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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2208-2209 OF 2013
(Arising out of SLP (Civil) Nos. 7441-7442/2008)
State of U.P. & Ors.
...Appellants
Versus
Mahesh Narain Etc. …
Respondents
J U D G M E N T
GYAN SUDHA MISRA, J.
Leave granted.
2. The appellant-State of Uttar Pradesh has
preferred these appeals against the common judgment
and order dated 5.9.2007 passed in two writ petitions
bearing Nos. 1049(S/B)/2007 and 1040(S/B)/2007 whereby
the Division Bench of the High Court of Allahabad,Page 2
Lucknow Bench, Lucknow was pleased to dismiss both the
writ petitions filed by the appellant/State of U.P. herein.
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
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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
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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
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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.
5. But in pursuance to the Rules of 1990, the State
Government notified 11 vacancies for direct recruitment
through a notification published in the Employment News
dated 5.1.1995. Since the promotion was not granted to
the respondents on the post of Assistant Director even
after five years of service against four vacancies which
were available to be filled under promotion quota, the
respondents filed claim petitions under the U.P. Public
Service Tribunal Act (1976).
The tribunal allowed the claim petition and directed the
authorities to consider the case of the respondents for
promotion against the said quota on the post of Assistant
Director and to promote them with all consequential
benefits including pay and allowances if found suitable.
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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.
7. The appellant/State of U.P. felt aggrieved with
the judgment and order passed by the High Court as also
the tribunal and hence has filed these two special leave
petitions which arises out of the common judgment and
order of the High Court under challenge wherein the
principal ground of challenge is that the respondents
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were not eligible for promotion to the post of Assistant
Director under Rules 5 and 16 of the 1987 Rules as they
were not possessing five years of experience nor were
functioning on permanent post of Scientific Officers. Thus,
they were not eligible in terms of Rule 5 and 16 of the
1987 Rules which provided for recruitment to 25% of
vacancies to the post of Assistant Director found amongst
the permanent scientific officers with five years
experience. It was stated that the respondents were
promoted to the post of Scientific Officer purely on ad hoc
basis on 16.9.1985 and were thereafter promoted on the
said post on permanent basis only on 20.3.1989 but the
Rules of 1987 were amended on 15.9.1990, whereby all
the posts of Assistant Director were to be filled by direct
recruitment. In these circumstances, it was submitted
that the respondents could not be deemed to have had
five years experience to their credit on the permanent
post of Scientific Officer as required by Rule 5 of the 1987
Rules so as to be eligible for consideration of promotion on
the post of Assistant Director.
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8. In response to a show cause notice which was
issued to the respondents by this Court, it was contended
in sum and substance that the respondents were duly
qualified to be promoted as they had already put in five
years of service on the next lower post of Scientific Officer
to which they were promoted and were, therefore, rightly
held eligible to be considered for promotion to the post of
Assistant Director. Arguments were also advanced to the
effect that the respondents had already completed five
years of service in terms of Rule 5 of the 1987 Rules itself
which were applicable on the Respondents. It was further
elaborated that in view of Rule 5 of the 1987 Rules, the
respondents were entitled for consideration for promotion
to the posts of Assistant Directors against the quota of
25% of the vacancies reserved for departmental
candidates which were to be filled in by the candidates
who were already discharging duties in the department
since the amendment of 1990 laying down to fill all the
post of Assistant Directors by direct recruitment came into
effect on 20.10.1990 by which time the promotion of the
Respondent on the post of Scientific Officer already stood
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confirmed so as to be eligible for consideration of
promotion for the post of Assistant Director under the
unamended Rules of 1987 and thus would not be affected
by the Amended Rules of 1990 laying down to fill all the
posts by direct recruitment.
9. In order to ascertain the correctness of the
orders passed by the High Court as also the Tribunal, we
have carefully examined the contesting claims of the
parties. In the process, we noticed that the respondents
were initially promoted to the post of Senior Chemical
Assistant in the year 1973 and were further promoted as
Scientific Officer on 16.9.1985 which they joined on
20.9.1985. It is no doubt true that this promotion order
indicated that the promotion was to remain effective only
for a period of one year or until the rules of 1987 were
published but thereafter when the Rules of 1987 were
finally published, it provided that 25% post of the total
posts of promotion were to be filled in from amongst the
permanent Scientific Officers having experience of five
years of service. Hence if the five years of service is
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counted from the date of initial promotion until publication
of amended Rules of 1990, the respondents had already
completed five years of service on the post of Scientific
Officer making them eligible for further promotion of
Assistant Director under the 25% promotion quota to be
filled by the departmental candidates possessing the
required experience of five years. However, the
appellant/State of U.P. contested all through that the
experience of the Respondents would be counted not
from the date when the rules were published in the
Gazette but would be from the date when the rules were
under preparation in view of which they did not possess
the requisite experience of five years on the post of
Scientific Officer.
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
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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.
