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Judgment
(PER : NIVEDITA P. MEHTA, J.)
Rule. Rule made returnable forthwith. Heard finally by consent.
By the present writ petition, the petitioners seek quashing and setting aside of the letter dated 20.09.2023 and the consequential list of officers prepared for promotion by the Deputy Commissioner (Administration), Nagpur Division, Nagpur. The petitioners further seek a direction to the respondents to conduct the departmental examination for promotion to the post of Assistant Block Development Officer in accordance with the Maharashtra Development service (Constitution, Classification and Recruitment) (Amendment) Rules, 2018 (hereinafter referred to as “Rules, 2018”). During the pendency of the petition, the petitioners by amending the prayer clause has thrown challenge to the Maharashtra Development Service (Constitution, Classification and Recruitment) (Amendment) Rules, 2024 (hereinafter referred to as “Rules, 2024”) and the consequential promotional list dated 29.02.2024.
The concise background of the matter is that the State Government of Maharashtra by the Notification dated 18.09.2018 amended the Maharashtra Development Services (Constitution, Classification and Recruitment) Rules, 1973 (hereinafter referred to as “Rules, 1973”) in relation to the method of appointment to the post of Assistant Block Development Officer, Group-B (Gazetted). By the amended Rule 6 of Rules, 1973, it was, inter alia, provided that appointment to the post of Assistant Block Development Officer was to be made either by nomination of candidates on the basis of result of competitive examination conducted by the Maharashtra Public Service Commission (MPSC) or by selection on the basis of a common merit list prepared from the result of the Limited Departmental Examination. The Limited Departmental Examination was prescribed as a common examination for eligible employees holding post of District Technical Service (Class-III) Agriculture and District Service (Class-III) (Executive and Village Extention) of Zilla Parishads who have completed the requisite period of service.
The petitioners are serving as Extention Officers in Zilla Parishad, Chandrapur and Nagpur, respectively. The grievance of the petitioners is that, notwithstanding the aforesaid amended recruitment mechanism, the respondents – authorities have proceeded to fill the post of Assistant Block Development Officer by promotion, without following procedure contemplated under the amended Rule 6 of Rules, 1973. Aggrieved by the action of the respondents – authorities in making such appointments/promotions, the petitioners have approached this Court, by questioning legality of the said action and seeking enforcement of the recruitment procedure prescribed under the amended Rules.
Mr. S.M. Bahirwar, learned counsel for the petitioners, submitted that the State Government of Maharashtra, by the Notification dated 18.09.2018, amended Rules 6 of Rules, 1973 and prescribed the mode of appointment to the post of Assistant Block Development Officer, Group-B (Gazetted) and under the said amended provisions, appointments were contemplated through nomination on the basis of competitive examination and through selection on the basis of common merit list prepared on basis of result of the Limited Departmental Examination. The posts were to be filled in the ratio of 50:50 by nomination and selection through the Limited Departmental Examination.
He further submitted that the 2018 Amendment contains a transitional provision permitting appointments by promotion for a period of four years (4 years) from the date of publication of the Amendment or until preparation of the common merit list under the amended Rule 6(1)(b), whichever was earlier. According to him, the said period of four years expired on 18.09.2022 and, therefore, the respondents could not have continued to resort to promotion while ignoring the mechanism on Limited Departmental Examination contemplated under the amended Rules. He further submits that notwithstanding the aforesaid statutory scheme, respondent No.3 issued Communication dated 20.09.2023 calling upon the concerned Zilla Parishad to furnish the requisite options and recommendations. It is his contention that the aforesaid action is contrary to the amended Rule 6 of Rule, 1973 and defeats the legitimate opportunity available to Class-III employees who had been preparing for the Departmental Examination.
He further submits that, during the pendency of the present petition, the State Government of Maharashtra introduced the Rules, 2024 by Notification dated 12.01.2024 and thereafter issued the promotion list dated 29.02.2024.
