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Judgment
(PER : NIVEDITA P. MEHTA, J.)
Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel appearing for the parties.
By the present writ petition, the petitioners seek quashing and setting aside of the notification dated 12-01-2024 issued by the respondent-State of Maharashtra, Rural Development Department, to the extent of substitution of Rule 6(6) of the Maharashtra Development Services (Constitution, Classification and Recruitment) Rules, 1973 (for short, “the Rules of 1973”), insofar as it provides for appointment to the post of Assistant Block Development Officer, Group-B (Gazetted), by promotion and nomination in the ratio of 50:50. The petitioners have also sought a declaration that the action of the respondents in filling up the said post by promotion is contrary to the Government notification dated 18-09-2018 and the amended Rule 6 of the Rules of 1973, under which, according to the petitioners, appointment to the said post was contemplated through nomination or selection on the basis of a merit list prepared from the results of the Limited Departmental Examination, besides other consequential reliefs.
Succinctly the facts of the case are that the petitioners are the employees of the Zilla Parishad, Chandrapur holding various posts in the establishment. Petitioner Nos.1 to 4 and 7 to 13 were initially appointed as Junior Assistants, whereas petitioner Nos.5 and 6 were initially appointed as Gramsevaks. During the course of their service, some of the petitioners came to be promoted as Senior Assistants, Junior Administrative Officers and Village Development Officers. Their conditions of service are governed by the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 and the Rules framed thereunder.
The post of Assistant Block Development Officer came to be created pursuant to the Government Resolution dated 03-08-2012. The staffing pattern in respect of the said post was subsequently revised by the Government Resolutions dated 25-03-2013 and 10-08-2022. The petitioners rely upon the amendment introduced to Rule 6 of the Rules of 1973 by Government notification dated 18-09-2018 under which according to the petitioners, appointment to the post was to be made on the basis of merit in the Limited Departmental Examination, subject to the terms stipulated therein. According to the petitioners, despite the said amendment, no such departmental examination was conducted and no common merit list was prepared. Representations were accordingly made by the petitioners and other similarly situated Zilla Parishad employees seeking implementation of the amended Rule 6 of the Rules of 1973 and filling up of the post in accordance with the procedure contemplated thereunder. It is the further case of the petitioners that the provision permitting appointment by promotion during the transitional period was available only for four years from the date of publication of the notification dated 18-09-2018 and that the said period expired on 17-09-2022.
In the meantime, by communication dated 20-09-2023, the office of the Divisional Commissioner called upon the concerned Zilla Parishads, including Zilla Parishad, Chandrapur, to submit requisite options and recommendations for filling up the post of Assistant Block Development Officer by promotion. Petitioner No.1 thereafter submitted representation to the State Government requesting that the post be filled after conducting the Limited Departmental Examination in accordance with the amended Rule 6 of the Rules of 1973 and that, until then, no appointment of temporary promotion be made to the said post.
However, the State Government thereafter issued the impugned notification dated 12-01-2024 whereby the post of Assistant Block Development Officer, Group-B (Gazetted) was directed to be filled by promotion and nomination in the ratio of 50:50. Petitioners thereafter submitted a further representation dated 29-01-2024, which, according to the petitioners, was not considered. Aggrieved by the said notification and the consequential action of the respondents in proceeding to fill up the post by promotion and nomination, contrary to the procedure contemplated under Rule 6 as amended by the notification dated 18-09-2018, the petitioners have approached this Court seeking appropriate relief.
Mr. A.S. Dhore, learned Counsel for the petitioners, made the following submissions:
The impugned Government notification dated 12-01-2024, providing for filling up the post of Assistant Block Development Officer, Group-B (Gazetted), by promotion and nomination in the ratio of 50:50, is contrary to the scheme introduced by the amended Rule 6 of the Rules of 1973 vide Government notification dated 18-09-2018. According to the learned Counsel for the petitioners, the said amendment contemplated appointment on the basis of merit in the Limited Departmental Examination and, therefore, the respondents could not have, by the impugned notification dated 12-01-2024, altered the mode of recruitment so as to deprive eligible Class-III Zilla Parishad employees of an opportunity to compete for the said post on the basis of merit.
