Hon'ble Ved Prakash Vaish,J.
(Delivered by Hon'ble Manoj Misra, J.) The instant petition relates to the claim of the petitioner for promotion on the post of Joint Registrar in the Allahabad High Court Establishment (in short the Establishment).
To understand the controversy better, it would be appropriate to have a brief look at the facts and the service rules relevant to the claim of the petitioner. The service conditions of the petitioner are indisputably regulated by Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (in short the Rules, 1976). Rule 20 of the Rules, 1976 provides for source of recruitment to various Class I posts in the Establishment. Rule 20(d) of the Rules, 1976 concerns with the source and method of recruitment to Class-I post of Joint Registrar with which we are concerned. Prior to the amendment carried out by Allahabad High Court Officers and Staff (Condition of Service and Conduct) Amendment Rules, 2014, Rule 20 (d) of the Rules, 1976 read as follows:-
"Rule 20 (d) Joint Registrar By deputation of an Officer of the U.P. Higher Judicial Service or by promotion from amongst the Deputy Registrars on Seniority, subject to suitability.
Notwithstanding anything contained hereinafter the incumbent to the post of Joint Registrar must be a Law Graduate of a Recognised University:
"Provided, however, that where there are Deputy Registrars available and who are not Law Graduates from a Recognised University, their candidature be also considered for promotion to the post of Joint Registrars provided such Deputy Registrar has undergone training conducted by J.T.R.I., Lucknow to improve their knowledge of law, required for effective functioning of Joint Registrar and after successful training from J.T.R.I., Lucknow for the period to be prescribed by the Chief Justice (03 months) be also treated as eligible for being considered for promotion."
Note-- To assess the minimum merit, marks obtained in ACR & Interview shall be considered. Minimum merit required for promotion from the post of Deputy Registrar to that of Joint Registrar shall be securing 65% marks in ACR & 45% marks in Interview."
The petitioner was appointed by way of promotion on the post of Deputy Registrar on 29.05.2013. By Office Memorandum dated December 13, 2013 as many as 25 Deputy Registrars were informed to appear before the Promotion Committee (in short the Committee) for consideration of their promotion on the post of Joint Registrar. The petitioner (Lalji Singh) was also one of those 25 Deputy Registrars who were informed about the interview date i.e. 17.12.2013. After carrying out the interview process, the Committee submitted a report dated 17.12.2013 to be placed before Hon'ble Chief Justice. The Committee in its report took the view that there was desirability to provide for a criteria of having minimum experience, of at least one or two years, in the feeder cadre post before a candidate is considered eligible for promotion. On the report submitted by the Committee, Hon'ble Chief Justice, vide order dated 19.12.2013, not only approved the report but also remarked that "the post of Joint Registrar is a senior and responsible post in the administration. A person should have sufficient experience in the post of Deputy Registrar to gain the required knowledge. A period of two years is in my view essential and will bear a rational nexus with the object of securing efficiency of administration." With the aforesaid remark and decision, Hon'ble Chief Justice directed that the matter be placed before the Rules Committee for considering whether an amendment is required.
In the above backdrop, Rule 20(d) of the Rules, 1976 was amended, with immediate effect, vide notification dated February 3, 2014 which was published in the Official Gazette on 08th February, 2014. The amended Rule 20(d) of the Rules, 1976 is extracted herein below:-
"Rule 20 (d) Joint Registrar By deputation of an Officer of the U.P. Higher Judicial Service or by Promotion from amongst the Deputy Registrars, having a minimum of two years of experience on Seniority, subject to suitability.
Notwithstanding anything contained hereinafter the incumbent to the post of Joint Registrar must be a Law Graduate of a Recognised University:
"Provided, however, that where there are Deputy Registrars available and who are not Law Graduates from a Recognised University, their candidature be also considered for promotion to the post of Joint Registrars provided such Deputy Registrar has undergone training conducted by J.T.R.I., Lucknow to improve their knowledge of law, required for effective functioning of Joint Registrar and after successful training from J.T.R.I., Lucknow for the period to be prescribed by the Chief Justice (03 months) be also treated as eligible for being considered for promotion"
Note-- To assess the minimum merit, marks obtained in ACR & Interview shall be considered. Minimum merit required for promotion from the post of Deputy Registrar to that of Joint Registrar shall be securing 65% marks in ACR & 45% marks in Interview."
