Dalbir Singh vs Govt. Of Nct Of Delhi & Ors.
2014 Latest Caselaw 4933 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       RESERVED ON: 21.08.2014
%                                   PRONOUNCED ON:30.09.2014

+                         W.P. (C) 783/2001

       DALBIR SINGH                                    ..... Petitioner
                          Through: Mr. Devendra Singh with
                          Mr. Anant K. Vatsya, Advocates.

                          versus

       GOVT. OF NCT OF DELHI & ORS.            ..... Respondents
                     Through: Mr. Aditya Madan, Advocate for
                     respondent nos.1-3.
                     Mr. G.D. Gupta, Sr. Advocate with
                     Mr. Pramod Gupta, Advocate for
                     respondent nos.4&5.


CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
S.RAVINDRA BHAT, J.

1. In this petition under Article 226 of the Constitution of India, the legality of the order of the Central Administrative Tribunal (CAT), Principal Branch at New Delhi, dated 4.1.2001, in O.A. No. 1276/97, is challenged. The CAT dismissed the petitioner's application.

2. The brief facts are that in 1990, the petitioner was appointed to the post of Senior Demonstrator in the Respondent's service, on ad hoc basis. This post was created in 1986, and in the absence of

W.P.(C)783/2001 Page 1 specific Recruitment rules for it, was filed up according to the rules meant for the recruitment of the Senior Technical Assistant. This was done through a gazette notification, which clubbed the post of Senior Demonstrator with the post of Senior Technical Assistant, Farm Manager and Assistant Horticulturalist. The petitioner was confirmed in this position in 1994, when rules were finally framed for the post of Senior Demonstrator.

3. In 1995, a combined seniority list was prepared, of officials working in the pay-grade of `1640 - `2900. The petitioner was placed ninth in terms of seniority, by reckoning his position based on his date of confirmation (1/8/1994). The fourth and fifth Respondents ("private Respondents" hereafter) - who were, at that time employed in the posts of Vijnan Mandir Officer and Fertilizer Inspector, - were placed at Sl. Nos. 1 and Sl. No. 2 in the combined seniority list.

4. Aggrieved, the petitioner approached the CAT, Principal Bench (O.A. No. 1972/96), challenging the said seniority list, arguing that his seniority should be reckoned from his date of joining (1990), and not date of confirmation (1994). Soon afterwards, the petitioner also filed an application, M.A. No. 2429/96 in O.A. No. 1972/96 for the staying of any promotion from the combined seniority list, to the posts of Seed Analyst and Agronomist. The CAT passed an order, making the said promotions conditional upon the outcome of O.A. No. 1972/96.

5. On 18.2.1997, the Recruitment Rules of 1984 were amended, stipulating qualifications for - inter alia - the posts of Seed Analyst and Agronomist. The Rules also stated that the feeder promotional line

W.P.(C)783/2001 Page 2 to these posts included the posts of Senior Technical Assistant, Assistant Horticulturalist, Farm Manager, Training Officer, Fertilizer Inspector and Vijnan Mandir Officer in the scale of pay of `1640- `2900 with three years regular service in the grade, and possessing degrees in agriculture or allied subjects - but notably, did not include the post of Senior Demonstrator in the feeder line.

6. By Departmental Promotion Order dated 06.05.97, the private respondents in terms of the new Recruitment Rules of 1997-were promoted to the post(s) of Seed Analyst and Agronomist, respectively. This promotion was made conditional upon and subject to the outcome of O.A. 1972/96. By O.A. No. 1276/97, the petitioner challenged these promotions before the CAT, arguing that, being in a similar position to the private respondents he too deserved to be considered, (but was wrongly not considered) for promotion. He further urged that the post of Seed Analyst was a direct recruitment post, and could not be filled up by promotion. Further, he contended that since the post of Agronomist fell vacant in 1993, promotion ought to have been done on the basis of the Recruitment Rules of 1984, and not - as the official Respondent did - on the basis of the 1997 rules; likewise, his case was that in any event, the 1997 rules were void, since they were in contravention to the provisions of the Seed Rules, (framed under the Seeds Act).

