STATE OF U.P. & ORS.versusMAHESH NARAIN ETC

                          [2013] 4 S.C.R. 534


A                       STATE OF U.P. & ORS.
                                  v.
                       MAHESH NARAIN ETC.
               (Civil Appeal Nos. 2208-2209 of 2013)
                           MARCH 06, 2013
B
         [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

         Service Law - Promotion - Eligibility - Held:
    Respondents were already holding the post of Scientific
C   Officer and hence eligible to the promoted quota of 25% posts
    of Assistant Director after completion of five years of service
    as Scientific Officers in terms of the Rules of 1987 -
    Subsequent amendment of 1990 laying down to fill in all the
    posts of Assistant Director by direct recruitment could not be
D   applied in case of the respondents - If five years of service
    is counted from the date of initial promotion (to the post of
    Scientific Officer) until publication of amended Rules of 1990,
    the respondents had already completed five years of service
    on the post of Scientific Officer making them eligible for further
E   promotion of Assistant Director under the 25% promotion
    quota - Even if respondents had not completed five years of
    experience on the post of Scientific Officer for any reason,
    they had the statutory protection and benefit of the proviso to
    Rule 5 of the 1987 rules which provided that where permanent
F   scientific officers were not available for absorption under the
    25% quota, such temporary and officiating personnel were
    also to be considered for promotion to the said posts who were
    functioning on permanent basis on the next lower post- U.P.
    Forensic Science Laboratories Technical Officers Service
G   Rules, 1987 - rr.5 and 16 - U.P. Forensic Science
    Laboratories Technical Officers' Service (First Amendment)
    Rules 1990.

      Service Law - Service rules - Applicability - Effective
  date - Held: The rules cannot be made effective from the
H                           534
  STATE OF U.P. & ORS. v. MAHESH NARAIN ETC.                535


date of its preparation but will attain legal sanctity and hence   A
capable of enforcement only when the rules are made
effective - The date on which the rules is to be made effective
would be the date when the rules are published vide the
gazette notification.
                                                                   B
    Writ petitions were filed by the appellant/State of U.P.
against the judgment passed by the State Public
Services Tribunal directing the State of U.P. to consider
the case of the respondents for promotion on the post
of Assistant Director and grant them all consequential             C
benefits if found suitable.

     The High Court, by the impugned judgment,
dismissed the writ petitions after recording a finding that
the Rules of U.P. Forensic Science Laboratories
Technical Officers' Service (First Amendment) Rules 1990           D
dated 15.9.1990 which were published in the U.P.
Government Gazette on 20.10.1990 will be deemed to be
enforced from the date when they were duly published
in the U.P. Government Gazette and not from the date
when the rules were prepared and passed by the                     E
Government. As a consequence of this finding, it was
held by the High Court that the Respondent/claimant-
officials were duly eligible and qualified for consideration
of their claim for promotion on the posts of Assistant
Director Forensic Science as they had acquired the                 F
requisite years of experience for promotion by the time
the rules were pubiished in the gazette.

    Dismissing the appeals, the Court

    HELD: 1.1. The respondents were promoted as                    G
Scientific Officer on 16.9.1985 which they joined on
20.9.1985. No doubt this promotion order indicated that
the promotion was to remain effective only for a period
of one year or until the U.P. Forensic Science
Laboratories Technical Officers Service Rules, 1987 were           H
    536     SUPREME COURT REPORTS               (2013] 4 S.C.R.