As by the amended provision of Rule 20(d) of Rules, 1976 requirement of having minimum experience of two years as Deputy Registrar was introduced as an essential qualification for promotion on the post of Joint Registrar, vide Office Memorandum dated 05th February, 2014, the name of the petitioner (Lalji Singh) was deleted from the list of eligible Deputy Registrars who were called for interview on 15.02.2014, vide Office Memorandum dated 03.01.2014, to be considered for promotion on the post of Joint Registrar At this stage, it would be appropriate to observe that the petitioner (Lalji Singh) along with others had filed Writ-A No.45941 of 2013 with a prayer that appointment on the post of Joint Registrar by way of promotion may be made only from amongst such Deputy Registrars who possess a degree in law from a recognized University. It was prayed by them that Deputy Registrars who do not possess a degree in law be excluded from the zone of consideration. It appears, due to pendency of the aforesaid writ petition, the interview to be held on 15.02.2014 for selection was adjourned.
The aforesaid Writ-A No.45941 of 2013 was allowed vide order dated 06.03.2014 and a direction was issued that only those Deputy Registrars would be considered eligible for promotion on the post of Joint Registrar who have a degree in law from a recognized University. Against the decision of this Court dated 06.03.2014, a review application was filed which was dismissed by order dated 21.08.2015 and, thereafter, Special Leave Petition, which had been filed, was got dismissed as withdrawn vide order dated 07.12.2015.
It appears, on account of litigation noticed above, consideration for promotion on the post of Joint Registrar remained in abeyance and, in the meantime, on 31.07.2015 the petitioner retired on attaining the age of superannuation. However, as litigation got over upon withdrawal of the Special Leave Petition on 07.12.2015, Hon'ble Chief Justice, on 28.03.2016, directed that promotion from amongst eligible and suitable members of the feeding cadre to the post of Joint Registrar should not be held up further and an exercise be completed, expeditiously, by 31st March, 2016.
Pursuant to the order of Hon'ble Chief Justice dated 28.03.2016, the Promotion Committee met on 29.03.2016 and found three candidates, namely, Ramesh Prasad (Patel); Ashok Kumar Srivastava; and D.P.N. Tripathi, fit for promotion to the post of Joint Registrar. The recommendation of the Committee was put before Hon'ble Chief Justice and the same was approved on 30.03.2016.
At this stage, it may be noticed that the petitioner as well as few others had made joint representation dated 05.04.2014 for consideration of their promotion on the post of Joint Registrar in the light of the decision dated 06.03.2014 in Writ A No.45941 of 2013. However, since Rule 20(d) of the Rules, 1976, as amended in February, 2014, provided that a Deputy Registrar, to be eligible for promotion on the post of Joint Registrar, must have minimum experience of two years, the name of the petitioner, who was appointed on 29.05.2013 on the post of Deputy Registrar, and was therefore not eligible, was deleted from the list of candidates that were to be interviewed on 15.02.2014 for appointment on the post of Joint Registrar. But, in the meantime, as no consideration for promotion to the post of Joint Registrar from the post of Deputy Registrar took place and, in fact, it took place only in the month of March 2016, by which time the petitioner had already superannuated, the aforesaid joint representation of the petitioner and others was rejected by the Committee in its meeting dated 03.10.2016 by observing that since the petitioner had already retired by the date promotion was considered, hence, question of consideration of his promotion with retrospective effect does not arise, inasmuch as, no one has vested right to claim promotion from an earlier date, particularly, when no person junior to him had been promoted by the date he was in service. It was observed that right to be considered for promotion is available at the point when process of promotion is initiated by Employer. This resolution of the Committee was seen by Hon'ble Chief Justice on 18.10.2016.
In this petition, the case of the petitioner, as canvassed by his counsel, is that Sri D.P.N Tripathi, who had been promoted from the post of Deputy Registrar to the post of Joint Registrar, was junior to him, and since the petitioner had earned two years experience as a Deputy Registrar before the date of his superannuation, therefore he is entitled to be notionally promoted on the post of Joint Registrar, with effect from the date he became eligible, with all consequential benefits. It is also the case of the petitioner that the unamended Rule 20(d) of Rules, 1976 had not provided for minimum experience of two years in the feeder cadre post of Deputy Registrar to be eligible for promotion on the post of Joint Registrar therefore there was no legal justification to deny promotion to the eligible candidates, such as the petitioner, in the year 2013-2014. In nutshell, the case of the petitioner is that his right to be promoted to the post of Joint Registrar stood vested in him prior to his retirement and, therefore, notwithstanding that he had retired, he is entitled for notional promotion from retrospective effect. To obviate any technical difficulty, the petitioner, by seeking amendment in the petition, has also challenged the decision of the Committee, by which his representation for promotion has been rejected.