He contended that the subsequent amendment cannot retrospectively validate the action already undertaken by the respondents under the unamended statutory regime. According to him, the amendment being prospective, any promotions effected prior thereto are required to be examined with reference to the Rules that were then in force. He submits that the respondents were bound to act in accordance with the 2018 Amendment, as the same remained operative and could not have disregarded the statutory requirement of conducting the Limited Departmental Examination. It is contended that permitting promotions without following the prescribed procedure would deprive similarly situated Class-III employees of an equal opportunity for appointment to the post of Assistant Block Development Officer.
It is submitted that several employees, including the petitioners, were awaiting promotion and preparing for the Departmental Examination in terms of the Rules, 2018. According to him, the impugned action of filling the posts through promotion has consequently prejudiced their prospects of promotion. The learned counsel for Petitioners placed reliance upon the Representation dated 26.09.2023 submitted by the petitioners to the Additional Chief Secretary (Service), General Administration Department, requesting intervention against the proposed promotion, however, the said representation has not been considered or decided.
As regards the subsequent amendment and the promotional list dated 29.02.2024, learned counsel for the petitioners submits that the same have been challenged by way of amendment to the petition. The 2024 Amendment, as well as the consequential promotional list, cannot be permitted to defeat the rights and legitimate expectations arising under the Rules, 2018 during the period when the petitioners and other eligible employees were governed by the earlier recruitment mechanism. It is, therefore, submitted that the Communication dated 20.09.2023 and the promotional list dated 29.02.2024 deserve interference, and respondents ought to be directed to undertake the recruitment/promotion process in accordance with the statutory scheme governing the post of Assistant Block Development Officer.
Dr. Milind Sathe, learned Advocate General, assisted by Mr. N.R. Patil, Assistant Government Pleader, appearing on behalf of the respondents, submitted that the Rules, 1973 were framed by the State Government by the Notification dated 10.08.1973. Under the said Rules, appointment to the Maharashtra Development Service (Class-II) was contemplated by the nomination on the basis of the competitive examination conducted by the Maharashtra Public Service Commission and by selection from amongst eligible members of the District Technical Services and District Services working under the Zilla Parishads. The learned Advocate General submitted that by the Amended Notification dated 09.01.2014, the State Government of Maharashtra prescribed the proportion of appointments by selection to the Maharashtra Development Service, Class-II from Zilla Parishad cadres. The cadre of District Services (Class-III) (Executive and Village Extension) was allocated 40% (forty percent), while the remaining percentage was distributed amongst the other specified District Technical Services and District Services cadres.
It is further submitted that the Notification dated 18.09.2018 subsequently amended the recruitment mechanism and provided for selection to Maharashtra Development Services, Group-B, on the basis of the common merit list prepared from the result of the Limited Departmental Examination among the eligible members of the District Technical Services and District Services (Class-III). However, the amended provision itself contemplated promotion as a transitional arrangement for a period of 4 years (four years) from the date of publication of the Rules or until preparation of the common merit list, whichever is earlier. Subsequent to the 2018 Amendment, several representations were received from various organization seeking cancellation of the Limited Departmental Examination and restoration of earlier recruitment mechanism. It is submitted that Writ Petition No.5123 of 2019 was also instituted before the Hon’ble High Court of Bombay, Aurangabad Bench, challenging the Rule 6 of the Notification dated 18.09.2018 and seeking restoration of the position prevailing prior thereto.