7. On 8.3.2000, CAT decided O.A. No. 1972/96 in the petitioner's favour. The petitioner's seniority in the `1640 - `2900 grade was ordered to be restored from the date of his initial appointment, after taking into account the services rendered by him in that grade. In the

W.P.(C)783/2001 Page 3 revised seniority list, the Petitioner was placed third from the top, below the private Respondents.

8. By its order dated 04.01.2001, CAT dismissed the petitioner's application in O.A. 1276 of 1997. That order has consequently been questioned in the present proceedings.

CAT's findings

9. The basis of the CAT's decision was that the Petitioner's specialty - Senior Demonstrator - was not in the feeder promotion line to the posts of Seed Analyst and Agronomist, either under the 1984 rules, or under the 1997 rules. Consequently, he did not acquire any legally enforceable right to challenge the promotions of the private Respondents. The CAT also held that no evidence had been furnished to show that the vacancies should have been filled through direct recruitment and not through promotion and further that there was no inconsistency between the amended RRs, and Rule 20 of the Seed Rules (framed under the Seed Act).

Contentions

10. Before this Court, the petitioner argues that the cadre posts in a particular grade cannot have separate and different promotion lines. He claims that the post of Senior Demonstrator belongs to the same cadre and grade of `1640 - `2900, and is also clubbed with the post of Senior Technical Assistant. Therefore, he argues that he is entitled to the same treatment as is available to the private Respondents, since they are all part of the same seniority list. In other words, while

W.P.(C)783/2001 Page 4 considering the issue of promotion, the Respondent department ought to have drawn up a "zone of consideration" that included the eligible candidates, before deciding upon promotion. The respondents, however, only called for the ACR's of the private Respondents, without considering the petitioner's case. Its failure to do so was therefore a denial of equal opportunity to the petitioner.

11. The Petitioner also argues that, because the vacancies arose in 1993 and 1995, the appointments ought to have been made under the 1984 Recruitment Rules, and not under the 1997 Rules - and that in any event, the 1997 Rules were ultra vires the Seeds Act of 1968. To say this, the Petitioner argues that the qualifications required for holding the post of Seed Analyst are prescribed under Rule 20 of the Seeds Rules, framed under the Seeds Act, 1966. The recruitment rules in question- of 1997 are a clear departure from the statutory rules and to the extent that they vary from a law enacted by Parliament, cannot prevail. It is further argued that under the 1984 rules, even if the petitioner was not entitled to be promoted to the post of Agronomist, so was the case with the fifth Respondent; consequently, that Respondent's promotion to that post (while the similarly placed petitioner was not even considered) is - according to the petitioner - a violation of Articles 14 and 16. Therefore, he requests this Court to direct the official Respondent to consider his case for promotion on par with the fifth and sixth Respondents.

12. Learned counsel for the petitioner further submitted that 40% posts (in the higher cadre of Seed Analyst/Agronomist) were to be filled up by promotion and in case of promotion, the feeder cadre also

W.P.(C)783/2001 Page 5 included the "grade from which promotion/deputation/transfer to be made" and against that column, pay in the relevant scale, i.e., `1640 - `2900,- was stipulated. He submitted that this Rule clearly provided that a person who was in the grade of `1640 - `2900, had to be considered for promotion to the post of Agronomist/Seed Analyst; as the petitioner was holding a post with that pay scale and was senior to the private respondents, he could not have been ignored from consideration. He further submitted that all posts were interchangeable, including that of the Demonstrator held by him and for this reason which was even admitted by the respondent in its reply, the official respondents had prepared a combined seniority list for the purpose of promotion. It was submitted that if the petitioner is not treated in the feeder cadre, then there are no promotional avenue from the post of Sr. Demonstrator. If the interpretation urged were not accepted, submitted counsel, the Rules would be exposed to the vice of arbitrariness and rendered contrary to the mandate of Article 14. Counsel relied on Council of Scientific and Industrial Research and Anr. Vs. K.G.S. Bhatt and Anr. (1989) 4 SCC 635 for the proposition that every public employee has a right to be considered for two promotions during his career. An interpretation which would deprive him of that right- so essential to incentivize productivity and quality of work, would be violate Article 14 of the Constitution of India.