We have heard Sri Adarsh Singh for the petitioner; and Sri Sameer Sharma for the High Court; and have perused the record.
The contention of the learned counsel for the petitioner is that the State Government by Government Order dated 25th June, 1984 (Annexure No.6 to the writ petition) has provided that notional promotional benefits can be provided to even those who have retired notwithstanding that promotion was not considered before their retirement. It has been argued that in the year 2013-14 the petitioner along with others was called for interview for consideration of their claim for promotion but the Committee did not recommend promotion by suggesting that for appointment on the post of Joint Registrar there should be some minimum experience in the feeder cadre post. It has been submitted that such view of the Committee was not legally justified, inasmuch as, the Rules, 1976 did not provide for any such minimum experience. It has been submitted that though the Rules, 1976 were later amended in the year 2014 but the right to be considered for promotion had accrued prior to the amendment of the Rules, 1976 and therefore the petitioner's representation for promotion ought to have been considered on merits and not rejected on the ground that on the date when promotion was considered, the petitioner had already retired. In the alternative, it has been submitted that, even assuming that two years' experience on the feeder cadre post of Deputy Registrar was mandatory, since the petitioner attained two years' experience by 29.05.2015, that is before the date of his superannuation, the petitioner was entitled to be considered for promotion on the post of Joint Registrar, with effect from the date he completed two years' experience as Deputy Registrar, particularly when, admittedly, there were vacant posts available.
In support of his submission, the learned counsel for the petitioner has placed reliance on a Division Bench decision of this Court in Ram Chandra Bhati Vs. State of U.P.: 2014 (2) UPLBEC 1441, in which, by placing reliance on Government Order dated 25.06.1984, it was observed that notwithstanding retirement, notional promotion can be provided from the date of the vacancy.
Per contra, Sri Sameer Sharma, learned counsel for the High Court, submitted that the decision of this court in Ram Chandra Bhati's case (supra), by placing reliance on Government Order dated 25th June, 1984, was in the context where promotions were to be considered as per the U.P. Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 (in short the Rules, 1970). It has been submitted by him that Rules, 1970 are not applicable to the case of the petitioner inasmuch as service conditions of the petitioner are governed by Rules, 1976.
Sri Sharma pointed out that the Government Order dated 25th June, 1984 is to clarify the import of Rules 8, 12 and 21 of the Rules, 1970. It has been submitted by him that Rules 8, 12 and 21 of Rules, 1970 provides as follows:
"Rule 8- The appointing authority shall prepare a list of the senior-most eligible candidates containing names as far as possible in three times the number of vacancies subject to the minimum of eight:
Provided that, if recruitment is to be made for vacancies occurring during more than one year of recruitment, separate eligibility lists will be prepared in respect of each such year and in such a case while preparing the eligibility lists for second and subsequent years of recruitment, the number of candidates to be included in the eligibility lists shall be as follows:-
(a) for the second year.- the number according to the said promotion plus the number of vacancies in the first year.
(b) for the third year.- the number according to the said proportion plus the number of vacancies in the first and second year and so on:
Provided further that the candidates who are not considered suitable, prima facie, for promotion shall not be taken into account in calculating the said proportion and a note to the effect that they are not so considered shall be added against their names Rule12.- (1) The appointing authority shall in consultation with the Commission fix a date for selection:
Provided that the process of selection may spread over the dates more than once.
(2) In case the Commission or the appointing authority considers it necessary that all or any of the candidates included in the eligibility list or lists should be interviewed by the Selection Committee the appointing authority shall call such candidates or candidate, as the case may be, for the purpose on the aforesaid date or dates.
(3) The Selection Committee shall in each case consider the character rolls of the candidates and any other factor relevant in its opinion.
Rule 21.- Preparation of eligibility list.- (1) Except as otherwise provided in Rule 22, the appointing authority shall prepare a list of the senior most eligible candidates containing names, so far as may be, in the following proportion:-
For 1 to 5 vacancies.- 2 Times the number of vacancies subject to a number of 5 For over 5 vacancies.- 1.5 Times the number of vacancies subject to a minimum of 10:
(2) The provisions contained in proviso to Rule 8 shall mutatis mutandis apply in preparing an eligibility list under this rule.