Pursuant to the decision taken by the Department, a proposal was initiated by the State Government vide Communication dated 11.03.2020 for amending Rule 6(1)(b) and restoring the earlier position. The respondents, by filing an affidavit before the Hon’ble High Court of Bombay, Aurangabad Bench in Writ Petition No. 5123 of 2019, stated that in view of the representations received, necessary steps would be taken to amend Rule 6(1)(b) and restore the earlier position prior to amendment of 2018. The said statement was placed on record in the proceedings, following which writ petition came to be disposed of by order dated 18.08.2022. The proposal for amendment could not be processed expeditiously owing to the intervening Covid-19 pandemic and consequential delay at various levels of consideration. A substantial number of posts of Assistant Block Development Officer, Group-B, were lying vacant across the state. Out of 443 sanctioned posts, 243 posts were vacant in the six (6) Revenue Division. According to him, such substantial vacancies were adversely affecting the administrative functioning at the Taluka level and, therefore, expeditiously filling up the posts was necessary for the smooth functioning of the Panchayat Samities. The learned Advocate General submitted that the promotion process for the select list of the year 2022-23 was accordingly initiated. The Communication dated 20.09.2023 was issued in that process containing list of eligible candidates and seeking posting options for filling up the vacant posts. As regards the petitioners, it is submitted that the petitioners were in fact considered by the Divisional Promotion Committee, Nagpur, at its meeting held on 23.05.2023. However, as departmental inquiry was pending against the petitioner No.1 (Mr. Urade) and also a Criminal Case bearing Crime No. 744/2017 registered at Police Station, Ramnagar, Chandrapur, was pending before the District Court, Chandrapur, therefore, his assessment was kept in a sealed envelope. Hence, the petitioner No.1 was excluded from promotion.
He further contended that the petitioners have also challenged the Notification dated 12.01.2024, whereby the Rules, 2024 came to be introduced as well as consequential promotional list dated 29.02.2024 was issued. The 2024 Amendment was issued after the approval of the competent authority and restored the recruitment position prevailing prior to the Rules, 2018. It was further submitted that the petitioners have no vested or enforceable rights to claim promotion through any particular mode of recruitment merely because such was prescribed vide Notification dated 18.09.2018. It was specifically contended that the Class-III employees of Zilla Parishads cannot claim a legitimate expectation as a matter of right in respect of promotion through the Limited Departmental Examination. There was no violation of Rules 6 in issuing the Communication dated 20.09.2023 calling upon the concerned Zilla Parishads to furnish options and recommendations for filling up the posts by promotion, particularly in view of the subsequent policy decision and the Notification dated 12.01.2024. The concerned Zilla Parishads were required to forward the requisite options and recommendations pursuant to the communication issued by the Deputy Commissioner (Establishment), Nagpur Division, Nagpur.
As regards the retrospective operation of the amended Rules, it is submitted that a proposal was placed before the Law and Judiciary Department for considering retrospective application of Rules, 2024 from 18.09.2022. The Law and Judiciary Department opined that there was an apparent legal impediment in giving retrospective effect to recruitment Rules, subject to the condition that such retrospective operation should not adversely affect or impair any right of an employee and there should be no subsisting restraint order of any Court concerning the subject matter. The learned Advocate General contended that no employee had acquired any vested right pursuant to the Limited Departmental Examination mechanism introduced by the Notification dated 18.09.2018, since the rules governing the Limited Department Examination had not been finalized and no promotion through Limited Department Examination had actually been undertaken under the mechanism. Therefore, retrospective application of the amended recruitment/promotion Rules would not adversely affect any of the employees or the petitioners.
Lastly, the learned Advocate General submitted that the petitioners cannot claim that 2024 Amendment was introduced merely to defeat the petitioners’ alleged right or to confer an advantage upon some selected employees. The amendment represents a policy decision of the State Government to restore the earlier recruitment/promotion mechanism and the Court in exercise of its writ jurisdiction ought not to interfere with such policy unless the amendment was shown to be contrary to the statutory or constitutional requirement. Hence, it is submitted that the challenge to the Notification dated 12.01.2024 and consequential promotion list dated 29.02.2024 deserves to be rejected.