A published but thereafter when the Rules of 1987 were
  finally published, it provided that 25% post of the total
  posts of promotion were to be filled in from amongst the
  permanent Scientific Officers having experience of five
  years of service. Hence if the five years of service is
s counted from the date of initial promotion until
  publication of amended Rules of 1990, the respondents
  had already completed five years of service on the post
  of Scientific Officer making them eligible for further
  promotion of Assistant Director under the 25%
C promotion quota to be filled by the departmental
  candidates possessing the required experience of five
  years. The rules cannot be held to be made effective from
  the date of its preparation but will attain legal sanctity and
  hence capable of enforcement only when the rules are
  made effective and the date on which it is to be made
0
  effective would obviously be the date when the rules are
  published vi de the gazette notification. [Paras 9, 1OJ [542-
  D-G; 543-A-B]

         1.2. The Rules of 1987 were amended in the year
E   1990 which was published in the U.P. Government
    Gazette dated 20.10.1990 laying down that the
    subsequent promotion would be made only by direct
    recruitment. The subsequent amendment of 1990 laying
    down to fill in all the posts of Assistant Director Forensic
F   Science by direct recruitment could not have been
    applied in case of the respondents who were already
    holding the post of Scientific Officer and hence were
    eligible to the promoted quota of 25% posts of Assistant
    Director after completion of five years of service as
G   Scientific Officers in terms of the Rules of 1987 and,
    therefore, their experience of five years on this post could
    not have been made to go waste on the ground that the
    amendment came into effect in 1990 making all the posts
    of Assistant Director to be filled in by direct recruitment.
H   [Paras 11, 13] [544-A-B; 545-B-D]
  STATE OF U.P. & ORS. v. MAHESH NARAIN ETC.            537

     1.3. Even if it were to be assumed that the               A
respondents had not completed five years of experience
on the post of Scientific Officer for any reason
whatsoever making them ineligible for consideration of
further promotion, they also had the statutory protection
and benefit of the proviso to the said Rule 5 which laid       B
down that where permanent scientific officers were not
available for absorption under the 25% quota, such
temporary and officiating personnel were also to be
considered for promotion to the said posts who were
functioning on permanent basis on the next lower post.         c
The respondents had already been confirmed on the next
lower post when they were promoted to the post of
Scientific Officers and as they were entitled to the benefit
of the proviso which laid down that even the temporary
scientific officers who are permanent on next below post       D
may also be considered for the purpose of promotion, the
Respondents had a right to be considered for promotion
since they were continuing on the post of Scientific
Officer and had completed five years even before the
Amended Rules came into effect on 20.10.1990 which laid
                                                               E
down that all post of Assistant Directors would be filled
by direct recruitment. [Para 15] [545-H; 546-A-E]

    Nirmal Chandra Bhattachrjee & Ors. vs. Union of India
& Ors. 1991 Supp. 2 SCC 363 and B.L. Gupta & Anr. vs.
M.C.D. (1998) 9 SCC 223 - relied on.                           F

                    Case Law Reference:
    1991 Supp. 2 SCC 363 relied on                Para 12
    (1998) s sec 223         relied on            Para 13      G
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2208-2209 of 2013.

    From the Judgment & Order dated 05.09.2007 of the High
Court of Judicature at Allahabad Lucknow Bench, Lucknow in     H
    538      SUPREME COURT REPORTS.                [2013]4 S.C.R.


A Writ Petition No. 1049 (S/B) of 2007 and Writ Petition No. 1050
  (SIB) of 2007.

      P.N. Misra, Sanjay Visen, Manoj Kr. Dwivedi, Aviral
  Shukla, S. Misra, Gunnam Venkateswara Rao for the
B Appellants.

        Mahesh Srivastava (for l.M. Nanavati Associates) for the
    Respondent.

          The Judgment of the Court was delivered by
c         GYAN SUDHA MISRA, J. 1. Leave granted.

       2. The appellant-State of Uttar Pradesh has preferred
  these appeals against the common judgment and order dated
  5.9.2007 passed in two wr_it petitions bearing Nos. 1049(S/B)/
D 2007 and 1040(S/B)/2007 whereby the Division Bench of the
  High Court of Allahabad, Lucknow Bench, Lucknow was
  pleased to dismiss both the writ petitions filed by the appellanU
  State of U.P. herein.

