Shanker Raju, Member (J)

1. As held by the Apex Court in Janany J.R. v. S. Rajeevan : 2010 (4) SCALE 535 that in the matter of promotion, eligibility has to be determined on the date of accrual of vacancy.

2. It is also no more res integra as trite in law that it is the date of accrual of vacancy, which would determine application of the rules in vogue, as per the decision of the Apex Court in Union of India v. N.R. Banerjee 1997 SCC (L&S) 1194.

3. Applicant, who has been working as Head of Department in Engineering, though on substantive post of Executive Engineer (Electrical), since 23.5.1995, has impugned respondents order dated 23.7.2009, whereby his request for consideration for promotion to the upgraded post of HOD (Electrical Engineering) in the pay scale of Rs. 12000-18300, has been turned down. Applicant seeks consideration through respondent No. 5 for the post of Head of Department (HOD) with effect from May, 1990 from the date of eligibility as per the then existing recruitment rules of 1994 with all consequential benefits.

4. Applicant, who was appointed as a Lecturer (Electrical Engineering) through UPSC on 16.7.1985, a DPC was held for promotion to the post of HOD (EE) on 8.2.1989. However, the applicant was not eligible at that time gained eligibility as per recruitment rules of 1984, stipulating possession of Degree in Engineering and experience, including teaching. Four vacant posts of HOD (EE) were available from 12.4.1996 but no DPC was held. However, the HO Civil Engineering Electrical Engineering Rules underwent enhancement in educational qualifications which were applied to promotees, introducing Masters degree in Engineering. The name of applicant was not considered. Accordingly, on the basis of the old recruitment rules of 1984 applicant preferred representation for grant of promotion from 1990 or 12.4.1996 on accrual of vacancy. When no decision has been arrived at on representation, it led to OA-1744/2009, whereby respondents were directed to dispose of the representation.

5. An order passed on 23.7.2009 rejected the claim of the applicant on the ground that old recruitment rules can be considered only for the pay scale of Rs. 10000-15200, which the applicant is enjoying upon grant of senior scale and for grant of upgraded pay scale at par with the HOD suitability is to be assessed by the UPSC on the basis of the recruitment rules notified in 2003 for which applicant is not eligible. Learned Counsel of applicant referred to the decision of the Apex Court in Y.V. Rangiah v. J. Sreeniwas Rao 1983 (2) SLR 789 SC to contend that it is the accrual of vacancies which will determine the eligibility criteria and the recruitment rules of 1993 in vogue would apply therein. As such the applicants claim should have been considered as per the recruitment rules of 1984 instead of 2003, according to which he was available. It is contended that four vacancies of HOD (EE) arose prior to the amendment in recruitment rules, i.e., 12.6.1996, applicant being senior-most Lecturer and being fully eligible, possessing all educational qualifications with five years professional experience, including two years teaching, non-consideration is violative of his Fundamental Right.

6. Learned Counsel would further contend that the amended rules do not contain a note whereby all those in feeder category with lesser qualification their right to be considered has not been protected. While referring to letter dated 10.09.1993 issued by AICTE it is stated that the Lecturers recruited before 20.9.1989 will be exempted from the revised qualification prescribed by the AICTE.

7. Learned Counsel would also contend that by not holding a DPC almost for two decades there is a legal malafide on the part of the respondents despite vacancies were available from 1990 till 1996. Learned Counsel has referred to UPSCs stand whereby the proposal of other official respondents has since been turned back on the ground of decision in Y.V. Rangiahs case (supra) and to this effect the noting in their letters dated 15.7.2003 and 2.9.2009 has been relied upon wherein on reporting of four vacancies on the basis of the decision in Y.V. Rangiahs case (supra) the department has been asked to furnish copy of the recruitment rules of 12.12.1984. Learned Counsel stated that the respondents have misled the Tribunal as in the impugned order the post of HOD was upgraded from the pay scale of Rs. 3000-4500 to Rs. 3700-5700. The aforesaid post was never upgraded but only the pay scale was revised, which wrong fact was also forwarded to UPSC to fill up three vacant posts of HOD. It is stated that such proposal was never sent to UPSC and that despite applicant not possessing a Degree in Electrical Engineering as per the new recruitment rules, the dossiers of the applicant should have been forwarded to the UPSC for consideration on relaxation, as this power under the new recruitment rules is entrusted to the UPSC.