11. But even if we were to hold that the reasons
assigned by the High Court in the impugned judgment
suffered from some aberration since the respondents had
joined on the post of Scientific Officer in the year 1989
due to which in 1990, they did not acquire the requisite
experience, it cannot be overlooked that the respondents
had been promoted on the post of Scientific Officers on
16.9.1985 on ad hoc basis which had to remain effective
for a period of one year only but it had also ordered that
the incumbent would be entitled to continue on the
promoted post till the service rules of 1987 were
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published. Thus the respondents had a right to continue
on the promoted posts when the Rules of 1987 were
finally published and made effective in 1987 which
earmarked that 25% of total posts were to be filled by
promotion from amongst the permanent Scientific
Officers having experience of five years of service and
further added a proviso which laid down that:
“where permanent Scientific Officers are
not available, such temporary and
officiating personnel may also be
considered for promotion to the said posts
as may be permanent on the next lower
post.”
Rules of 1987 were amended thereafter in the
year 1990 which was published in the U.P. Government
Gazette dated 20.10.1990 laying down that the
subsequent promotion would be made only by direct
recruitment. But this amendment cannot be allowed to
affect the respondents’ claim for promotion as a rule
cannot work to the prejudice of an employee who was
holding the post of his eligibility prior to the enactment
and enforcement of the Amended Rules of 1990. Since
the respondents were eligible and entitled to the
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promotion for the post of Scientific Officer in terms of the
Rules of 1987, their experience could not have been
ignored on the said post so as to deny them the benefit
of consideration for the subsequent post of Assistant
Director on the basis of Rules of 1990 which could be
made effective for the vacancies which arose after 1990.
12. Learned counsel for the respondents in support
of this position has also cited the authority of this Court in
the matter of Nirmal Chandra Bhattachrjee & Ors. vs.
Union of India & Ors. reported 1991 Supp. 2 SCC 363
wherein this Court observed as under:-
“No rule or order which is meant to benefit
employees should normally be construed in
such a manner as to work hardship and
injustice specially when its operation is
automatic and if any injustice arises then the
primary duty of the courts is to resolve it in
such a manner that it may avoid any loss to
one without giving undue advantage to
other”.
The Court further observed that the mistake or delay on
the part of the department should not be permitted to
recoil on the appellants, more so since, the restructuring
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order in the said case itself provided that vacancies
existing on July 31, 1983 should be filled according to
procedure which was in vogue before August 1, 1983.
This Court therefore, restored the promotion order of the
employees to which they were entitled prior to the
change of service rules as it was held that the change of
service rules cannot be made to the prejudice of an
employee who was in service prior to the change. The
Court further went on to hold that if the delay in
promotion takes place at the instance of the employer,
an employee cannot be made to suffer on account of
intervening events.
13. The principle laid down in the aforesaid case
aptly fits into the facts and circumstances of this case as
the subsequent amendment of 1990 laying down to fill in
all the posts of Assistant Director Forensic Science by
direct recruitment could not have been applied in case of
the respondents who were already holding the post of
Scientific Officer and hence were eligible to the promoted
quota of 25% posts of Assistant Director after completion
of five years of service as Scientific Officers in terms of
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the Rules of 1987 and, therefore, their experience of five
years on this post could not have been made to go waste
on the ground that the amendment came into effect in
1990 making all the posts of Assistant Director to be filled
in by direct recruitment. In support of this view, the
counsel for the Respondents also relied on the decision of
this Court in the matter of B.L. Gupta & Anr. vs. M.C.D.
reported in (1998) 9 SCC 223 wherein this Court had held
that any vacancy which arose after 1995 were to be filled
up according to rules but the vacancies which arose prior
to 1995 should have been filled up according to 1978
rules only.
14. As a consequence of the aforesaid analysis, we
have no hesitation in holding that the High Court was
right in taking the view that the respondents were eligible
for promotion to the post of Assistant Director under the
Rules of 1987 against 25 per cent quota to be filled in by
promotion as they satisfied the conditions of five years of
requisite experience on the post of Scientific Officer if the
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experience were to be counted from the date of
publication of the Rules in the U.P. Government Gazette.
15. But besides the above, it cannot be overlooked
that even if it were to be assumed that the respondents
had not completed five years of experience on the post of
Scientific Officer for any reason whatsoever making them
ineligible for consideration of further promotion, they also
had the statutory protection and benefit of the proviso to
the said Rule 5 which laid down that where permanent
scientific officers were not available for absorption under
the 25% quota, such temporary and officiating personnel
were also to be considered for promotion to the said posts
who were functioning on permanent basis on the next
lower post. It is an admitted position that the
respondents had already been confirmed on the next
lower post when they were promoted to the post of
Scientific Officers and as they were entitled to the
benefit of the proviso which laid down that even the
temporary scientific officers who are permanent on next
below post may also be considered for the purpose of
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promotion, the Respondents had a right to be considered
for promotion since they were continuing on the post of
Scientific Officer and had completed five years even
before the Amended Rules came into effect on 20.10.1990
which laid down that all post of Assistant Directors would
be filled by direct recruitment. Thus, for this additional
and sure shot reason as also for the reasons which have
been assigned by the High Court, we find no infirmity in
the orders of the High Court as also the Tribunal which
had held in favour of the respondents directing the
appellant/State of U.P. to consider their eligibility for
promotion to the post of Assistant Director Forensic
Science and grant them the consequential benefit if found
eligible.
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.
……………………………..J.
(T.S. Thakur)
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……………………………..J.
(Gyan Sudha Misra)
New Delhi,
February 06, 2013
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