E      3. The aforesaid two writ petitions were filed by the
  appellanUState of U.P. represented by the Department of
  Forensic Science and the Department of Home assailing the
  judgment and order of the State Public Services Tribunal,
  Lucknow (for short 'the Tribunal') and seeking a writ in the nature
F of certiorari for quashing the judgment and order dated
  10.4.2007 passed by the Tribunal whereby the Tribunal was
  pleased to direct the State of U.P. to consider the case of the
  respondents for promotion on the post of Assistant Director and
  grant them all consequential benefits if found suitable. The High
  Court vide its impugned judgment and order dated 5.9.2007
G was pleased to dismiss both the writ petitions preferred by the
  State of U.P. after recording a finding that the Rules of U.P.
  Forensic Science Laboratories Technical Officers' Service
  (First Amendment) Rules 1990 dated 15.9.1990 which were
  published in the U.P. Government Gazette on 20.10.1990 will
H
  STATE OF U.P. & ORS. v. MAHESH NARAIN ETC.                539
            [GYAN SUDHA MISRA, J.]
be deemed to be enforced from the date when they were duly          A
published in the U.P. Government Gazette and not from the
date when the rules were prepared and passed by the
Government. As a consequence of this finding, it was held by
the High Court as also the Tribunal that the Respondent/
claimant-officials were duly eligible and qualified for             B
consideration of their claim for promotion on the posts of
Assistant Director Forensic Science as they had acquired the
requisite years of experience for promotion by the time the rules
were published in the gazette.

     4. The facts of the case insofar as it is relevant for C
determining the controversy between the contesting parties
indicate that the respondent No. 1 was initially appointed as
Junior Chemical Assistant in the Forensic Science Laboratory
in the year 1968. The nomenclature of the said post of Junior
Chemical Assistant was subsequently changed to Scientific D
Assistant. The respondent No.1 was promoted to the post of
Senior Chemical Assistant in the year 1973 and was further
promoted as Scientific Officer on 16.9.1985 and in compliance
of the promotion order he joined on the said post on 20.9.1985.
The said promotion order was issued with a condition that the E
order of promotion would be effective for a period of one year
or until the service rules were published. The State Government
thereafter published the U.P. Forensic Science Labo.ratories
Technical Officers Service Rules 1987 (Shortly referred to· as
the Rules). Rule 5 of the said rules laid down that 75% posts F
would be filled through direct recruitment and the remaining
25% posts would be filled by promotion from amongst the
permanent scientific officers having 5 years of experience.
Besides this, the proviso to the said rule 5 laid down that where
permanent scientific officers are not available, such temporary G
and officiating personnel may also be considered for promotion
to the said post as may be permanent on the next lower post.
There were 15 posts of Assistant Directors in the Department
which were sanctioned by the State when the Rules of 1987
 came into force. Rules of 1987 were subsequently amended H
    540     SUPREME COURT REPORTS                 [2013] 4 S.C.R.


A   by U.P. Forensic Science Laboratories Technical Officers
    Service (First Amendment) Rules 1990 which was published
    in the U.P. Government Gazette dated 20.10.1990. In the
    meantime, the Respondents had already acquired 5 years of
    experience on the next lower post due to which they had
B   become eligible for promotion to the post of Assistant Director
    Forensic Science.