13. It was submitted, in addition, that the materials on record clearly pointed to interchangeability of various feeder cadre posts; thus, for instance, incumbents in the cadres of Senior Technical Assistant, Assistant Horticulturalist, Farm Manager, Training Officer,

W.P.(C)783/2001 Page 6 Fertilizer Inspector and Vijnan Mandir Officer in the scale of pay of `1640 - `2900 were frequently posted or transferred inter se; there being no water-tight compartment prohibiting such lateral operational movement, CAT fell into error in holding that the post held by the Petitioner was not a feeder grade for promotion as Seed Analyst/Agronomist. Being posts in equivalent grades which entailed discharge of similar and analogous functions, the incumbents had to be considered as feeder categories.

14. The Respondents argue that this court should not interfere with the CAT's impugned order, since it is well reasoned. It is argued that the Petitioner was never in the line of promotion, unlike in the case of the private respondents; mere assignment of seniority in a common gradation or seniority list would not entitle an employee to promotion to a higher post, unless the rule enable him to the considered on the basis of his or her fulfilling other prescribed conditions, such as experience in the post, the feeder grade, the quota limitations, etc. Since the Petitioner was a Senior Demonstrator - a post which did not figure as a feeder grade for promotion to the post of Seed Analyst/Agronomist, he was not eligible for being considered for the said post.

15. The respondents argue that there is no inconsistency between the Seeds Rules, especially Rule 20 and the recruitment rules. It is argued that initial recruitment to the post of Seeds Analyst is in terms of the Recruitment Rules; these officers gain experience by working in non-notified laboratories. After gaining the requisite experience, they are given the responsibilities of Seeds Analyst under Rule 20.

W.P.(C)783/2001 Page 7 Consequently, the recruitment rules cannot be said to be ultra vires the Rules.

Analysis and Conclusions

16. We shall consider the submissions in turn. The first question that falls for consideration is whether the Petitioner had the right to be considered for promotion alongside the private Respondents, and whether he was illegally deprived of that right. Indisputably, the feeder line for promotion is determined in the first instance, by the Recruitment Rules. There is no doubt here that the Recruitment Rules (both the 1997 Rules and the 1984 Rules) did not place the post of Senior Demonstrator as being in the promotion line for Seed Analyst or Agronomist. Therefore, the Petitioner must demonstrate good reasons why the Recruitment Rules ought to be overridden, or why the post of Senior Demonstrator ought to be read into the Rules, despite its clear omission as a feeder grade from amongst which promotion can be made to the cadres of Seed Analyst or Agronomist.

17. In attempting to establish this, the core of the petitioner's case is that the posts of Senior Demonstrator, Fertilizer Inspector and Farm Manager are "equivalent", and therefore belong to the same feeder cadres, as well as in the common promotion line to the posts of Seed Analyst and Agronomist. This is sought to be supported by pointing to the fact that the Senior Demonstrator's post was filled up according to the same rules as applicable for the recruitment of Senior Technical Assistant, and was subsequently clubbed with the posts of Farm Manager and Assistant Horticulturalist. Relying upon the case of

W.P.(C)783/2001 Page 8 Jacob Yahanan v H.P. Vora, 1997 (8) SCC 453, the petitioner argues that this amounted to an "expansion of the cadre", and that consequently, because he was in the same cadre as that of the private Respondents (because of the equivalence of their posts), the principles of equality of opportunity under Articles 14 and 16 of the Constitution, as declared in General Manager, Southern Railways vs Rangachari, AIR 1962 SC 36 and Gadde Venkateswara Rao vs Govt of Andhra Pradesh, AIR 1966 SC 828 would apply.

18. The scope of judicial review of the equation or non-equation of posts in a common feeder category for promotion was addressed by the Supreme Court in T. Venkateswarulu vs Executive Officer, Tirumala, (2009) 1 SCC 546. The Court held, in that case, as follows:

"It is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts do not enter upon the task of job evaluation which is generally left to expert bodies as several factors have to be kept in view while evolving a pay structure. Being a complex matter, the court will interfere only if there is cogent material on record to come to a firm conclusion that a grave error has crept in such an exercise and court's interference is absolutely necessary to undo the injustice being caused."