Analysis and Conclusion
We have considered the rival submissions advanced by the learned counsel for the respective parties and perused the material on record. The controversy essentially gives rise to the question whether the petitioners had acquired any enforceable right under the Rules, 2018 to have their candidature considered through the Limited Departmental Examination/common merit-list mechanism, particularly in context of the communication dated 20.09.2023, and whether the subsequent notification dated 12.01.2024 and consequential promotional list dated 29.02.2024 are liable to be interfered with on that account.
In the present matter, the Court is not called upon to determine whether promotion through examination or promotion through the earlier mechanism is administratively preferable. The choice of the mode of promotion, subject to constitutional and statutory limitations, essentially lies within the domain of the rule-making authority. The Hon’ble Supreme Court of India in the case of P. U. Joshi & Ors. v. Accountant General, Ahmedabad & Ors. reported in (2003) 2 SCC 632, in paragraph No. 10 held as under :-
"10.…. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
The Apex Court in the aforesaid judgment held that questions relating to the constitution, structure, and cadre strength, creation or abolition of posts, and avenues of promotion fall within the domain of the employer/rule making authority and ordinarily do not give rise to a judicially enforceable right unless a statutory or constitutional right is infringed.
The challenge to the Rules, 2024, therefore, has to be examined from the standpoint of whether any vested right had accrued to the petitioners under the Rules, 2018. The petitioners may have prepared for the Limited Departmental Examination and may have expected consideration through that mechanism. However, such preparation or expectation, by itself, does not amount to an accrued right. The material before the Court does not indicate that the Limited Departmental Examination mechanism had not culminated in an examination, preparation of a common merit list, or final selection.
The Hon’ble Apex Court has consistently recognized that retrospective alteration of service rules cannot be used to destroy an accrued vested right. At the same time, where no such vested right has accrued, the Rule making authority remains competent to alter the conditions of service. In Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors., (1997) 6 SCC 623, the same principle was recognized by the Hon’ble Supreme Court in and reiterated in Punjab State Cooperative Agricultural Development Bank Ltd. v. Registrar, Cooperative Societies and Ors., (2022) 4 SCC 363, and recently in State of West Bengal and Anr. v. Confederation of State Government Employees, West Bengal and Ors., 2026 INSC 123. The protection afforded against retrospective amendment is, therefore, in respect of an accrued or vested right, and not of every existing expectation of promotion.
In the present case, therefore, unless the petitioners establish that prior to 2024 Amendment a completed selection process had taken place, a common merit list had been prepared or some other legally enforceable right had accrued under the Rules, 2018. The challenge to the 2024 Amendment cannot succeed merely on the ground that the amendment altered the avenue of promotion. The respondents have specifically stated that no such process was undertaken under the Limited Departmental Examination Rules and also in view of the Writ Petition No.5123 of 2019, challenging the same, which was preferred before the Hon’ble High Court of Bombay, Aurangabad Bench, and in the affidavit it was stated by the State Government that, pursuant to the representations received, necessary amendment in Rule 6(1)(b) would be carried out to restore the position as it stood prior to the Notification dated 18.09.2018, and on which the Writ Petition was dismissed. This assertion assumes importance as the Hon’ble Apex Court, in Jagdish Prasad and others v. P.M. Manoj Kumar and others, 2026 INSC 572, has considered a subsequent amendment to the promotional rules and reiterated that the rules governing promotion are those applicable at the time when the consideration for promotion takes place, and that the mere existence of vacancies under an earlier regime does not, by itself, preserve the earlier method of promotion. The relevant paragraph Nos.24 & 25 are reproduced as under:
“24.The right to apply the rule in force on the day the vacancy arises has been the view taken in the Y.V. Rangaiah (supra), i.e., the Rule applies as of the date the vacancy arises. A series of decisions, while considering and applying the view in the Y.V Rangaiah (supra), have produced divergent opinions. A three-Judge Bench of this Court in Raj Kumar (supra) considered the case law and examined the principle of Y.V. Rangaiah (supra), which held that vacancies arising prior to the amendment of the Recruitment Rules must be governed by the old Rules. This Court overruled this principle, holding that public servants do not possess a vested right to be considered under the old Rules. Instead, the right to be considered for promotion is governed exclusively by the Rules in force at the time the promotion is considered. The findings of this Court in Raj Kumar (supra) are reproduced as follows:
“Analysis
82.A review of the fifteen cases that have distinguished Rangaiah would demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah. The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under:
82.1.There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah case must be understood in the context of the rules involved therein.