        5. But in pursuance to the Rules of 1990, the State
  Government notified 11 vacancies for direct recruitment through
C a notification published in the Employment News dated
  5.1.1995. Since the promotion was not granted to the
  respondents on the post of Assistant Director even after five
  years of service against four vacancies which were available
  to be filled under promotion quota, the respondents filed claim
  petitions under the U.P. Public Service Tribunal Act (1976). The
D tribunal allowed the claim petition and directed the authorities
  to consider the case of the respondents for promotion against
  the said quota on the post of Assistant Director and to promote
  them with all consequential benefits including pay and
  allowances if found suitable.
E
        6. The department Forensic Science of U.P. felt
  aggrieved by the order of the tribunal and hence filed two writ
  petitions which were dismissed by the High Court vide the
  impugned judgment and order dated 5.9.2007 recording a
F finding that the U.P. Forensic Science Laboratories Technical
  Officers Service (First Amendment) Rules 1990 dated
  15.9.1990 were published in the U.P. Government Gazette on
  20.10.1990 and they will be deemed to be enforced from the
  date when they were duly published in the U.P. Government
G Gazette and not from the date when the rules were prepared
  by the State Government as a result of which the Respondents
  were eligible to be considered for promotion as they had the
  requisite experience.

      7. The appellant/State of U.P. felt aggrieved with the
H judgment and order passed by the High Court as also the
  STATE OF U.P. & ORS. v. MAHESH NARAIN ETC.                 541
            [GYAN SUDHA MISRA, J.)
tribunal and hence has filed these two special leave petitions       A
which arises out of the common judgment and order of the High
Court under challenge wherein the principal ground of challenge
is that the respondents were not eligible for promotion to the
post of Assistant Director under Rules 5 and 16 of the 1987
Rules as they were not possessing five years of experience nor       B
were functioning on permanent post of Scientific Officers. Thus,
they were not eligible in terms of Rule 5 and 16 of the 1987
Rules which provided for recruitment to 25% of vacancies to
the post of Assistant Director found amongst the permanent
scientific officers with five years experience. It was stated that   c
the respondents were promoted to the post of Scientific Officer
purely on ad hoc basis on 16.9.1985 and were thereafter
promoted on the said post on permanent basis only on
20.3.1989 but the Rules of 1987 were amended on 15.9.1990,
whereby all the posts of Assistant Director were to be filled by     D
direct recruitment. In these circumstances, it was submitted that
the respondents could not be deemed to have had five years
experience to their credit on the permanent post of Scientific
Officer as required by Rule 5 of the 1987 Rules so as to be
eligible for consideration of promotion on the post of Assistant
                                                                     E
Director.
     8. In response to a show cause notice which was issued
to the respondents by this Court, it was contended in sum and
substance that the respondents were duly qualified to be
promoted as they had already put in five years of service on         F
the next lower post of Scientific Officer to which they were
promoted and were, therefore, rightly held eligible to be
considered for promotion to the post of Assistant Director.
Arguments were also advanced to the effect that the
respondents had already completed five years of service in           G
terms of Rule 5 of the 1987 Rules itself which were applicable
on the Respondents. It was further elaborated that in view of
Rule 5 of the 1987 Rules, the respondents were entitled for
consideration for promotion to the posts of Assistant Directors
against the quota of 25% of the vacancies reserved for
                                                                     H
    542     SUPREME COURT REPORTS                 [2013) 4 S.C.R.


