JUDGMENT M. Katju and Prakash Krishna, JJ.
1. The present writ petition has been filed for a writ, order or direction commanding the respondents to forthwith consider the petitioner for promotion as Assistant Regional Transport Officer against vacancies of the year 1999-2000 and to permit the petitioner to function as Assistant Regional Transport Officer and to pay him salary accordingly.
2. On 13.5.1981, the petitioner was appointed as Assistant Regional Transport Inspector (Technical) and was given ad hoc promotion on 1.1.1988 as Regional Inspector (Technical). By the order dated 27.4.1995, the Transport Commissioner granted promotion to the petitioner as Regional Inspector (Technical) without making any reference to the U. P. Public Service Commission. The aforesaid promotion was granted to the petitioner when the U. P. Public Service Commission (Limitation and Function) (13th Amendment) Regulation, 1994, was in force. The promotions in pursuance of the said amended Regulation of 1994 were excluded from the purview of the Public Service Commission.
3. A Division Bench of this Court in the case of Susheel Chandra Srivastava v. State of V.P. and Ors., 1996 (1) ESC 936, held that the aforementioned 13th Amended Regulation, 1994 is ultra uires the Constitution of India and hence it struck down the said amendment. Thereafter the petitioner was granted promotion to the post of Assistant Regional Transport Officer by the order dated 1st June, 2001 with effect from 23rd January, 1999, vide Annexure-5 to the writ petition. The petitioner claimed that he should be considered for promotion as Assistant Regional Transport Officer in view of the service Rules, namely, U. P. Transport Service Rules, 1990 (filed as Annexure-6 to the writ petition). Rule 5 of the service rules provides the source of recruitment of Assistant Regional Transport Officer. Rule 5 (1) (i) provides 50% by promotion through the Commission from amongst the permanent Passenger/Goods Tax Officer and Technical Inspectors/ Regional Inspectors (Technical), who have put in five years' continuous service as such. The petitioner claims that in view of the aforesaid Rule, the respondent should consider him for promotion.
4. The respondents have contested the claim of the petitioner on the plea, inter alia, that the petitioner was given promotion to the post of Regional Inspector (Technical) with effect from 23rd January, 1999 and as such the petitioner has not completed five years' service as permanent Regional Inspector (Technical) and is not entitled for promotion in view of Rule 5 of the service rules. It has further been stated that the U. P. Public Service Commission (Limitation of Function) 13th Amendment) Regulation, 1994, having been declared ultra vires by this Court, the order of the Transport Commissioner dated 27.4.1995, granting promotion to the petitioner has become invalid.
5. We have heard Sri Ashok Khare, learned senior advocate for the petitioner and Sri Pushpendra Singh for the respondents.
6. The controversy in the present case revolves around the interpretation of Rule 5 of the U. P. Transport Service Rules, 1990 copy of which is Annexure-6 to the writ petition. The relevant portion of Rule 5 is quoted below :
"5. Source of Recruitment.--Recruitment to the various categories of posts in the service shall be made from the following sources :
1. Assistant Regional Transport Officer.
1. Fifty percent by promotion through the Commission from amongst the permanent passenger/Goods Tax Officer and Technical Inspectors/ Regional Inspectors (Technical) who have put in at least fiveyears continuous service as such."
7. A perusal of the aforesaid rule shows that there are two requirements which have to be fulfilled for promotion to the post of Assistant Regional Transport Officer. Firstly, the candidate should be a permanent Passenger/Goods Tax Officer/Regional Inspector (Technical), and secondly such person should have put in at least five years continuous service as such. Sri Ashok Khare argued that the petitioner fulfils both the conditions. He submitted that the petitioner was given promotion to the post of Regional Inspector (Technical) on 27.8.1995 and computing the length of service from 27.5.1995, he has put in more than five years continuous service on the post of 'Regional Inspector (Technical), and secondly, that he is a permanent employee. He further submitted that notwithstanding the striking down of the 13th Amendment Regulation, 1994, for the purposes of the aforesaid Rule, his length of service as Regional Inspector (Technical) should be counted from 27.4.1995 as the said order was never cancelled or revoked.
8. On the other hand, it was submitted on behalf of the respondents that the petitioner was given promotion order dated 27.4.1995 in view of the 13th Amendment Regulation, 1994, which was subsequently held to be ultra vires the Constitution of India. The petitioner was granted regular promotion to the post of Regional Inspector (Technical) vide order dated 6.1.2001 w.e.f. 23.1.1999 vide Annexure-5 to the writ petition. Thus, having completed only one year and three months service as permanent Regional Inspector (Technical), the petitioner is not eligible for promotion to the post of Assistant Regional Transport Officer.
9. After considering the submission of both the counsel, we are of the opinion that the phrase "as such" at the end of Rule 5 (1) (i) of the U. P. Transport Service Rules, 1990, is very important. In our opinion, the phrase "as such" qualifies both the requirements, i.e., the person must be a permanent appointee as Passenger/ Goods Tax Officer, etc. and also he must have completed at least five years continuous service as such, i.e., as permanent appointee. In the present case, if the length of the service of the petitioner is counted from 23.1.1999, he has not completed five years continuous service as permanent Regional Inspector (Technical). The use of the words 'as such' in the Rule indicates that to be eligible for promotion as Assistant Regional Transport Officer, the person should be a permanent Regional Transport Inspector for five years.
10. Learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court in State of Madhya Pradesh v. Laxmi Shankar, AIR 1979 SC 979. The said ruling has no application to the facts of the present case. In that case, the Supreme Court considered an entirely different rule. In that case, it was held that an officiating incumbent discharges the function and duties of the post, and while calculating the experience, the period during which the person officiated should also be taken into account. The relevant rule in that decision is quoted in para 6 of the decision, and it may be noted that the words 'as such' are not mentioned in the said Rule. Hence, the decision is clearly distinguishable.
11. The next decision relied upon by the petitioner is Dr. Asim Kumar Bose v. Union of India and Ors., AIR 1983 SC 509. The said ruling has also no application to the facts of the present case. It was held therein that under the relevant rules. Dr. Asim Kumar Bose was working as Specialist Grade II in a teaching hospital belonging to the Central Health Service and was eligible for promotion as a Professor of the concerned speciality. It was further held that it is not necessary that the experience must be gained on a regular appointment. Thus, both the aforesaid two decisions are distinguishable. In the present case, the petitioner got permanent promotion w.e.f. 23.1.1999 to the post of Regional Inspector (Technical). His earlier appointment in the service was invalid as the rule was declared ultra vires. The effect of striking down of 13th Amendment Regulation is that it never came on the statute book and is of no consequence to anybody. The said rule was struck down being arbitrary.
12. Lastly, it was submitted that the earlier order of promotion dated 27.4.1995, not having been cancelled by any order, the petitioner shall be deemed to have been granted regular promotion from that date for the purposes of the promotion. Since the promotion dated 27.4.1995 was made under the 13th Amendment Regulation, 1994, which was subsequently declared ultra vires, the petitioner cannot get any benefit from the same.
13. We find no merit in this writ petition. The petition is dismissed.