82.2.It is now a settled proposition of law that a candidate has a right to be considered in the light of the existing rules, which implies the “rule in force” as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates.
82.3.The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government. There is no obligation for the Government to make appointments as per the old Rules in the event of restructuring of the cadre is intended for efficient working of the unit. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14.
82.4.The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately.
82.5.When there is no statutory duty cast upon the State to consider appointments to vacancies that existed prior to the amendment, the State cannot be directed to consider the cases.
xxx
84.The decision in Deepak Agarwal inasmuch as the Court has held that a candidate has a right to be considered in the light of the existing rule. That is the rule in force on the date the consideration takes place. This enunciation is followed in many subsequent decisions including that of Union of India v. Krishna Kumar. In fact, in Krishna Kumar Court held that there is only a “right to be considered for promotion in accordance with rules which prevail on the date on which consideration for promotion takes place”.
85.1.The statement in Y.V. Rangaiah v. J. Sreenivasa Rao that, “the vacancies which occurred prior to the amended Rules would be governed by the old Rules and not by the amended Rules”, does not reflect the correct proposition of law governing services under the Union and the States under Part XIV of the Constitution. It is hereby overruled.”
25.A Division Bench of this Court in State of Odisha & Ors. v. Sreepati Ranjan Dash6 again had occasion to decide the applicable rule, namely, whether the rule in force on the date of consideration or the rule in vogue when the vacancy arose, and referred to and relied on Rajkumar & Ors. (supra). The findings of this Court in Sreepati Ranjan (supra) are summarised as follows:
A. The government, acting as the appointing authority, has the prerogative not to fill vacancies by promotion, especially during a change in cadre or restructuring of posts. In such policy matters, the State cannot be compelled to carry out appointments.
B. There is no universal rule that vacancies must be filled in accordance with the rules that existed on the date the vacancies arose.
C. An employee only has the right to be considered for promotion based on the statutory rules in force on the date the actual consideration for promotion takes place, not retrospectively.
D. There is a difference between an automatic “promotional post” and a “selection post”. For a “selection post”, promotion is not automatic merely based on seniority or ranking in a Gradation List; merit is the primary criterion. Since it is a selection post, the Government is competent to change the selection method for the “selection post”.
E. When new rules supersede old instructions “except as respects things done or omitted to be done,” the protection only applies to completed acts. Merely writing a letter to request the convening of a DPC is not a completed act.”
In the aforesaid case, the Hon’ble Apex Court recognize that where the selection process had not crystallize into an accrued right, the State Government could alter the recruitment framework and was not compelled to continue the earlier process merely because vacancies had arisen during the operation of earlier Rules.
As regards to the effect of petitioners’ reliance on the Rules, 2018, we are of the firm opinion that the same is misconceived. The respondent’s material demonstrates a continuous policy consideration for restoration of the earlier recruitment mechanism as the State Government had informed this Court (Aurangabad Bench) in the earlier litigation that the necessary amendment would be undertaken and the subsequent Notification dated 12.01.2024 was issued after the approval of the competent authority. The Rules, 2024 thereafter gave statutory effect to the policy decision earlier taken by the State Government to restore the position prevailing prior to the 18.09.2018 amendment, by providing for promotion under Rule 6(1)(b) on the basis of seniority and prescribed service-wise percentages. Thus, the amendment cannot on the material presently available be characterized as an isolated or colourable exercise undertaken merely to defeat the petitioners’ claim. The record discloses a policy decision preceded by representation, departmental consideration and internal departmental consultation. The fact that the decision ultimately operated to alter the promotional avenue available under the Notification dated 18.09.2018 does not, by itself, render the amendment arbitrary.
