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TMI Blog2009 (5) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 vacancies arose in the post of Assistant Registrar and the selection process was initiated and a Committee, consisting two Hon'ble Judges of that Court, was constituted. However, on 2.7.1994, a representation came to be made by the Superintendents and the Court Masters that if the promotions were made as per the existing Rules on the basis of the combined seniority list, all the 5 post were l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntendents/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 would be filled from amongst the Superintendents and Court Masters. For that purpose, separate seniority list of Private Secretaries and Superintendents/Court Masters would be prepared. A fresh selection process thereafter was started on 9.8.1995 and on 11.8.1995. First senior most 8 officers from amongst the Private Secretaries and 11 officers from the seniority list of Superintendents/Court Masters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed 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 were unconstitutional. 5. It is on these rival pleadings that we have to consider the present controversy. 6. Before we take up the contested issues for consideration, few things must be noted:- (i) At this juncture, one of the original Writ Petitioners, who was called for interview in 1994, but was not called for the interviews held in 1995 due to the amendment, has actually been promoted to the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, was not challenged before the High Court at the stage of the argument and the challenge was only limited to the retrospective nature of the amendment, which was to come in force with effect from 1.7.1973. 9. At the beginning of the debate itself, 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. Rangadhama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, which was available to the Writ Petitioner No. 8 prior to the retrospective amendment of the Rules, was not available to him after the amendment of the Rules. In our opinion, this is an incorrect notion. There can be no benefit of consideration. To be considered is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... understand this stance. 15. The High Court then proceeded to hold that a vested right of consideration was affected by the retrospective operation of the amendment and hence the amendment was bad. Shri Mishra, Learned Counsel for the respondents also pressed the same contention. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also indicated as to how those observations have to be read and understood. In our opinion, when the Writ Petitioners suggested that their vested rights or accrued rights were affected because of the retrospective operation, they completely forgot that the observations 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power by respondent Nos. 1 & 2. There is no change in the circumstances. The amendment could only be made when there is such a change in the circumstances that in the given circumstances, the Supreme Court would not have passed such an order." (Emphasis Supplied) 20. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r vested right of consideration, which could not be affected by the retrospective amendments. The only condition is that such retrospective amendments should be constitutionally valid. 22. In the decision in N.T. Devin Katti and & Ors. Vs. Karnataka Public Service Commission 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 amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise would have been available as a result of applicability and interpretation placed by a superior Court. The decision in the case of Chairman, Railway Board (cited supra) was specifically considered in para 70 of the judgment. The Court reiterated the observation made in that case that a Rule, which seeks to reverse from an anterior date a benefit which has been granted or availed of e.g. promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. We have already pointed out that it is only to this extent that the retrospectivity can be challenged. However, for that there has to be a tangible benefit awarded like promotion or pay-scale or a rate of pension. Such is not the state of affairs in the present case. The Court also made reference to the decision in State of J&K Vs. Triloki Nath Khosa reported in 1974(1) SCC 19, wherein it was held that impugned Rules did not recall a promotion already made or reduce a pay-scale already granted. 23. In short, law regarding the retrospectivity or retroactive operation regarding the Rules of selection is that where such amended Rules affect the benefit ..... 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