19. In Jacob Yohanan (supra), the Supreme Court addressed the issue of cadre expansion, and when different posts could be treated to be part of the same feeder line for promotion, despite not being expressly stated to be so. The Court noted:

W.P.(C)783/2001 Page 9 "Due to service exigencies, posts of Assistant Engineers and Assistant Surveyors of Works (Civil) were created from time to time and the feeder source thereof was from the Section Officers. The pay scales of all these posts remained identical and they were interchangeable. The nature of work of these three posts may be to some extent different but they were all along treated as connected with the P.W.D. Department. How these Rules were understood and what was the practice followed in the P.W.D. in Dadra and Nagar Haveli Administration is clear from the material produced on record Annexure 'A' to Civil Appeal No. 256 of 1993 sets out details relating to the posting of the first respondent H.P. Vora. From 4th October, 1972 to July 1974, he worked as Deputy Engineer C.S.R.C. From April, 1974 till March, 1975 he was posted as Assistant Surveyor of Works (ASW) and was again transferred as Deputy engineer in BDO Office in 1976. July, 1976 to Jane 16,1977 worked as a Deputy Engineer Mil, from 27th December, 1978 to 5th February, 1979 and 16th May, 1979 to 31st May, 1979, he held the post of Assistant Surveyor of Works (Civil). From July 1982 till July 1986, he was the incharge of both, namely, M.I.I, and M.I.P. From February, 1986 till January, 1990, he was working as A.S.W., Irrigation Division. The service card of H.P. Vora maintained in Form 25-B is at Annexure 'B' to Civil Appeal No. 256 of 1993. This card indicates that he was working as Assistant Surveyor of Works with effect from 1st April, 1974. So is the service record of Jacob Yahannan who held the post of Assistant Surveyor of Works (Civil) from 8th April, 1982 to 29th September, 1982 and from 29th September, 1982 onwards as Deputy Engineer. Annexure 'D' sets out details of various other officers who worked as Assistant Surveyors of Works in PWD (Civil). The above record of services of the first respondent and other similarly situated officers it considered in the context of the

W.P.(C)783/2001 Page 10 Rules of 1968 relating to the recruitment to the post of Deputy Engineer, it would be clear that the post of Deputy Engineer was treated for all practical purposes during these years as equivalent to that of the Assistant Engineer and Assistant Surveyor of Works (Civil) and was interchangeable."

20. It is clear from the above decision that interchangeability, in order for there to be an inference of a common cadre and a common feeder line for promotion, must actually exist in practice; that is, there must be some kind of evidence to show that the functions of the posts in question were treated as interchangeable by the concerned department. Identical pay-scales or qualification requirements do not in themselves necessitate a finding of a common cadre, when the recruitment rules clearly express a contrary position. The Court notes that in the present case, the petitioner has failed to demonstrate interchangeability in practice. The reliance placed on a solitary instance where some kind of interchangeability between the cadres lower to Senior Demonstrators, Assistant Horticulturist and Seed Certification Inspector, (by the order dated 30-05-1988) can be hardly a proof of "practice", much less one which establishes equivalence. The Petitioner has pointed to identical pay-scales, and to the fact that the qualification and experience levels for the Senior Demonstrator were the same as that for a Senior Technical Assistant. However, as this court notices that by itself, it is insufficient for overriding the Recruitment Rules. This argument, therefore, must fail. Consequently, the question of discrimination and equality of opportunity under Articles 14 and 16 does not arise, and the judgments cited by the

W.P.(C)783/2001 Page 11 Petitioner are inapt since they bear no relevance to the controversy in the present case. It is therefore clear that, not being part of the feeder line for promotion to the posts of seed analyst and agronomist, the petitioner had no right to be considered for promotion to those posts. According to the well-settled jurisprudence of the Supreme Court, a person who is not qualified for promotion or appointment to a post, lacks the standing to challenge other appointments, since he cannot have recourse to any effective remedy. In Jeet Singh vs State of Punjab, 1979 (1) SLR 604, the Supreme Court held that "the appellants were, in any view of the matter, not eligible for promotion as their names were not included in list 'G' as it emerged from the Public Service Commission in 1970. The High Court therefore cannot be blamed if it took the view that as the appellants had not qualified for promotion when list 'G' was drawn up by the State Government in 1966, they could not succeed in their claim in the writ petition."

