(Hemant Gupta and V. Ramasubramanian, JJ.)
Civil Appeal Nos. 10005-10006 of 2010
Benu Bajaj ______________________________________ Appellant;
v.
State of Haryana and Others _______________________ Respondent(s).
With
Civil Appeal No. 10004 of 2010
State of Haryana and Another _______________________ Appellant(s);
v.
Geeta Devi and Another ___________________________ Appellant(s);
Civil Appeal Nos. 10005-10006 of 2010 and Civil Appeal No. 10004 of 2010, decided on April 20, 2022
The Order of the court was delivered by
Order
1. This order shall dispose of the appeals preferred against an order dated 03.07.2009 and the order in review dated 09.10.2009. The High Court had allowed the writ petition filed by Geeta Devi while setting aside the promotion of the appellant-Benu Bajaj for the reason that since the vacancy of the post in question arose prior to the amendment in the Rules, therefore, in view of the judgment in ‘Y.V. Rangaiah v. J. Sreenivasa Rao’, reported in (1983) 3 SCC 284, the old Rules would be applicable.
2. Geeta Devi, the respondent, claimed promotion to the post of Head of the Department in a Government Polytechnic governed by Haryana Technical Education Department (Group-A) Service Rules, 1986 (for short, ‘the Rules’). Such Rules were amended, when notified on 11.11.2008. The Rules which were in existence prior to the amendment and the explanation which was inserted vide amendment on 11.11.2008 read as thus:
“APPENDIX-B
| Sl. No. | Description of Post | Academic qualification and experience, if any For direct recruitment | Academic qualification and experience, if any, for appointment other than by direct recruitment. |
| 1 | 2 | 3 | 4 |
| 1 to 19 | xxx | xxx | xxx |
| 20 | Head of Department in Applied Sciences | i) First Class Master’s degree in Physics/Chemistry/Mathematics/English from a recognized University/Institute;
ii) 8 years experience as lecturer in a University or college affiliated to a recognized University/Institute;
iii) knowledge of Hindi upto Matric standard.” | 12 years experience as lecturers in Applied Sciences out of which 2 years as senior lecturer in Applied Sciences. |
“Explanation: – The term ‘experience’ as used herein shall mean service rendered in the Department of Technical Education, Haryana after regular appointment on the post.”
3. Geeta Devi was appointed as Senior Lecturer by way of direct recruitment on substantive basis on 03.12.2004. Benu Bajaj, the appellant, was appointed on 09.05.1995 as Lecturer. She worked as Lecturer till 02.12.2004 and was thereafter promoted as Senior Lecturer on 03.12.2004. The qualification for promotion to the post of Head of Department is 12 years’ experience as Lecturer in Applied Sciences, out of which 2 years’ experience is to be that of Senior Lecturer in Applied Sciences. The explanation inserted on 11.11.2008 is to the effect that only regular service shall be considered as experience.
4. The appellant was eligible under the aforesaid Rules, however, Geeta Devi claimed her experience on ad-hoc basis to assert that the Rules as were in existence at the time of vacancy have to be considered in the writ petition filed. Since the vacancy arose prior to the amendment in the Rules, therefore, she was eligible for promotion but she was wrongly excluded from consideration. She thus claimed that she was eligible for promotion as per the unamended Rules due to her experience on ad-hoc basis.
5. The proposal to fill up vacancies for the post of Head of the Department was considered after the amendment in the Rules. In such consideration, the appellant Benu Bajaj was promoted as Head of the Department. The High Court had set aside the promotion of the appellant. The State as well as promoted candidate are in appeal against the order passed by the High Court.
6. The judgment in Y.V. Rangaiah was considered in several decisions such as in ‘Delhi Judicial Services Association v. Delhi High Court’ reported in (2001) 5 SCC 145, wherein it was held as under:—
“5.…….The aforesaid decision will have no application to the case in hand inasmuch as in Delhi Higher Judicial Service there is no requirement of preparation of any panel or list of candidates eligible for promotion by any particular date. Then again, merely because posts were created under Rule 16, it was not obligatory for the appointing authority to fill up those posts immediately … This being the position, it is difficult for us to accept the contention of Mr. Misra, appearing for the association that the posts were required to be filled up only by way of promotion under the pre-amended rules notwithstanding the fact that the advertisement itself was issued subsequent to the rules being amended and notwithstanding the fact that this Court earlier had indicated that the process of selection even by direct recruitment should take effect, without waiting for the rules being finally enforced …..”
7. In a subsequent judgment in ‘Deepak Agarwal v. State of Uttar Pradesh’, reported as (2011) 6 SCC 725, argument of old vacancies to be filled under the old rules was sought to be invoked by the appellants in support of their claim that the vacancies arising prior to the amendment have to filled up under the Rules which were in existence prior to amendment, as per the principle enunciated by this Court in Y.V. Rangaiah. It was observed that there is no statutory duty upon the respondents to either prepare a year-wise panel of the eligible candidates or the selected candidates for promotion. It was held as under:
“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’s case (supra) 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 can not be accepted that any accrued or vested right of the appellants have been taken away by the amendment.”
8. Recently, the judgment in Y.V. Rangaiah was again considered by this Court in ‘Union of India v. Krishna Kumar’, reported as (2019) 4 SCC 319, wherein this Court noted the well-settled principle that there is no vested right to promotion, but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. This Court held that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of the law which existed on the date when they arose. The decision of this Court in Y.V. Rangaiah has been construed in subsequent decisions as a case where the applicable Rules required the process of promotion or selection to be completed within a stipulated time frame. It was held as under:
“13. . ….. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havaldars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion.”
9. Therefore, mere fact that the vacancy arose prior to the amendment in Rules would not be relevant as the consideration for promotion was after the amendment of the Rules. Geeta Devi was not eligible for promotion under the amended Rules as her previous service was not on regular basis.
10. In view of the said fact, we find that the order of the High Court suffers from patent illegality. Thus the same is set aside. The writ petition filed by the respondent-Geeta Devi is dismissed. The appellant – Benu Bajaj shall be given all financial benefits, if any, which accrues to her as the Head of the Department. On the other hand, Geeta Devi shall be considered for promotion, if any, in accordance with law. However, no recovery from Geeta Devi be made on account of the financial benefits given to her as she has discharged duties of higher responsibility, in view of the judgment in ‘Smt. P. Grover v. State of Haryana’ reported in (1983) 4 SCC 291.
11. The appeals are allowed in above terms.
12. Pending application(s), if any, also stand disposed of.
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Civil Appeal No(s). 10005-10006/2010
Benu Bajaj.….Appellant(s)
v.
The State of Haryana & Ors.….Respondent(s)
WITH
C.A. No. 10004/2010 (IV)
(FOR ON IA 65400/2010)
Date : 20-04-2022 These appeals were called on for hearing today.
(Before Hemant Gupta and V. Ramasubramanian, JJ.)
For Parties(s) Mr. Siddharth Batra, AOR
Ms. Archana Yadav, Adv.
Ms. Shivani Chawla, Adv.
Mr. Chinmay Dubey, Adv.
Mr. Rajeev Tyagi, Adv.
Mr. Atishi Dipankar, AOR
Mr. Alok Sangwan, Sr. AAG-Haryana
Mr. Anurag Kulkarni, Adv.
Mr. Sanjay Kumar Visen, AOR
Mr. Ashok K. Mahajan, AOR
Mr. R. C. Kohli, AOR
UPON hearing the counsel the Court made the following
ORDER
13. The appeals are allowed in terms of the signed order.
14. Pending application(s), if any, also stand disposed of.
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