8. On the other hand, official respondents 1-4 through Shri Vijay Pandita vehemently opposed the contentions. According to him the recruitment rules for the post of HOD notified in 1984 the pay scale was less the earlier proposal sent on the basis of 1984 recruitment rules on occurrence of vacancy the name of applicant figured therein for consideration but the UPSC had sought certain additional information. However, column 11 of the recruitment rules notified on 7.4.2003 provide that suitability of regular holders of the post of HOD in the erstwhile pay scale of Rs. 3000-4500 would be initially assessed by the Commission for appointment as HOD in the pay scale of Rs. 3700-5700 and on suitability they would be treated having appointed to the post of HOD at initial constitution, failing which they would continue in the existing pay scale. It is stated that desirable qualification under the Rules being Masters degree, at best the recruitment rules of 1984 would be relevant for the pay scale of Rs. 10000-15200, which the applicant is already enjoying. It is stated that the department received candidatures of applicant and others, which were placed before the screening committee to ascertain eligibility of Lecturers but the committee did not find applicant as eligible, as such, his claim was turned down.

9. We have carefully considered the rival contentions of the parties and perused the material on record. It is trite in law that right to be considered for promotion has partaken the character of Fundamental Right, which is to be done on fair and equitable basis, as held in Union of India v. Hemraj Singh Chauhan 2010 (3) SCALE 272. It is also no more res integra that whenever a vacancy arises, eligibility of the person is to be construed on the basis of the recruitment rules in vogue. The post of HOD on which applicant was working, irrespective of his pay scale what has been allowed on revision is not revision of the post or its nomenclature but the pay scale attached to it, does not alter the grouping of the post. The initial constitution referred to in column 11 of the Rules, as reflected by the respondents is a deemed provision, which would apply to a person not having the post in the new recruitment rules but with regard to the position in the past, i.e., applicant who was officiating without the pay scale the grant of pay scale was an independent process, which could not be treated as a consideration for promotion of the applicant, which is separate in Clause 12 of the recruitment rules of 2003. Basically the pay scale arrived at by the applicant is on the basis of revision and not on the basis of promotion. It may be true that the earlier pay scale attached to the post of HOC (EE) may be lesser but once a person under the old recruitment rules is considered and promotion as HOD (EE) the process of his being treated in the initial constitution would arise as per the recruitment rules of 2003. But the issue before us is whether applicant is eligible to be considered for promotion when the vacancy had arisen, which is not disputed during the period 1990-1996 when the old recruitment rules were in vogue, i.e., recruitment rules of 1984 where the applicants eligibility has not been disputed.

10. The stand taken by the official respondents other than the UPSC and rejection of the request goes contrary to the reply filed by the UPSC where we find that the DPC guidelines of 10.3.1989 having been relied upon, referring to the recruitment rules of 1984 and enhancement of the pay scale attached to the post of Rs. 10000-15200. The pay scale of the post of HOD (EE) was revised to Rs. 12000-18200 w.e.f. 16.2.1996 as per the AICTE direction but the OM of 1993 has clearly made an exception that those Lecturers who were eligible in 1989 the enhanced qualification would not affect them. The revision of recruitment rules having taken place in consultation with the UPSC were notified on 7.4.2003. However, UPSC has quoted an example of one Mr. Prem Prakash, who filed OA No. 2651/2001, which was allowed on 19.3.2002 with consideration under the old recruitment rules. A proposal was sent for three vacancies of HOD (EE) to the UPSC as per the old recruitment rules and it was further decided by the UPSC that the recommendation for promotion as HOD (EE) would be in the pay scale of Rs. 10000-15200 and as per the initial constitution incorporated in the note in column. 11, if persons are assessed suitable they would be deemed to have been appointed to the upgraded post in initial constitution. Accordingly, UPSC advised the department to hold DPC as per the old recruitment rules and a fresh proposal received by UPSC in 2009 against four vacancies pertaining to the year 2003-2004 led to an enquiry, whereby Department informed that out of four vacancies three pertained to the years 1998-1999, 2000-2001 and 4th the year 1997-1998. As such, the vacancies pertained to the year of recruitment of 1984. A detailed letter in this regard having been sent the respondents have not further responded.

11. In the above view of the reply filed by the UPSC the contention of applicant being accepted with consideration for promotion has to be made on his eligibility on the date of accrual of vacancies, which is admittedly prior to 2003. The new recruitment rules would not apply and the stand of the respondents that applicant was not eligible, cannot be countenanced in law. The decision referred to in Hemraj Singh Chauhans case (supra), on all fours, covers the issue raised by the applicant.

12. Resultantly, for the foregoing reasons, OA is allowed. Impugned order is set aside. Respondents No. 2-4 are directed to send particulars of applicant with his dossiers to respondent No. 5, UPSC, for consideration for promotion as HOD (EE), which respondent No. 5 shall consider as per their admitted stand in accordance with the recruitment rules of 1984 and in case applicant is assessed as fit, law shall take its own course with an apt methodology under the rules and instructions to be accorded promotion with all consequences. This shall be done within a period of three months from the date of receipt of a copy of this order. No costs.