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Bhagirathdan and anr. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition Nos. 1055 and 1056/81
Judge
Reported in1984WLN59
AppellantBhagirathdan and anr.
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredIn Gari Kapasi v. Subbaiah Chowdhary
Excerpt:
.....given effect--held, petitioners possess qualifications and ere eligible for promotion to posts of deputy drilling engineer.;the provisions of rule 9 and sub-rule (11 a) of the rules relating to the determination of vacancies and the matter of promotion consequent there to have not been given effect to till now by the appointing authority. the petitioners are eligible for promotion to the posts of deputy drilling engineer as they possess the necessary qualification and experience as laid down in schedule 'i' appended to the rules.;(b) rajasthan mines and geological service rules, 1960 - rules 9 and 24(11 a) & sch. i and interpretation of statutes--amendment retrospective or prospective--test of--nothing to construe that amendment be construed retrospectively-held, amendment made..........untainted record of service at their credit. the next post of promotion in the cadre is that of deputy drilling engineer. the appointment to these posts are made cent per cent by promotion from amongst assistant mechancial engineers and assistant drilling engineers. two posts of deputy drilling engineers fell vacant on september 30, 1977. under the rajasthan mines and geological service rules, 1960 (briefly referred to as 'the rules' hereafter), the appointing authority viz. the state government is to determine the vacancies and make promotions as laid down in part iv of the rules. both the petitioners are qualified to be promoted to the post of deputy drilling engineers but the state government did not make the promotion and charge of the vacant posts of deputy drilling engineers was.....
Judgment:

S.S. Byas, J.

1. Since these two writ Petitions under Article 226 of the Constitution are based on identical grounds and raise common questions of Saw, they were heard together and are decided by a single judgment. The matter relates to the promotion of the petitioners.

2. As per aver nents disclosed in the petition, the petitioners hold the Bachelor's Degree in Mechenical Engineering. Petitioner Bhagirathdan was appointed as Assistant Engineer in the State Woollen Mills, Bikaner on Julv 18, 1972 and subsequently when declared surplus, he was appointed as Assistant Mechanical Engineer on December 12, 1975 in the Department of Mines and Geology. The other petitioner Himmatsingh was appointed as Assistant Mechanical Engineer on September 25, 1973 in the department of Mines and Geology. Both the petitioners are holding these posts with clean and untainted record of service at their credit. The next post of promotion in the cadre is that of Deputy Drilling Engineer. The appointment to these posts are made cent per cent by promotion from amongst Assistant Mechancial Engineers and Assistant Drilling Engineers. Two posts of Deputy Drilling Engineers fell vacant on September 30, 1977. Under the Rajasthan Mines and Geological Service Rules, 1960 (briefly referred to as 'the Rules' hereafter), the Appointing Authority viz. the State Government is to determine the vacancies and make promotions as laid down in Part IV of the Rules. Both the petitioners are qualified to be promoted to the post of Deputy Drilling Engineers but the State Government did not make the promotion and charge of the vacant posts of Deputy Drilling Engineers was got delivered to respondents Sagatsingh and Mahendrasingh Chouhan, who are much junior to the petitioners and are even rot qualified to work as Deputy Drilling Engineers. It was done so a device to withhold the promotion to the petitioners. It was averred that it was incumbent on the appointing authority to determine each year the number of vacancies anticipated during the following twelve months and thereafter to take steps for promotion. Rule 9 of the Rules is very specific in this regard. Rule 9 of the Rules is parallel and analogous to rule 9 of the Rajasthan Medical and health Service Rules, 1963 and rule 9 of the Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954. Rule 9 of these Rules has been held mandatory by this Court in two cases. The State Government thereafter amended Rule 24 A of the Rules and inserted sub-rule (11 A) therein, giving effect to the two decisions of this Court. Despite that, the State Government did not follow these mandatory provisions of the rules and the matter of promotion was not taken into consideration. The petitioners approached the State Government to redress their grievances but the attempt proved abortive. The reliefs claimed are; (1) the State Government be directed to consider the case of petitioners for promotion to the posts of Deputy Drilling Engineer as and when the vacancies arose in the relevant year and (2) in case, both the petitioners are thereafter found suitable, they be promoted to the posts of Deputy Drilling Engineer with effect from the date, the vacancies occurred with all consequential benefits.

