AI Drafter 
TaxTMI 
TaxTMI 
2009 (5) TMI 941
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.... in challenge. Rule 3 of these Rules dealt with joint inter-se seniority of confirmed employees in categories of equal status posts. There was a joint seniority list for three categories of employees, they being:- (1) Superintendents (2) Court Masters (3) Private Secretaries. Rule 7 provided the mode of appointment. It provided that the appointment to the post of Assistant Registrar could be made by selection on merit from confirmed officers of categories 5, 6 and 7 of Class I mentioned in Schedule I. These categories were none other, but the Superintendents, Court Masters and Private Secretaries, meaning thereby that these were the feeder posts to the post of Assistant Registrar. The last appointment to the post of Assistant Registrar under the said Rules of 1972 was made on 1.6.1993. In the year 1994, 5 v....
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.... the Superintendents and Court Masters. This representation was directed to be placed before the same Committee. On 10.5.1995, the Committee recommended that suitable amendment should be made to the Rules and also noted that if the present vacancies were allowed to be filled on the basis of the existing Rules and the interviews already held, it would lead to a lot of frustration amongst the Superintendents/Court Masters. The Committee, therefore, reiterated its earlier recommendation that a quota should be provided for each feeder category. The recommendations were approved by the Hon'ble Chief Justice of that Court. Thereafter, the draft amendments were considered by the Committee. Those amendments were recommended to be effective from 1.7.1993, as the last appointment to the post of Assistant Registrar was made only on 1.6.1993. On 7.8.1995, the Hon'ble Chief Justice of that Court approved the amendment to the Rules, so suggested with retrospective effect from 1.7.1993. By that amendment, existing Rule 7 was amended and it was provided that the first vacancy in the post of Assistant Registrar would be filled from Private Secretaries and the second and third vacancies woul....
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....ht in favour of the Writ Petitioners. It is further pointed out by the Learned Senior Counsel that the whole exercise was bonafide and taken with the sole objective of avoiding injustice to a particular class of employees like Superintendents/Court Masters in comparison to the Private Secretaries. 4. As against this, Shri Shrish Kumar Mishra, Learned Counsel appearing on behalf of the respondents pointed out that the amendments and more particularly, the retrospective effect given thereto, completely annihilated the vested rights for being considered for the promotion. The argument of Shri Mishra was that in 1994 interviews, one of the Writ Petitioners was called, the interviews were also held and it was at that juncture, that the High Court chose to change the parameters of the selection, which was totally incorrect. He further pointed out that the said amendments resulted in completely wiping out the chances of one of the Writ Petitioners particularly and the Private Secretaries generally for being considered for the promotion, which was a fundamental right under Articles 14 and 16 of the Constitution of India. According to the Learned Counsel, therefore, the said amendments w....
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....nbsp; rotation in the following manner:- (a) First vacancy shall be &nb....
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.... filled in from the officers of categories 5 & 6 of Class II mentioned in Schedule &nbs....
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.... in Schedule I (Private Secretary) and other jointed seniority list of &n....
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.... Shri Mishra, Learned Senior Counsel appearing on behalf of the respondent, very fairly stated that the respondents were not subscribing to some uncharitable remarks in the judgment regarding the amendment process, as well as, the interviews, which remarks were also directed against the Committee formulated by the Hon'ble Chief Justice of that Court and Chief Justice himself. It is unfortunate that such remarks have been passed. The Learned Counsel submitted that the respondent did not question the bonafides in the matter. In that view, we will leave the matter at that. 10. The only question that has remained to be decided is as to whether because of the retrospective nature of the amendment, the amendment itself could be invalidated to the extent of retrospectivity. In our opinion, the answer is negative. The High Court has mainly relied on the reported decision in 1997(6) SCC 623 Chairman, Railway Board & Ors. Vs. C.R. Rangadhamaiah & Ors. and more particularly, para 24 thereof. Shri Mishra, Learned Counsel for the respondents also very heavily relied on this decision. The said para 24 is as follows:- "24. In many of these decision the expressions "vested rights" or "ac....