Similarly, in R.K. Jain vs Union of India, 1993 (3) SCR 802, the Supreme Court held that "in service jurisprudence it is settled law that it is for the aggrieved person to assail the legality of the offending action. Third party has no locus stand it to canvass the legality or correctness of the action."

More recently, in Union of India vs K.B. Rajoria, 2000 (3) SCC 562, the Supreme Court reversed a finding of the High Court, on the ground that the petitioner, being ineligible for a certain appointment, lacked the locus standi to agitate the matter before the Courts:

"the High Court erred in not dismissing the writ petition on the ground of the obvious lack of locus standi in Rajoria who had

W.P.(C)783/2001 Page 12 never been granted notional promotion because the DPC was not in fact held for reasons which the High Court felt were unavoidable. Rajorias case was built on hypothetical situations."

21. It is therefore clear that in the given circumstances of the present case, that the petitioner does not have the locus standi to pursue the present case, since he has failed to demonstrate that the post of Senior Demonstrator ought necessarily to have been considered to be part of the same cadre and feeder line for promotions to the posts of seed analyst and agronomist. The CAT, therefore, was correct in rejecting his claim for promotion as Seed Analyst/ Agronomist.

22. The petitioner has, in addition, assailed the 1997 recruitment rules themselves, on the basis of which the promotions were made. The petitioner presents two arguments with respect to those rules: first, that the vacancy for Agronomist arose in 1993, and consequently, the 1984 Recruitment Rules ought to have been applied to it; and secondly, that the 1997 rules were, in any event, ultra vires the Seeds Act 1966, inasmuch as they were contrary to Rule 20 of the Seeds Rules 1968 and therefore invalid. In the absence of the 1997 Rules, it is the 1984 Rules that would apply. The petitioner's argument there is that under the 1984 rules, the fifth Respondent was also ineligible for promotion to the post of agronomist. Therefore, this amounted to treating equals unequally, and that consequently, the Petitioner also deserves to be considered for the said promotion.

W.P.(C)783/2001 Page 13

23. We have already held that as far as entitlement to being in a common feeder line for promotion is concerned, the Petitioner has failed to discharge his burden. Consequently, in the absence of any legal grievance, he lacks the locus standi to challenge the vires of the 1997 Recruitment Rules; the argument that under the 1984 rules he would have had a vested right because of the fifth Respondent's apparently illegal promotion begs the question, because the Petitioner must first show, to succeed in that claim, that he was in a position of equality with the fifth Respondent, thus meriting Articles 14 and 16 treatment. Being ineligible for promotion to the post of Seed Analyst/ Agronomist, he cannot claim parity, even arguendo it were to be assumed that the fifth respondent was ineligible, for some reason to be considered for promotion to either of those post. As the above analysis has shown, the Petitioner has failed to do so, and consequently, his challenge to the 1997 Rules must also fail. Nonetheless, in order to settle the controversy definitively, we will examine the Petitioner's arguments on merits.

24. At the outset, this Court notes that the petitioner's case rests upon a claim of negative equality, which has been repeatedly rejected by the Courts. Essentially, the petitioner is arguing that because, under the 1984 rules, Respondent No. 5 was illegally promoted to the post of Agronomist, the Court should now perpetuate that illegality by considering his (non-existent) entitlement to promotion. In State of Bihar vs Kameshwar Prasad Singh, (2000) 9 SCC 94, the Supreme Court held:

W.P.(C)783/2001 Page 14 "The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits."

25. In Fuljit Kaur vs State of Punjab AIR 2010 SC 1237, relying upon extensive authority, the Supreme Court observed:

"[Equality] cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial Forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim the benefits on the basis of the wrong decision. Even otherwise Art.14 cannot be stretched too far otherwise it would make function of the administration impossible. [vide Coromandel Fertilizers Ltd. Vs. Union of India & Ors. AIR 1984 SC 1772; Panchi Devi Vs. State of Rajasthan & Ors. (2009) 2 SCC 589; and Shanti Sports Club & Anr. Vs. Union of India & Ors.

