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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2208-2209 OF 2013 (Arising out of SLP (Civil) Nos. 7441-7442/2008)

State of U.P. & Ors.   ...Appellants

Versus

Mahesh Narain Etc.      … Respondents

J U D G M E N T

GYAN SUDHA MISRA, J.

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 writ  petitions  

bearing Nos. 1049(S/B)/2007 and 1040(S/B)/2007 whereby  

the  Division  Bench  of  the  High  Court   of  Allahabad,

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Lucknow Bench, Lucknow was pleased to dismiss both the  

writ petitions filed by the appellant/State of U.P. herein.

3. The aforesaid  two writ  petitions  were  filed  by  

the appellant/State 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 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 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  be  deemed  to  be  enforced  

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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 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 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  

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  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  

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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  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 Laboratories Technical  

Officers  Service Rules  1987  (Shortly  referred  to  as  the  

Rules).   Rule  5  of the said rules  laid down that 75%  

posts 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 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 by U.P.  

Forensic  Science  Laboratories  Technical  Officers  Service  

(First Amendment) Rules 1990 which was published in the  

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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 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 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 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.  

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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  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 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 judgment and order passed by the High Court as also  

the  tribunal and hence has filed these two special leave  

petitions 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  

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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  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  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 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 Director.   

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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 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 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  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  

Respondent on the post of Scientific Officer already stood  

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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.

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 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  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  

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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% promotion quota to be  

filled  by  the  departmental  candidates  possessing  the  

required  experience  of  five  years.   However,  the  

appellant/State  of  U.P.  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 were  

under preparation in view of which they did not possess  

the  requisite  experience  of  five  years  on  the  post  of  

Scientific Officer.    

10. We however have no hesitation in holding that  

this 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  

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would  obviously   be  the  date   when  the  rules  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,  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  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 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  

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published.  Thus the respondents had a right to continue  

on  the  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:   

“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.”   

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  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  

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promotion  for the post of Scientific Officer in terms of the  

Rules  of  1987,  their   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.

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:-

“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 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 appellants, more so since,  the restructuring  

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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   prior  to  the  

change of  service rules as it was held  that the change of  

service   rules  cannot  be  made  to  the  prejudice  of  an  

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.

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 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  

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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.    In  support  of  this  view,  the  

counsel for the Respondents also relied on the decision of  

this Court in the matter of B.L. Gupta & Anr. vs. M.C.D.  

reported in (1998) 9 SCC 223 wherein this Court  had held  

that any vacancy which 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 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 Scientific Officer if the  

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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 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 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  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  may also be considered for  the purpose of  

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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 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 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.   

16. We  thus,  find  no  substance  in  these  appeals  

filed  by  the  appellant/State  of  U.P.  and  consequently  

dismiss them but in the circumstances without any order  

as to costs.

……………………………..J. (T.S. Thakur)

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……………………………..J. (Gyan Sudha Misra)

New Delhi, March 06, 2013

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