At the same time, the respondents’ submission regarding retrospective operation must be treated with the necessary qualification. The power to frame or amend service rules retrospectively is not unlimited. If retrospective operation were ultimately sought to be given in a manner which takes away an accrued vested right, such retrospective operation would be opened to constitutional scrutiny. The Law and Judiciary Department, itself, as placed on record by the respondents, has recognized this limitation while examining the proposal for retrospective application from 18.09.2022. The legality of the petitioners’ claim can be determined on the basis of the rules actually in forced and the rights actually accrued as per the Notification of 2024 of amended Rules.
The petitioners have also contended that the 2024 amendment deprives Class-III employees of equal opportunity for promotion. However, no material has been placed before us to demonstrate that the amended provisions create an impermissible classification amongst similarly situated employees or operate in a manner contrary to Articles 14 or 16 of the Constitution. The amendment applies to the cadre and feeder categories covered by the Rules. The fact that employees had expected consideration through the earlier Limited Departmental Examination mechanism cannot, in the absence of an accrued right, by itself render the subsequent statutory alteration unconstitutional.
The communication dated 20.09.2023 requires separate consideration. The four-year period contemplated under the Rule 6(1) (b) of the Rules, 2018 had expired on 18.09.2022. The said communication was thereafter issued in relation to selection-list for the year 2022–23, following consideration of the eligible employees by the Departmental Promotion Committee. The communication, however, called upon the concerned Zilla Parishads to furnish posting options and recommendations and did not itself constitute a final selection or result in preparation of the common merit list contemplated under Rule 6. The mere issuance of such communication, therefore, did not crystallize a vested right in favour of the petitioners.
The Rules, 2018 themselves contained a transitional provision governing promotion for a limited period. The petitioners may have a legitimate grievance regarding the source of authority for the 2023 administrative process after expiry of the four years transitional period; however, that issue does not automatically establish their entitlement to have an LDE conduct. The LDE mechanism contemplated under the said Rules, however, did not culminate in an examination, preparation of a common merit list or final selection. The earlier position prevailing prior to the 2018 Amendment came to be restored by the subsequent Amendment dated 12.01.2024. The decision to restore the earlier promotional mechanism was within the rule-making domain of the State, and no material has been placed before us to demonstrate that the said amendment is manifestly arbitrary, discriminatory or otherwise violative of Articles 14 or 16 of the Constitution of India. The contention of the petitioners that similarly situated employees had a legitimate expectation that the departmental examination would necessarily be conducted may explain their grievance; however, such expectation cannot, in the absence of an accrued right, be elevated to the status of a vested legal right.
Consequently, the challenge to the Notification dated 12.01.2024 and the consequential list dated 29.02.2024 does not merit acceptance. The consequential prayers seeking a direction to the respondents to conduct Limited Departmental Examination in terms of the Notification dated 18.09.2018 also cannot be granted, as such a direction would effectively require the Court to compel the State to continue an avenue of promotion which the competent rule making authority has subsequently altered. The prayer for quashing the Communication dated 20.09.2023 also does not warrant interference, particularly since the said communication was part of the process of obtaining options and recommendations and did not, by itself, confer any vested right upon any candidate. The actual promotional appointments will be governed by the recruitment framework under the Rules, 2024. The respondent-State may, however, consider the feasibility
of earmarking 10 % of the 50 % promotional quota to be filled through the Limited Departmental Examination, with a view to maintaining healthy competition and providing adequate opportunity to eligible candidates from the feeder cadres on the basis of merit. Accordingly, Rule is discharged. The writ petition stands dismissed. Interim relief granted earlier, if any, stand vacated. No costs.