A departmental candidates which were to be filled in by the
  candidates who were already discharging duties in the
  department since the amendment of 1990 laying down to fill all
  the post of Assistant Directors by direct recruitment came into
  effect on 20.10.1990 by which time the promotion of the
B Respondent on the post of Scientific Officer already stood
  confirmed so as to be eligible for consideration of promotion
  for the post of Assistant Director under the unamended Rules
  of 1987 and thus would not be affected by the Amended Rules
  of 1990 laying down to fill all the posts by direct recruitment.
C       9. In order to ascertain the correctness of the orders
  passed by the High Court as also the Tribunal, we have carefully
  examined the contesting claims of the parties. In the process,
  we noticed that the respondents were initially promoted to the
  post of Senior Chemical Assistant in the year 1973 and were
D further promoted as Scientific Officer on 16.9.1985 which they
  joined on 20.9.1985. It is no doubt true that this promotion order
  indicated that the promotion was to remain effective only for a
  period of one year or until the rules of 1987 were published but
  thereafter when the Rules of 1987 were finally published, it
E provided that 25% post of the total posts of promotion were to
  be filled in from amongst the permanent Scientific Officers
  having experience of five years of service. Hence if the five
  years of service is counted from the date of initial promotion
  until publication of amended Rules of 1990, the respondents
F had already completed five years of service on the post of
  Scientific Officer making them eligible for further promotion of
  Assistant Director under the 25% promotion quota to be filled
  by the departmental candidates possessing the required
  experience of five years. However, the appellant/State of U.P.
G contested all through that the experience of the Respondents
  would be counted not from the date when the rules were
  published in the Gazette but would be from the date when the
  rules wete under preparation in view of which they did not
  possess the requisite experience of five years on the post of
  Scientific Officer.
H
  STATE OF U.P. & ORS. v. MAHESH NARAIN ETC.                 543
            [GYAN SUDHA MISRA, J.]
      10. We however have no hesitation in holding that this        A
contention is fit to be rejected outright as the rules cannot be
held to be made effective from the date of its preparation but
will attain legal sanctity and hence capable of enforcement only
when the rules are made effective and the date on which it is
to be made effective would obviously be the date when the rules     B
are published vide the gazette notification. In that view of the
matter, we find no infirmity in the Respondents plea that they
possessed the requisite experience of five years on the post
of Scientific Officer as they had already put in five years of
service from the publication of the amended Rules of 1990 and,      c
therefore, they were rightly held eligible for consideration of
promotion to the next post of Assistant Director. We are thus
pleased to approve and uphold the view taken by the High
Court on this count.

     11. But even if we were to hold that the reasons assigned      D
by the High Court in the impugned judgment suffered from
some aberration since the respondents had joined on the post
of Scientific Officer in the year 1989 due to which in 1990, they
did not acquire the requisite experience, it cannot be
overlooked that the respondents had been promoted on the            E
post of Scientific Officers on 16.9.1985 on ad hoc basis which
had to remain effective for a period of one year only but it had
also ordered that the incumbent would be entitled to continue
on the promoted post till the service rules of 1987 were
published. Thus the respondents had a right to continue on the      F
promoted posts when the Rules of 1987 were finally published
and made effective in 1987 which earmarked that 25% of total
posts were to be filled by promotion from amongst the
permanent Scientific Officers having experience of five years
of service and further added a proviso which laid down that:        G
    "where permanent Scientific Officers are not available,
    such temporary and officiating personnel may also be
    considered for promotion to the said posts as may be
    permanent on the next lower post."
                                                                    H
    544      SUPREME COURT REPORTS                  [2013] 4 S.C.R.


A        Rules of 1987 were amended thereafter in the year 1990
    which was published in the U.P. Government Gazette dated
    20.10.1990 laying down that the subsequent promotion would
    be made only by direct recruitment. But this amendment cannot
    be allowed to affect the respondents' claim for promotion as a
B   rule cannot work to the prejudice of an employee who was
    holding the post of his eligibility prior to the enactment and
    enforcement of the Amended Rules of 1990. Since the
    respondents were eligible and entitled to the promotion for the
    post of Scientific Officer in terms of the Rules of 1987, their
c   experience could not have been ignored on the said post so
    as to deny them the benefit of consideration for the subsequent
    post of Assistant Director on the basis of Rules of 1990 which
    could be made effective for the vacancies which arose after
    1990.
D        12. Learned counsel for the respondents in support of this
    position has also cited the authority of this Court in the matter
    of Nirmal Chandra Bhattachrjee & Ors. vs. Union of India &
    Ors. reported 1991 Supp. 2 SCC 363 wherein this Court
    observed as under:-
E
          "No rule or order which is meant to benefit employees
          should normally be construed in such a manner as to work
          hardship and injustice specially when its operation is
          automatic and if any injustice arises then the primary duty
F         of the courts is to resolve it in such a manner that it may
          avoid any loss to one without giving undue advantage to
          other''.