(3) The rest of the procedure prescribed in Part III shall mutatis mutandis apply to promotion made under this part except that the select list referred to in Part III shall be prepared by the selection Committee in order of seniority subject to the rejection of unfit."
Sri Sharma submitted that in so far as Rules, 1976 are concerned, prior to insertion of Rule 19-B, with effect from 30.04.2014, there appeared no provision for yearly filling up of the vacancies. It has been submitted that after insertion of Rule 19-B in the Rules, 1976, although the appointing authority is to undertake the exercise of recruitment under the Rules on a regular basis at least once in a year for existing vacancies or vacancies likely to occur during the course of the year of recruitment but, for such recruitment, neither any date has been prescribed nor any such date is required to be notified by the appointing authority as is required by Rule 12 of the Rules, 1970.
Sri Sharma therefore contended that since the Rules, 1976 did not confer any right of automatic promotion to the post of Joint Registrar from the post of Deputy Registrar, upon obtaining two years experience as Deputy Registrar, and no date has been prescribed for consideration of such promotion, it is only when consideration for such promotion is made that the eligibility of a candidate is to be considered. As, admittedly, the consideration was made in the month of March, 2016, by which time the petitioner had already superannuated, the petitioner cannot claim any right for promotion with retrospective effect. He thus prayed that the petition be dismissed.
We have given our anxious consideration to the rival submissions and have carefully perused the record as well as the Rules that have been cited before us.
Before we proceed to examine the merit of the claim made by the petitioner, it would be apposite to examine the relevant provisions of the Rules, 1976. Part VI of the Rules, 1976 deals with sources and methods of recruitment to Class-I posts, which are as follows: Assistant Registrar; Deputy Registrar; Joint Registrar; Additional Registrar; Registrar and Registrar General. Rule 21 of the Rules, 1976 provides that the Chief Justice shall be the appointing authority in respect of all Class-I posts in establishment. Rule 20(d) governs appointment on the post of Joint Registrar. It provides that appointment on the post of Joint Registrar shall be by deputation of an officer of the U.P. Higher Judicial Service or by promotion from amongst the Deputy Registrars, having a minimum of two years of experience, on the basis of seniority, subject to suitability. It is further provided that the incumbent to the post of Joint Registrar must be a Law Graduate of a Recognized University: Provided that where there are Deputy Registrars available and who are not Law Graduates from a Recognized University, their candidature be also considered for promotion to the post of Joint Registrars provided such Deputy Registrars have undergone training conducted by J.T.R.I., Lucknow to improve their knowledge of law, required for effective functioning of Joint Registrar and after successful training from J.T.R.I., Lucknow for the period to be prescribed by the Chief Justice (03 months) be also treated as eligible for being considered for promotion. It is also provided by way of note that to assess the minimum merit, marks obtained in ACR and Interview shall be considered. Minimum merit required for promotion from the post of Deputy Registrar to that of Joint Registrar shall be securing 65% marks in ACR & 45% marks in Interview.
Part V-C was inserted in the Rules, 1976 with effect from 30.04.2014. By Part V-C, Rules, 19-A and 19-B were inserted in the Rules, 1976.
Rule 19-A deals with direct recruitment and therefore is not relevant for the case at hand.
Rule 19-B provides that the appointing authority shall undertake the exercise of recruitment under these rules (i.e. Rules, 1976) on a regular basis at least once in a year for existing vacancies or vacancies likely to occur during the course of the year of recruitment. Rule 2 (m) of the Rules, 1976 provides that year of recruitment means the period of twelve months commencing from the first day of July of a calendar year.
It has not been pointed out to us, nor we could find any, a provision in the Rules, 1976 which may provide that the appointing authority has to fix a date by which the appointments are to be made or are to be considered for the posts. The only guiding factor is in Rule 19-B of Rules, 1976 which provides that the appointing authority is to undertake the exercise of recruitment under the Rules on a regular basis at least once in a year for existing vacancies or vacancies likely to occur during the course of the year of recruitment. The year of recruitment has been defined in Rule 2(m) of the Rules, 1976 as the period of 12 months commencing from the first day of July of a calendar year.