(2009) 15 SCC 705]... Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Administration & Anr Vs. Jagjit Singh & Anr., AIR 1995 SC 705; Smt Sneh Prabha Vs. State of U.P. & Ors., AIR 1996 SC 540; Jalandhar Improvement Trust Vs. Sampuran Singh, AIR

W.P.(C)783/2001 Page 15 1999 SC 1347; State of Bihar & Ors. Vs. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Union of India & Ors. Vs. Rakesh Kumar, AIR 2001 SC 1877; Yogesh Kumar & Ors. Vs. Government of NCT Delhi & Ors., AIR 2003 SC 1241; Union of India & Anr. Vs. International Trading Company & Anr., AIR 2003 SC 3983; M/s Anand Button Ltd. Vs. State of Haryana & Ors., AIR 2005 SC 565; K.K. Bhalla Vs. State of M.P. & Ors., AIR 2006 SC 898; and Maharaj Krishan Bhatt & Anr. Vs. State of Jammu & Kashmir & Ors., (2008) 9 SCC 24)."

The petitioner's case based on the 1984 rules, therefore, is without merit.

26. In any case, the Court notes that it is by no means clear whether the 1984 rules do apply. Let us therefore consider some of the important Supreme Court cases in this area. In Y.V. Rangaiah vs J. Sreenivasa Rao, (1983) 3 SCC 284, certain Andhra Pradesh Service Rules required the Department of Registration and Stamps to prepare to prepare a list of approved candidates for appointment to the Sub- Registrars Grade II, by 1st September, 1976. The Department failed to do so, and only prepared the list by 1977, during which time the rules had been amended. The Court held that:

"under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub- Register Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules."

W.P.(C)783/2001 Page 16

27. In A.A. Calton vs Director of Education, (1983) 3 SCC 33, the proceedings for selection to a post had begun in 1973. While the selection process was going on, in 1975, the parent Act was amended.

The Court held:

"The process of selection under section 16-F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection under Section 16-F(4) (as it stood then) is an integrated one. At every stage in that process certain rights are created in favour of one or the other of the candidates. Section 16-F of the Act cannot, therefore, be construed as merely a procedural provision. It is true that the Legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect."

28. In P. Ganeshwar Rao vs State of A.P., 1988 Supp SCC 740, a similar question arose about certain Andhra Pradesh service rules that were amended. According to the amendment, "37-1/2 of the substantive vacancies arising in the category of Assistant Engineers shall be filled by direct recruitment ...." Focusing on the word "arising", the Court held that "the introduction of [that word] in the above clause made it applicable only to those vacancies which came into existence subsequent to the date of amendment."

29. In N.T. Devin Katti vs Karnataka Public Services Commission, (1990) 3 SCC 157, the Court held that a candidate, on making an

W.P.(C)783/2001 Page 17 application to a post pursuant to an advertisement, acquires a vested right of being considered for selection in accordance with the rules as they existed on the date of the advertisement. If, therefore, there was a subsequent amendment, that amendment would be deemed to be prospective unless it specifically stated that it was retrospective.

30. Lastly, in B.L. Gupta vs Municipal Corporation of Delhi, (1998) 9 SCC 223, the Respondent Department advertised certain posts in 1993. An examination was held, and results were declared in 1994, and some of the vacancies were filled. The recruitment rules were subsequently amended in 1995. Noticing specifically that vacancies had been advertised in 1993, and an examination held on the basis thereof, the Court held that the amended rules were applicable only prospectively.

31. It is apparent from the preceding discussion that mere existence of vacancies at any given point in time would not always result in a compulsion to the state or its agency that they must be filled up in accordance with the pre-amended recruitment rules depending upon the point in time when it arose. In fact, the Court has specifically required the presence of the word "arise" to make that particular finding. What is crucial, on the other hand, is that if a vested right accrues to employees at any given point, to be considered under the framework of a certain set of rules, then a subsequent amendment will not apply to those employees' promotions or appointment. Thus, the Court has found that where, for instance, selection processes had commenced, or posts had been advertised for by departments, in those cases, the rules existing at the time the process began or when the