  The Court further observed that the mistake or delay on the part
  of the department should not be permitted to recoil on the
G appellants, more so since, the restructuring order in the said
  case itself provided that vacancies existing on July 31, 1983
  should be filled according to procedure which was in vogue
  before August 1, 1983. This Court therefore, restored the
  promotion order of the employees to which they were entitled
H prior to the change of service rules as it was held that the
  STATE OF U.P. & ORS. v. MAHESH NARAIN ETC.                  545
           [GYAN SUDHA .MISRA, J.]
change of service rules cannot be made to the prejudice of an        A
employee who was in service prior to the change. The Court
further went on to hold that if the delay in promotion takes place
at the instance of the employer, an employee cannot be made
to suffer on account of intervening events.
                                                                     B
      13. The principle laid down in the aforesaid case aptly fits
into the facts and circumstances of this case as the subsequent
amendment of 1990 laying down to fill in all the posts of
Assistant Director Forensic Science by direct recruitment could
not have been applied in case of the respondents who were            C
already holding the post of Scientific Officer and hence were
eligible to. the promoted quota of 25% posts of Assistant
Director after completion of five years of service as Scientific
Officers in terms of the Rules of 1987 and, therefore, their
experience of five years on this post could not have been made
to go waste on the ground that the amendment came into effect        D
in 1990 making all the posts of Assistant Director to be filled
in by direct recruitment. In support of this view, the counsel for
the Respondents also relied on the decision of this Court in the
matter of BL Gupta & Anr. vs. M.C.D. reported in (1998) 9
sec 223 wherein this Court had held that any vacancy which           E
arose after 1995 were to be filled up according to rules but the
vacancies which arose prior to 1995 should have been filled
up according to 1978 rules only.

     14. As a consequence of the aforesaid analysis, we have         F
no hesitation in holding that the High Court was right in taking
the view that the respondents were eligible for promotion to the
post of Assistant Director under the Rules of 1987 against 25
per cent quota to be filled in by promotion as they satisfied the
conditions of five years of requisite experience on the post of      G
Scientific Officer if the experience were to be counted from the
date of publication of the Rules in the U.P. Government
Gazette.

    15. But besides the above, it cannot be overlooked that
even if it were to be assumed that the -respondents had not          H
    546      SUPREME COURT REPORTS                   (2013] 4 S.C.R.


A    completed five years of experience on the post of Scientific
     Officer for any reason whatsoever making them ineligible for
     consideration of further promotion, they also had the statutory
     protection and benefit of the proviso to the said Rule 5 which
     laid down that where permanent scientific officers were not
B available for absorption under the 25% quota, such temporary
    and officiating personnel were also to be considered for
    promotion to the said posts who were functioning on permanent
    basis on the next lower post. It is an admitted position that the
    respondents had already been confirmed on the next lower post
c when they were promoted-10-the post of Scientific Officers and
    as they were entitled to the benefit of the proviso which laid
    down that even the temporary scientific officers who are
    permanent on next below post may also be considered for the
    purpose of promotion, the Respondents had a right to be
  · considered for promotion since they were continuing on the post
0
    of Scientific Officer and had completed five years even before
    the Amended Rules came into effect on 20.10.1990 which laid
    down that all post of Assistant Directors would be filled by direct
    recruitment. Thus, for this additional and sure shot reason as
    also for the reasons which have been assigned by the High
E Court, we find no infirmity in the orders of the High Court as
    also the Tribunal which had held in favour of the respondents
    directing the appellant/State of U.P. to consider their eligibility
    for promotion to the post of Assistant Director Forensic Science
    and grant them the consequential benefit if found eligible.
F
          16. We thus, find no substance in these appeals filed by
    the appellant/State of U.P. a~ consequently dismiss them but
    in the circumstances without any order as to costs.

    B.B.B.                                      Appeals dismissed.