The impugned action would seriously prejudice employees working in the lower cadres, such as Junior Assistants, Senior Assistants, Junior Administrative Officers, Gramsevaks and Village Development Officers, who have rendered several years of service and would otherwise have an opportunity to seek appointment to the said post on the basis of their merit in the departmental examination. It is contended that requiring such employees to await promotion through successive promotional channels would, in many cases, result in their reaching the age of superannuation without having an effective opportunity of being considered for the said post.
The respondents have invited options for filling up the post by promotion, despite the petitioners’ representation and despite the expiry of the period of four years contemplated under the notification dated 18-09-2018. It is, therefore, contended that the impugned action is contrary to the amended Rule 6 of the Rules of 1973 and defeats the very object of introducing merit-based selection and of improving the standard of administration.
Lastly, it is submitted that the eligible employees had a legitimate expectation that the post would be filled in accordance with the amended Rule 6 by conducting the Limited Departmental Examination. The departure from the said procedure, according to the petitioners, is contrary to and violative of Articles 14 and 16 of the Constitution of India. On these grounds, the petitioners seek quashing of the impugned Government notification dated 12-01-2024 and a direction to the respondents to fill up the post in accordance with the amended Rule 6 of the Rules of 1973, as introduced by the notification dated 18-09-2018.
Mr. Milind Sathe, learned Advocate General, assisted by Mr. N.R. Patil, learned Assistant Government Pleader, made the following submissions:
The Maharashtra Development Services (Constitution, Classification and Recruitment) Rules, 1973 were amended by the State Government by notification dated 18-09-2018, providing for appointment to the post of Assistant Block Development Officer, Group-B (Gazetted), by nomination and selection on the basis of Limited Departmental Examination in the ratio of 50:50, with promotion being permissible only for a limited transitional period. It is submitted that subsequently representations were received seeking restoration of the earlier mode of recruitment, that is, the mode prevailing prior to the notification dated 18-09-2018, and pursuant thereto, the State Government amended the Rules by notification dated 12-01-2024, providing for appointment to the said post by promotion and nomination in the ratio of 50:50. It is contended that the amendment dated 12-01-2024 has restored the position prevailing prior to the notification dated 18-09-2018 and, consequently, the petitioners cannot claim any right to appointment on the basis of the proposed Limited Departmental Examination or common merit list, particularly when no such examination was conducted, no selection process was completed and no common merit list was prepared.
It is further submitted that the notification dated 18-09-2018 was also the subject matter of challenge before this Court in Writ Petition No.5123 of 2019, wherein the State Government had placed its stand with regard to the proposed amendment in the Rules. The said writ petition was thereafter withdrawn and disposed of accordingly. It is submitted that there was no adjudication on the merits of the validity of the notification dated 18-09-2018.
It is submitted that, there being substantial vacancies in the cadre of Assistant Block Development Officer, promotional orders were issued on 29-02-2024 in accordance with the amended Rules dated 12-01-2024.
It is submitted that the petitioners have no enforceable right to seek appointment on promotion to the post of Assistant Block Development Officer under the scheme contemplated by the notification dated 18-09-2018 and, therefore, the challenge to the notification dated 12-01-2024 is devoid of merit. It is further submitted that the petitioners, being employees of the Zilla Parishad, ought to have addressed their grievance through the prescribed departmental channel instead of directly communicating with the Rural Development Department without approaching the immediate superior authority, which, according to the respondents, was contrary to the Maharashtra Zilla Parishad District Service (Conduct) Rules, 1967.
The challenge raised by the petitioners proceeds on an erroneous assumption that the notification dated 18-09-2018 conferred upon Class-III employees a vested right to appointment to the post of Assistant Block Development Officer, Group-B (Gazetted), through a Limited Departmental Examination. The notification dated 18-09-2018 merely altered the method of recruitment and provided for nomination and selection on the basis of Limited Departmental Examination in the ratio of 50:50. Even under the said notification, promotion was contemplated as a transitional arrangement for a period of four years from the date of publication of the notification or until preparation of the common merit list, whichever was earlier. However, the Limited Departmental Examination was never conducted and no common merit list was prepared. Consequently, no selection process under the said Rule reached a stage at which any right could have accrued or crystallised in favour of the petitioners.
