UNION OF INDIA Vs. CHERIAN P THOMAS

JUDGEMENT

(1.) ORDER of Central Administrative Tribunal, Ernakulam Bench (in short 'tribunal') holding that respondents were entitled to be promoted in respect of five vacancies that arose on or before 25-8-1995 for the post of senior Scientific Assistant is under challenge by the Union of India and its functionaries. Controversy lies within very narrow compass. Factual position is undisputed. Respondents, four in number, were working as Technical assistants (B) at the relevant time in the Naval Physical and Ocea-nographic laboratory,Cochin. Seniorscientific Assistant is the next promotional post. Five vacancies arose on 25-8-199 5. At that point of time, recruitment rules holding the field clearly provided that officers with three years of service in the grade were eligible for being considered for promotion to the post of Senior Scientific Assistant. As they have been promoted as junior Scientific Assistant Grade I (the applicable designation at that time)on different dates in June 1991, they are eligible to be considered for promotion on 25-8-1995. Recruitment rules were amended and they came into force with effect from 26-8-1995. It is to be noted that the rules were notified and published in the official gazette on that date. Respondents took the stand that amended recruitment rules did not apply to them as the vacancies arose on 25-8-199 5 when they were not in force. Present petitioners submitted that the new rules were applicable. It was emphasized that in anticipation of the amendment to the recruitment rules, it is permissible to keep vacancies unfilled. Tribunal accepted the position in law that employer could keep vacancies in anticipation of amendment to the rules, but there must be conscious decision to that effect. It was observed that there is no specific pleadings in that regard. Learned counsel appearing for Union of India and its functionaries submitted that the approach of Tribunal is clearly erroneous. With reference to notification which was actually published in the gazette on 26-5-1995 , it is submitted that undisputedly same is dated 16-8-1995 and only the date of publication was 26-8-1995. A bare look at the same would make it clear that on 25-8-1995 authorities were aware of the notification dated 16-8-1995 which, as indicated above, was published on 26-8-1995. By no stretch of imagination, can it be said that there was no conscious decision to keep in abeyance filling of posts. Tribunal has adopted a hyper-technical approach in holding that there was no specific pleading. The document itself was before Tribunal and it was apparent therefrom that date of notification is 16-8-1995. There was no dispute regarding this aspect before Tribunal. Notification, though dated 16-8-1995, only stipulated that it will come into force on the date of its publication in official gazette. Existence of notification and date thereon was not in dispute. It has been pointed out that the posts directed to be filled up are no longer available and prescriptions of qualifications by new rules were brought in contextual change. Tribunal was not justified in accepting the prayer of respondents. Learned counsel for respondents, however, submitted that the rules applicable are those which held the field on the date of vacancies. Facts as highlighted above clearly show that the notification is, in reality, dated 16-8-1995, but came into force from 26-8-1995. Therefore, it cannot be said, as rightly contended by learned counsel for petitioners, that the existence of notification was not within the knowledge of employer. There can be no dispute with the proposition that rules which hold the field on the date of vacancies have to be applied. This position is succinctly stated by apex Court in Y. V. Rangaiah v. J. Sreenivasa Rao, 1983 3 SCC 284 : (1983 Lab IC 1240) and State of Rajasthan v. R. Dayal, 1997 10 SCC 419. But, apex Court made a distinction in case of a conscious decision to keep posts unfilled when amendments were contemplated or were on the anvil. By a policy change, introduction of new qualifications is permissible even though some existing employees would be rendered ineligible for promotion. That cannot be of no consequence as there is no indefeasible right to be promoted nor is there any guarantee that existing rules would not be changed. Avenues of promotion were there, but prescription of educational qualification or period of experience can foreclose promotion chances of some of the individual employees. The position has been elaborately dealt with by apex Court in State of J&k v. Shiv Ram Sharma, 1999 3 SCC 653 : (1999 Lab IC 2096 ). In the case at hand, there was postponement of the eligibility date. It is too well settled that employer can take a conscious decision not, to fill up vacancies till amendment of existing rules. A person eligible under the unamended rules is not entitled to be considered for promotion in pre-amended vacancies in accordance with unamended rules. (See : Dr. K. Ramulu v. Dr. S. Suryaprakash Rao, 1997 3 scc 59 : (1997 Lab IC 1451 ). Factual position as highlighted above clearly shows that there was a conscious decision to bring in changes. Rules had been made and were contained in Notification dated 16-8-1995, i. e. , atleast 10 days prior to the date on which vacancies occurred. Amended rules were on the anvil and, therefore, the ratio in Dr. K. Ramulu's case (supra) applies with full force to the facts of present case. Whether a conscious decision was taken or contemplated would depend on the facts of the case. Inevitable conclusion in the factual background of present case is that the amended rules were intended to apply. There is nothing to show that pre-amended rules were intended to be applied even though Notification was already in existence prior to occurrence of vacancy, except that it was not published in the official gazette. That being the position, Tribunal was not justified in its conclusion that unamended rules were to be applied to the case of the respondents. We allow the Original Petition by reversing the ORDER of tribunal. Petition allowed. . .