3. The petitions were resisted by the respondents. The factual aspect as alleged by the petitioners was not denied. The petitions were contested on the ground that the matter of re-organization of the Drilling Wing was under active consideration of the State Government. As such, the question of promotion was not considered. During the pendency of the writ petitions, amendment was intioduced in Schedule 'I' appended to the Rules wherein the post of Deputy Drilling Engineer was to be filled by promotion only from amonst the Assistant Drilling Engineers. The provision of Assistant Mechnical Engineer for promotion to the post of Deputy Drilling Engineer was deleted. Due to this amendment, it was contended by the respondents, that the petitioners are no more eligible for promotion to the posts of Deputy Drilling Engineer.

4. It would be proper to briefly notice the relevant rules. Rule 9 of the Rules as it now stands after 6-10-1979 reads as under:

DETERMINATION OF VACANCIES:- (1) (a.) Subject to the provisions of these rules, the Appointing Authority shall determine every year the number of existing vacancies and those anticipated during the following twelve months and the number of persons likely to be appointed to the service by each method. The next determination of vacancies shall be done just before the expiry of twelve months of the lasts determination of vacancies.

(b) In calculating the actual number of vacancies to be filled in by each method on the basis of percentage prescribed in the Schedule, the Appointing Authority shall adopt an appropriate continuous cycle order to correspond with the proportion laid down in the Schedule by giving precedence to promotion quota.

(2) The Appointing Authority shall determine every year the number of existing vacancies and those anticipated in next twelve months which are to be filled by promotion of person already in the service.

(3) The Appointing Authority shall also determine the corresponding vacancies of earlier year, if any, yearwise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they ware required td be filled in accordance with sub-rule (2).

Amended Sub-rule (HA) of Rule 24A of the Rules runs as under:

(II A) If in any subsequent year, after promulgation of these rules, vacancies relating to any earlier year are determined under Sub-rule (3) of rule mentioned in Column 3 of the Schedule which are required to be filled by promotion, the Departmental promotion Committee shall consider the case of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Departmental Promotion Committee is held and such promotions shall be governed By the rule in force at the time, the meeting of the Departmental Promotion Committee is held. The person who has been so promoted shall not be entitled to claim any arrears of pay or re-fixation of his pay or to count his service experience for promotion to higher post for any period during which he has not actually performed the duties of the post to which he Has been promoted.

5. It may be re called that rule 9 of the Rules as it stood before the amendment on 6-10-1979 was analogous and parallel to rule 9 of the various Rules alluded to above, which came for judicial scrutiny before this Court in two case; (1) M.P. Agrawal v. State of Rajasthan (1978 WLN (UC) 383) & (2) H.K. Hingorani v. State of Rajasthan & Others (1979 WLN (UC) 421).

6. Rule 9 was held mandatory and no clubbing of vacancies of the earlier years with those of the subsequent years was held permissible for promotion. In M.P. Agrawal's case (supra), it was observed:

While making appointments on vacancies which arose in an earlier year, the Government will take into consideration of eligibity as were present in the year in which the vacancies arose and treat the said appointments as pertaining to the year or years in which the vacancies arose for the purpose of seniority.

7. The same view was reiterated in H.K. Hingorani's case (supra). It may be stated that the State Government introduced Sub-rule (11 A) in Rule 24A of the Rules in order to give statutory recognisation to the view expressed in M.P. Agrawal's case (supra). The language employed in Sub-rule (1 A) of Rule 24A admits no ambiguity.

8. It is abundantly clear and there is no controversy about it that in the Instant case, the provisions of rule 9 and Sub-rule (II A) of the Rules relating to the determination of vacancies and the matter of promotion consequent thereto have not been given effect to till now by the appointing authority. The petitioners are eligible for promotion to the posts of Deputy Drilling Engineer as they possess the necessary qualification and experience as laid down in Schedule 'I' appended to the Rules. The case of petitioners* promotion has not been considered as yet. The petitions should, therefore, be allowed on this very short ground.