The notification dated 12-01-2024 represents a conscious decision of the State Government to restore the promotional channel which was in existence prior to the amendment introduced by the notification dated 18-09-2018. The decision was preceded by representations received from various organisations and was also consistent with the stand taken by the State Government before this Court (Aurangabad Bench) in Writ Petition No.5123 of 2019, wherein it was stated that the Government proposed to carry out the necessary amendment in Rule 6 and restore the position prevailing prior to the notification dated 18-09-2018. The said writ petition was thereafter disposed of as withdrawn.
The amended Rule does not deprive the employees of the feeder cadres of their opportunity for promotion. On the contrary, the amended Rule specifically provides for appointment to the post of Assistant Block Development Officer by promotion and nomination in the ratio of 50:50 and prescribes the respective percentages of promotional vacancies to be considered from the identified feeder cadres. The prescription of such percentages is intended to ensure that employees belonging to the respective feeder cadres have an avenue and a prescribed source for consideration for promotion to the higher post. The percentage so prescribed regulates the source from which the promotional vacancies are to be filled and does not confer upon every employee of a feeder cadre an indefeasible right to promotion.
The right of an employee is to be considered for promotion in accordance with the Rules governing the service when such consideration takes place. There is no vested right to promotion, nor is there a vested right to continuation of a particular method of recruitment or promotion. The fact that a particular method of recruitment was available under the earlier Rules cannot prevent the competent rule-making authority from subsequently altering the method of recruitment, provided the amendment is otherwise valid. The State Government was, therefore, competent to amend the Rules and provide for promotion from the feeder cadres. The Deputy Commissioner (Establishment), Divisional Commissioner’s Office, Nagpur, had already called upon the concerned Zilla Parishads to furnish the requisite options and recommendations for filling up the post by promotion, and the subsequent promotional exercise was undertaken in accordance with the amended Rules of 2024. Since more than 50% of the posts were vacant, promotional orders dated 29-02-2024 were issued pursuant to the amended statutory framework.
As regards the plea of legitimate expectation, it is submitted that legitimate expectation cannot be founded upon an expectation that a particular recruitment rule will remain unchanged indefinitely. In the absence of any completed selection process or accrued right, the petitioners cannot invoke legitimate expectation so as to prevent the State Government from exercising its statutory power to amend the recruitment Rules. It is, therefore, submitted that the petitioners have failed to demonstrate violation of any statutory right or infringement of Articles 14 and 16 of the Constitution of India. The challenge to the notification dated 12-01-2024 and the consequential promotional orders dated 29-02-2024 is, therefore, liable to be rejected. Reliance has been placed upon the case of State of Himachal Pradesh and others v. Raj Kumar and others, (2023) 3 SCC 773.
Having considered the rival submissions and having perused the material placed on record, the issue which falls for consideration is whether the petitioners have acquired any enforceable or vested right under Rule 6 of the Maharashtra Development Services (Constitution, Classification and Recruitment) Rules, 1973, as amended by the notification dated 18-09-2018, so as to preclude the State Government from subsequently amending the said Rule by notification dated 12-01-2024 and providing for appointment to the post of Assistant Block Development Officer, Group-B (Gazetted), by promotion and nomination in the ratio of 50:50.
The material on record would show that, by notification dated 18-09-2018, the State Government amended Rule 6 of the Rules of 1973 in relation to the post of Assistant Block Development Officer, Group-B (Gazetted). Under the amended provision, appointment to the said post was contemplated by nomination and selection on the basis of the Limited Departmental Examination in the ratio prescribed therein. The amended Rule also prescribed the eligibility conditions for appearing in the departmental examination and contemplated preparation of a common merit list on the basis of the result thereof.
The notification dated 18-09-2018, however, did not make the promotional avenue available under the then existing Rules permanent. The amended Rule contained a transitional provision permitting appointment by promotion for a period of four years from the date of publication of the notification or until preparation of the common merit list, whichever was earlier. Thus, the provision for promotion was expressly made subject to the said transitional arrangement. According to the petitioners, the period of four years from the date of publication of the notification dated 18-09-2018 came to an end on 17-09-2022.