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.... a right of employee but merely being considered, in itself, is not a benefit as it may or may not result in the selection or promotion of an employee and hence it is in the nature of a chance. A mere chance of promotion being affected by amendment is in our opinion inconsequential. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of employer. 12. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee. In the present case, it is not as if the concerned Writ Petitioner No. 8 was altogether denied the benefit of consideration for ever. He was undoubtedly considered later on and was promoted also. Therefore, it is incorrect to say that the amendment had the effect of denying him the benefit of consideration, which was available to him. He did continue with that benefit and was actually benefited under the same. 13. This is apart from the fact that the concept of consid....
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....ention. According to the Learned Counsel, the denial of consideration was writ large, particularly in respect of the Writ Petitioner No. 8 since he was actually called for interview in the year 1994, but not in 1995, after the amendments were made applicable retrospectively. It was pointed out that a particular individual, after the amendments, was pushed back substantially. The Learned Counsel also grudged that even when the interviews were conducted in 1994, yet no appointments were made and instead, the Committee recommended framing of fresh Rules with the result that some persons who were the Private Secretaries were denied the chance of being considered for promotion. The Learned Counsel feebly complained against this and tried to address us that the recommendations of the Committee should have been accepted by the Hon'ble Chief Justice of that Court and no amendments should have been made, affecting the rights of those who were interviewed in 1994. At this juncture itself, we must make it clear that such was not the challenge. We have already clarified that it is difficult to find out any lack of benefits on the part of either the Committee or the Hon'ble the Chief Ju....
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.... pertained to the benefits which were already made available. We have, in the earlier paragraphs, already explained this concept. 18. The High Court has relied on a decision in S.B. Mathur Vs. Chief Justice of Delhi (cited supra). Very significantly, this decision also related to the selection to the same post of Assistant Registrar or the same three categories with which we are concerned here. There, the Writ Petition was filed by the Superintendents, objecting to their being treated on par with Private Secretaries and the Court Masters and being included in the joint seniority list alongwith them for the purposes of promotion to the next higher post of Assistant Registrar. It was submitted that the three categories could not be treated as equal status posts, as the duties etc. for all the three posts were different. That challenge was repelled by this Court by holding that it was not necessary that the duties must be same. The Court held that for treating the certain posts as equated posts or equal status posts, even the sources of recruitment need not be the same nor the qualifications for appointment have to be identical. The Court held that all that was reasonably required ....
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..... In our opinion, the observations are erroneous. True it is that in case of S.B. Mathur Vs. Chief Justice of Delhi (cited supra), this Court came to the conclusion that the Rules and more particularly, the Rule regarding equal status of the three categories were found to be valid Rules, however, to express that any right to combined seniority list was created thereto, is completely incorrect. There is no such right. What was found by this Court was that the Rule for the combined seniority list was valid and nothing more. There was no question of any right to combined seniority list. Further, there was no question of any promotional opportunities becoming crystallized. As we have explained earlier, the promotional opportunities never became crystallized. What can be crystallized is a factum of promotion itself and not a chance of promotion. Last but not the least, there was no mandamus issued by this Court in the aforementioned judgment. Completely erroneous observation has been made that a mandamus was issued by this Court and that the same could not be nullified by resorting to the Rule making power by respondent Nos. 1 & 2 (therein) since there was no change in the circumstances....
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....mmission and & Ors. reported in 1990 (3) SCC 157, the Court was considering the right of the candidates to be considered. The question in that case was that as to which Rules were applicable, particularly, when there were amendments in the Rules after the advertisement was issued. The Court clearly held that under such circumstances, normally the existing Rules on the date of advertisement would be applicable, however, if there is an amendment in the Rule with retrospective effect, then it would be the amended Rules, which would be applicable. The Court observed that it was on the date of the advertisement that the right of the candidate crystallizes. However, the Court observed that he had no absolute right in the matter. The Court further observed:- "............If the Recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules." The Court also observed that:- "a candidate, on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the ter....