2016 the candidates, who were qualified as per unamended Rules i.e. Rules, 2015, have not been ousted from zone of consideration. Therefore, case of the petitioners may not be said to have been prejudiced on account of Amended Rules, 2016, so their claim that they be considered for promotion strictly in terms of unamended Rules, 2015 is absolutely misconceived.

31. When the petitioners are not being ousted on account of Amended Rules, 2016 so far as it prescribes qualification to be promoted on the post of Workshop Hand, then for all other purposes making promotion from Class-IV to Workshop Hand, the provisions of Rules, 2016 shall be taken into account inasmuch as after the amendment in the Rules, 2015 regarding qualification by means of Rules, 2016, such prescription by unamended Rules shall loose all significance and does not deserve any consideration.

32. The Hon'ble Apex Court in re; Zile Singh v. State of Haryana and Others, (2004) 8 SCC 1, has held in para-25 as under:-

"25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (see Principles of Statutory Interpretation, ibid., p. 565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn.v.State of U.P.[(2002) 2 SCC 645], State of Rajasthan v. Mangilal Pindwal [(1996) 5 SCC 60] , Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. [(1969) 1 SCC 255] and A.L.V.R.S.T. Veerappa Chettiar v. S. Michael [AIR 1963 SC 933] . In West U.P. Sugar Mills Assn. case [(2002) 2 SCC 645] a three-Judge Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centring around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case [(1996) 5 SCC 60] this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar case [(1969) 1 SCC 255] a three-Judge Bench of this Court emphasised the distinction between "supersession" of a rule and "substitution" of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place"

33. Therefore, in view of the above, the effect of substitution of rule by another is that the old rule is repealed and the new rule is re-enacted with the result that it has to be treated that the substituted rule was always in existence from the very inception. The Hon'ble Apex Court in re; Gottumukkala Venkata Krishamraju v. Union of India, 2018 SCC OnLine SC 1386, vide paras-15 & 16 has observed as under:-

"15. Ordinarily wherever the word "substitute" or "substitution" is used by the legislature, it has the effect of deleting the old provision and make the new provision operative. The process of substitution consists of two steps : first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. No doubt, in certain situations, the Court having regard to the purport and object sought to be achieved by the legislature may construe the word "substitution" as an "amendment" having a prospective effect. Therefore, we do not think that it is a universal rule that the word "substitution" necessarily or always connotes two severable steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps. However, the aforesaid general meaning is to be given effect to, unless it is found that the legislature intended otherwise. Insofar as present case is concerned, as discussed hereinafter, the legislative intent was also to give effect to the amended provision even in respect of those incumbents who were in service as on September 01, 2016.

16. The effect, thus, would be to replace Section 6 as amended with the intention as if this is the only provision which exist from the date of introduction and the earlier provision was not there at all. The effect of this would be that all those incumbents who are holding the post of Presiding Officer on September 01, 2016 would be governed by this provision."

34. Therefore, in view of the facts, circumstances and case laws so cited by the learned counsel for the parties, I do not find any good ground to direct the opposite parties to fill up the vacancies in the cadre of Workshop Hand occurring prior to the promulgation of Rules, 2016 in accordance with the provisions of Rules, 2015. Since the qualifications so prescribed under the Amended Rules, 2016 are the same as were prescribed under the very first Rules i.e. Rules, 1982 and the qualification so inserted by means of Rules, 2015 on 28.9.2015 remained in force till 19.10.2016, however, vide Amended Rules, 2016 the qualifications indicated under such Rules i.e. Rules, 2016 are not ousting the petitioners from the consideration zone of promotion on the post of Workshop Hand and such Rules, 2016 are governing the field for all practical purposes, therefore, the opposite parties are directed to make promotion on the post of Workshop Hand identifying entire existing vacancies in the promotional quota completing such exercise with expedition, preferably within a period of three months thereby promoting all suitable candidates from Class-IV post to the post of Workshop Hand strictly in accordance with Rules, 2016. The interim orders, if any, in these writ petitions would be treated to have been merged in this order.

35. So far as the prayer in both the writ petitions that vacancies occurring prior to the year 2016 should be filled up on the basis of unamended Rules, 2015 is hereby rejected. However, all the vacancies of Workshop Hand lying vacant in the Department as on today shall be filled up strictly as per the directions made herein above within time so stipulated.

36. In the aforesaid terms, both the writ petitions are disposed of.

[Rajesh Singh Chauhan,J.]

Order Date :- 21.09.2021

RBS/-