As per the amended Rules, 1976, the petitioner fell in the zone of consideration for appointment on the post of Joint Registrar only upon obtaining two years experience as a Deputy Registrar, that is on 29.05.2015. The year of recruitment, as per Rule 2(m) of Rules, 1976, is a period of twelve months commencing from the first day of July of a calendar year therefore the petitioner was not eligible at the commencement of recruitment year starting from 1st July, 2014 though he could be considered eligible for appointment on the post of Joint Registrar in the recruitment year commencing 01st July, 2015. Under the Rules, 1976 the appointing authority was not under any obligation to conduct or complete recruitment process by or before any fixed date though, as per Rule 19-B of the Rules, 1976, it had to be completed at least once in a year, which, in the context of the present case read with the Rules, 1976, could be on any date in the next twelve months starting from 1st day of July, 2015. The record reflects that on 28.03.2016 Hon'ble Chief Justice directed that the recruitment be completed by 31.03.2016, pursuant to which, the Promotion Committee met on 29.03.2016 and made recommendation, which was accepted by Hon'ble Chief Justice on 30.03.2016. Seen in that light, the date notified by Hon'ble Chief Justice for completion of recruitment process became the date of consideration of all eligible candidates. As, on the date, when consideration for promotion was made, admittedly, the petitioner had retired from service and as such was no longer available in the feeder cadre, he could claim no right for the promotion post. Thus, keeping in mind that the Rules, 1976 do not provide for automatic promotion and also do not fix a particular date by which consideration of candidature for recruitment on various posts in the Establishment is to be made, the date notified by Hon'ble Chief Justice for completion of recruitment process, within the year of recruitment, which extends for a period of next 12 months starting from 1st day of July, became the date of consideration of all eligible candidates for promotion and since the petitioner, on that date, was not available in the feeder cadre, having superannuated, he cannot claim that notwithstanding his retirement he be considered for notional promotion.
It is well settled that in absence of service rules to the contrary, no one has vested right to claim promotion from a particular date or from retrospective effect, particularly, when no person junior to the claimant has been promoted.
As, in the instant case, no person junior to the petitioner was considered for promotion much less promoted while the petitioner was in service, and the consideration for promotion to the post of Joint Registrar was made after the petitioner had superannuated, the petitioner would have no right to claim promotion with retrospective effect.
The reliance placed by the learned counsel for the petitioner on the decision in Ram Chandra Bhathi's case (supra) is misconceived because in that case the petitioner concerned was considered for promotion for the vacancy which had fallen vacant before his retirement, as per the Rules, 1970, and was also recommended for promotion, with effect from the date of vacancy, after his retirement, but the recommendation was not acted upon and, therefore, the court by relying upon a previous decision of this Court in the context of the Rules, 1970 as also Govt. Order dated 25.06.1984 had directed for notional promotion with effect from the date of vacancies. In the instant case, the candidature of the petitioner was considered along with other candidates in the year 2013 but the Committee took the view, which was approved by Hon'ble Chief Justice, that to be considered eligible for promotion to the post of Joint Registrar from the post of Deputy Registrar the incumbent must have a minimum experience of few years and, therefore, as none of the candidates were found to have experience, no recommendation was made. Thereafter, the Rules, 1976 were amended providing for a minimum of two years experience in the feeder cadre post of Deputy Registrar to be considered eligible for promotion on the post of Joint Registrar. In Bhati's case (supra), before his retirement, the petitioner concerned had matured his claim to be considered for promotion, whereas, in the instant case, the petitioner though was earlier considered, under the unamended Rules, 1976, but was not found fit, because he had no experience, and, thereafter, post amendment of the Rules, 1976, before the date of consideration for promotion could arrive, in the recruitment year starting from 1st July 2015, the petitioner superannuated from service. Hence, claim of the petitioner to be considered for promotion could not mature as it had in Bhati's case (supra).
The contention of the learned counsel for the petitioner that since under the unamended Rules, 1976 there was no requirement to have minimum experience therefore refusal to promote on ground of lack of experience is arbitrary and unjustified, is unacceptable, inasmuch as, the unamended Rule 20(d) of the Rules, 1976 provided, as an alternative, that the post of Joint Registrar could be filled by promotion from amongst the Deputy Registrars on seniority, subject to suitability. In absence of any specific provision as to what could be regarded suitable, for efficiency of administration, criteria of suitability for the post could be laid by the Appointing Authority that is the Chief Justice. Hence, if on report of the Committee, Hon'ble Chief Justice took a decision that minimum experience on the feeder cadre post would be necessary for shouldering the responsibility of the post of Joint Registrar, it cannot be said that the decision was arbitrary or against the Rules, 1976.
For the reasons recorded above, we find no merit in this petition. The same is accordingly dismissed. There is no order as to costs.
Order Date :- 17.9.2018/AKShukla/-