It is not in dispute that, during the aforesaid period, no Limited Departmental Examination was conducted and no common merit list was prepared. Consequently, no selection process under the mechanism introduced by the notification dated 18-09-2018 reached the stage of selection or appointment. The petitioners, therefore, in our considered opinion, cannot be said to have acquired any right to appointment merely on account of the existence of the said provision in the Rules. The notification created a method by which eligible employees could be considered for appointment. It did not, by itself, confer upon any individual employee a vested right to appointment to the post.
The communication dated 20-09-2023 issued by the office of the Divisional Commissioner calling upon the concerned Zilla Parishads to furnish options and recommendations for filling up the post by promotion also does not alter the position. The said communication, at the highest, initiated an exercise for obtaining options and recommendations for promotion. It did not culminate in any final selection or appointment in favour of the petitioners. More importantly, no right had crystallised in favour of the petitioners pursuant to the said communication before the Rules came to be amended by the notification dated 12-01-2024. Mere initiation of an administrative exercise, without completion of the selection process or issuance of an order of appointment, cannot by itself create an indefeasible right in favour of an employee.
The question, therefore, is whether the petitioners can insist that vacancies in the cadre must necessarily be filled in accordance with the method of recruitment which prevailed under the notification dated 18-09-2018. It is well settled that mere existence of vacancies does not, by itself, confer upon an employee a vested right to insist upon their being filled in accordance with the Rules which existed when such vacancies arose. The Hon’ble Supreme Court, in Raj Kumar (supra), after considering the earlier decisions on the subject, has held that there is no rule of universal application that vacancies must necessarily be filled under the law which existed on the date when the vacancies arose. The right of an employee is to be considered in accordance with the Rules in force when such consideration takes place.
The principle has been reiterated by the Hon’ble Supreme Court in Jagdish Prasad and others v. P.M. Manoj Kumar and others, 2026 INSC 572, wherein the Court 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 and 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.”
A Division Bench of this Court in State of Odisha & Ors. v. Sreepati Ranjan Dash 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.”
Similarly, the Hon’ble Supreme Court in Union of India and ors. v. Krishna Kumar and ors, (2019) 4 SCC 319, has consistently drawn a distinction between the right to be considered for promotion and a vested right to promotion. In the said case, in paragraph No. 10, it is held as under:
“10.In considering the rival submissions, it must, at the outset, be noted that it is well settled that there is no vested right to promotion, but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. This Court has held that there is no rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose. The decision of this Court in Y.V. Rangaiah v. J. Sreenivasa Rao [Y.V. Rangaiahv. J. Sreenivasa Rao, (1983) 3 SCC 284 :] has been construed in subsequent decisions as a case where the applicable Rules required the process of promotion or selection to be completed within a stipulated time- frame. Hence, it has been held in H.S. Grewal v. Union of India [H.S. Grewal v. Union of India, (1997) 11 SCC 758 : 1998 SCC (L&S) 420] that the creation of an intermediate post would not amount to an interference with the vested right to promotion…..”
Thus, there is no vested right to promotion and an employee has a right to be considered for promotion in accordance with the rules prevailing on the date of which the consideration for promotion takes place. The right to be considered for promotion is a facet of right to equal opportunity in public employment, but such right cannot be converted into a vested right of promotion unless the applicable rules expressly provide for such consequence.
The aforesaid principle, in our considered opinion, can be applied to the facts of the present case bearing in mind the nature of the right claimed by the petitioners. The petitioners do not claim that they had already been selected or appointed pursuant to the notification dated 18-09-2018. Their grievance essentially is that they had an opportunity to compete for appointment through the Limited Departmental Examination and that such opportunity was subsequently taken away by the notification dated 12-01-2024. As noticed above, neither the examination was conducted nor was the common merit list prepared. Thus, no selection process had reached a stage at which a right to appointment could have accrued in favour of the petitioners.