W.P.(C)783/2001 Page 18 advertisements were issued (i.e., the rules existing at the time the vested right to be considered came into being). In this case, however, there was no such vested right. Consequently, the petitioner's submission, that the 1984 rules apply to promotions made after the 1997 rules came into force, simply because the vacancy arose before 1997, cannot be sustained. The petitioner has failed to demonstrate the existence of a vested right that required the application of the 1984 rules to this case. This court notices that at the time of hearing an attempt was made on the part of the Petitioner to- in support of the submission that the vacancies ought to have been filled in terms of the pre-amended rules- to rely on an amendment made in 1994. That amendment (notified on 01-08-1994), it was submitted, equated Sr. Demonstrators with the other feeder cadres for the purpose of promotion to the post of Seed Analyst/Agronomist. This argument too is, in the opinion of the court, meritless. Firstly the said amendment is inclusion of the post of Sr. Demonstrator along with the other category of posts; however, it does not indicate that the said post became a feeder cadre. However, even if the contrary were to be assumed, it is a matter of fact that the 1997 amendment limited the feeder categories; in its terms, Sr. Demonstrators were ineligible for consideration for the promotional posts of Seed Analyst/Agronomist. Secondly, there is no material on the record - since the respondents do not aver or admit to that effect- that the posts filled up, (to which the Petitioner objects) in fact arose before the Amendment - of 1997.

W.P.(C)783/2001 Page 19

32. So far as the petitioner's submission that the 1997 Recruitment Rules were ultra vires the Seed Acts 1966 or the Seeds Rules, because they prescribed a different set of qualifications for the post of Seed Analyst, and therefore inapplicable, goes, the Court is of opinion that the argument is flawed. Section 12 of the Seeds Act only says that the qualifications to the post of Seeds Analyst shall be in terms prescribed under the Rules. Rule 20 of the Seeds Rules, 1968 in this regard states that:

"20. Qualifications of Seed Analysts: A person shall not be qualified for appointment as Seed Analyst unless he

i. Possesses a Master's or equivalent degree in Agriculture or Agronomy or Botany or Horticulture of a University recognized for this purpose by the Government and has had not less than one year's experience in seed technology; or

ii. Possessed a Bachelor's degree in Agriculture or Botany of a University recognized for this purpose by the Government and has had not less than three year's experience in seed technology..."

It is evident that the Rules refer to notified laboratories, whereas the 1997 Recruitment Rules refer to qualifications for non-notified laboratories. Thus, there is no inconsistency between the two. The petitioner's reliance on A.B. Krishna vs State of Karnataka, for the proposition that Rules made under Article 309 cannot supersede rules made by the legislature does not help its case, since the two sets of rules operate in different fields, and are concerned with different subjects. This argument must accordingly fail.

W.P.(C)783/2001 Page 20

33. The Petitioner had claimed, that the procedure of appointments was flawed, since the 1997 rules required 40% of the appointments by promotion, and 60% by direct recruitment. However, the Petitioner failed to demonstrate why, specifically, the posts of Agronomist and Seed Analyst ought to have been filled through direct recruitment, and not promotion. Petitioner's reliance upon the case of State of Punjab vs R.N. Bhatnagar, (1999) 2 SCC 330 does not help his case. R.N. Bhatnagar merely dealt with the procedure by which a part-direct recruitment and part-promotion system of appointment would work, and held that "when posts in a cadre are to be filled in from two sources whether the candidate comes from the source of departmental promotees or by way of direct recruitment once both of them enter a common cadre their birth marks disappear and they get completely integrated in the common cadre."

That finding has no relevance to the present case. The Petitioner has not shown the working of the rota rule or how the vacancies filled by the private respondents were, in fact, required to be filled by direct recruitment.

34. Consequently, there is no merit in the second limb of the Petitioner's argument, which challenges the 1997 Recruitment Rules on various grounds. We reiterate that our first finding on the lack of the Petitioner's locus in terms of an entitlement to be considered for promotion via a common feeder cadre itself precludes the necessity of examining the submissions on the vires of the 1997 Recruitment

W.P.(C)783/2001 Page 21 Rules. However, even if we were to do so, we find no merit in the Petitioner's arguments.

35. Accordingly, the Petition fails; this court holds that there is no infirmity in the findings and order of the CAT, impugned in the present proceedings. The writ petition is therefore, dismissed; but without any order as to costs.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) SEPTEMBER 30, 2014

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