9. The petitions are, however, sought to be defeated by the respondents on the ground that the petitioners are no more eligible for promotion to the posts of Deputy Drilling Engineer because of the amendment introduced in Schedule 'I'. It was agrved that before 11-8-82, both the Assistant Drilling Engineer and Assistant Mechnical Engineer possessing the required eligibility were to be considered for promotion to the post of Deputy Drilling Engineer. But as the matter now stands, only the Assistant Drilling Engineers are eligible for promotion to the post of Deputy Drilling Engineer. The provision relating to the Assistant Mechnical Engineer has been deleted. As such, the petitioners have no case for promotion to the post of Deputy Drilling Engineer. On the other hand, it was contended by Mr. Mirdul appearing for ths petitioners that the said amendment introduced on 11-8-82 is not retrospective but prospective only. Since, the matter of promotion is to be considered in accordance with the provisions of Sub-rule (11A) of Rule 24A of the Rules, the petitioners have a right to be considered for promotion against the vacancies existing on or before 11-2-82. I have bestowed by thoughtful consideration to the respective submissions.

10. Schedule 'I' appended to the Rules relates to the qualification and experience required for promotion etc. It also lays down the channel as well as the posts from which the appointment by promotion is to be made. Under miscellaneous Heading at serial No. 6, it has been laid down that the post of Deputy Drilling Engineer is to be filled 100% promotion from amongst the, (l) Assistant Drilling Engineer and (2) Assistant Mechanical Engineer having the qualification and experience mentioned therein. This was the position before 6-11-82.the State Government introduced the following amendment at serial No. 6 on 6-11-82.

In Schedule 'I' appended to the said Rules, for the existing entries in Column 5 against Serial No. 6, under the heading 'Miscellaneous' the following shall be substituted, namely

Assistant Drilling Engineer.

11. The pertinent question, therefore, is whether the said amendment is retrospective so as to debar the petitioners from being considered for promotion to the post of Deputy Drilling Engineer.

12. The general rule of interpretation is that a new law ought to effect the future and not the past' Nova constitutis futuris forman imponore debet? Non practeritis'. It is thus a general rule that where a statute (which inclu-des the rule) is amended altering certain provisions, unless the language is expressly to the contrary, it is to be taken as intended to apply to a State of facts coming into sentence after the amendment. The amendment is to be taken prospective unless there is something on the face of the amendment putting it beyond doubt that the legislature (which includes the rule making authority) meant it to operate retrospectively. As such the ordinary rule is that the rights of litigants are to be governed by the law in force when the action was commenced. Therefore, when the law is altered during the pendency of an action, the rights of the parties are to be decided according to thsalaw as it existed when the action was begun unless the amendment shows a char intention to vary such rights. The intention of the law making authority to give retrospective effect to the amendment, whereas vested rights are taken away or impaired, must appear in express terms or by necessary implication. In Gari Kapasi v. Subbaiah Chowdhary AIR 1979 SC 540, their Lordships of the Supreme Court observed

The golden rule of construction is that in the absence of anything in the enactment to show that it is to have retrospective operation, it can not be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.

13. In the instant case, there is nothing to indicatse that the amendment should be construed as retrospective. We generally come across the case that when an amendment is intended to be retrospective in operation, the. phrase 'Deemed always to have been susbstituted' is used to give a clear expression to the intention that such an amendment would also be retrospective in operation. There is no such phrase in the said amendment. As such, I am unable to accept the contention of the learned Counsel for the respondents that the amendment is retrospective in operation. The amendment, therefore, does not debar the petitioners from being considered for promotion against the vacancies existing before 6-11-1982. The petitioners thus succeed.

14. In the result, the writ petitions are allowed. Respondents No. 1 and 2 viz State of Rajasthan and Director, Mines and Geology, Government of Rajasthan, Udaipur are directed to fill the vacancies for the post of Deputy Drilling Engineers by making selection from amongst persons, who were eligible for consideration at the time when the vacancies have occurred keeping in view the provisions of rule 9 and Sub-rule (11) of Rule 24A and other relevant rules of the Rajasthan Mines and Geological Service Rules, 1960. The parties are left to bear their own costs.


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