The distinction between a right to be considered and a right to appointment is material. The notification dated 18-09-2018 undoubtedly provided a mechanism under which eligible employees could have been considered through the prescribed examination and selection process. However, the existence of such a mechanism does not mean that every employee fulfilling the eligibility condition acquired a vested right to be appointed through that mechanism. Until the prescribed selection process was undertaken and completed, the petitioners could not claim an accrued right to appointment under the said method.
The State Government thereafter amended Rule 6 by notification dated 12-01-2024. The amended Rule provides for appointment to the post of Assistant Block Development Officer, Group-B (Gazetted), by promotion and nomination in the ratio of 50:50. The amendment was made by the competent rule-making authority in exercise of the power conferred under the proviso to Article 309 of the Constitution of India. The petitioners can succeed in their challenge only if they demonstrate that the amended provision is otherwise contrary to the statutory scheme or suffers from arbitrariness or violation of Articles 14 and 16 of the Constitution of India, or that the amendment takes away a right which had already accrued in their favour.
It is also necessary to notice that the amended Rule 6 does not take away the promotional avenue of the employees belonging to the feeder cadres. It provides for appointment to the post of Assistant Block Development Officer by promotion and nomination in the ratio of 50:50 and prescribes the respective percentages of promotional vacancies to be filled from the identified feeder cadres. The prescription of different percentages for different feeder cadres, by itself, does not confer an individual right to promotion upon an employee, nor does it render the rule discriminatory. The right of an employee is to be considered against the quota prescribed for the feeder cadre to which he belongs, subject to fulfilment of the eligibility and other conditions prescribed by the Rules.
The prescription of promotional quotas amongst different feeder cadres is essentially a matter falling within the domain of the rule-making authority, having regard to the cadre structure, nature of duties, eligibility and promotional avenues. Unless the classification amongst the feeder cadres is shown to be arbitrary or without a rational basis, the Court, in exercise of jurisdiction under Article 226 of the Constitution of India, would not substitute its own assessment for that of the competent rule-making authority. In the present case, no material has been placed before us to demonstrate that the percentages prescribed under the amended Rule 6 suffer from any such constitutional infirmity.
As discussed hereinabove, no such accrued or vested right had arisen in favour of the petitioners under the notification dated 18-09-2018. The amendment dated 12-01-2024, therefore, cannot be said to have taken away any vested right of the petitioners merely because they expected the earlier method of selection to continue. The rule-making authority is competent to alter the method of recruitment or promotion, and an employee has no vested right to insist upon the continuance of a particular method of recruitment merely because such method was available under the earlier Rules. The fact that certain vacancies existed during the period when the earlier Rules were in force would not, by itself, result in preservation of the earlier recruitment method.
The contention based upon legitimate expectation also cannot assist the petitioners. Legitimate expectation may arise from a consistent representation or established practice, but it cannot be invoked to compel the State to continue a particular statutory recruitment regime indefinitely. In the present case, the alleged expectation is founded upon the notification dated 18-09-2018. However, no selection process under the said notification was completed and no common merit list was prepared. The petitioners, therefore, cannot convert the expectation of being considered under a particular method of recruitment into an enforceable right to have future vacancies filled only in accordance with that method.
It is also relevant that the promotional orders dated 29-02-2024 were issued after the amendment dated 12-01-2024 and pursuant to the amended Rule 6. The petitioners have not demonstrated that the persons promoted under the said orders were ineligible under the amended Rules or that the promotional quota prescribed thereunder was violated in making such appointments. The mere fact that the petitioners desired consideration under the earlier method introduced by the notification dated 18-09-2018 would not render the subsequent promotional exercise invalid, particularly when no selection or appointment had crystallised under the earlier Rules.
The challenge to the notification dated 12-01-2024, therefore, cannot be sustained. Consequently, the challenge to the consequential promotional orders dated 29-02-2024 also does not survive. The petitioners have failed to
establish that the impugned amendment takes away any accrued or vested right, or that the amended Rule suffers from any constitutional infirmity warranting interference in exercise of jurisdiction under Article 226 of the Constitution of India.
In view of the foregoing discussion, the writ petition is dismissed. 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. Interim relief, if any, stands vacated. Rule stands discharged.