# Mohd. Nijamuddin & Ors v. State of U.P. & Anr

- **Citation:** (2021) 9 ILRA 587
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-12
- **Case number:** Service Single No. 29369 of 2016
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-nijamuddin-ors-v-state-of-u-p-anr-47451
- **Pages:** 11

## Headnote

Rules, 1982 - Promotion on the post of
Workshop Hand - Qualification of having
ITI certificate - Requirement - Rules of
2015 make the qualification of having ITI
Certificate mandatory, but Rules of 2016
make it optional - Eight vacancies of
promotion was notified on 16.05.2016 -
Rules, 2015 will be applied or Rules, 2016
- Held, in view of the qualification being
prescribed under the Amended Rules,
2016 the candidates, who were qualified
as per unamended Rules i.e. Rules, 2015,
have not been ousted from zone of
588 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration. Therefore, case of the
petitioners may not be said to have been
prejudiced on account of Amended Rules,
2016,
so
their
claim
that
they
be
considered for promotion strictly in terms
of unamended Rules, 2015 is absolutely
misconceived
-
Direction
issued
to
promote all suitable candidates from Class
IV post to the post of Workshop Hand
strictly in accordance with Rules, 2016.
(Para 14, 30 and 34)
Writ Petition disposed of. (E-1)
Cases relied on :-

## Text

9 All Mohd. Nijamuddin & Ors. Vs. State of U.P. & Anr.
587
unless such order has been passed in a
violation of rules or is an outcome of
malice in law. Both the aforesaid grounds
are missing in this case. The law is trite in
re; Krishna Chandra Dubey Vs. Union of
India (UOI) and Ors. (Civil Misc. Writ
Petition No.52249 of 2000), that it is very
well within the domain of the competent
authority to modify the transfer order or to
cancel the transfer order even if the same
has been executed. Recently, the Hon'ble
Apex Court in re; Namrata Verma v. The
State of Uttar Pradesh & Ors., Special
Leave to Appeal (C) No(s).36717/2017,
has held that the employee may not request
his/ her posting at any particular place. In
the present case, if the transfer order dated
12.7.2021 (Annexure No.6) is cancelled,
the petitioner shall remain be posted at
Badaun and if such transfer order survives,
in that case the petitioner shall remain be
posted at Badaun. Further, the transfer
policy is only a guideline and such
guideline may not be executed through writ
court unless there is any statutory violation,
therefore, the plea of the petitioner that
suspending
the
transfer
order
dated
12.7.2021 would be violative of transfer
policy is misconceived. It is made clear that
the facts of the case wherein the interim
order has been granted are different
inasmuch as such employee had placed his
grievance before the competent authority
seeking
transfer
and
considering
his
bonafide grievance, he was transferred at
particular place. Further, such transfer is
permissible but his transfer order was also
suspended by means of impugned orders
dated 27.7.2021 and 28.7.2021 even after
submitting his joining, therefore, the
interim order was granted in favour of such
employee seeking counter affidavit from
the State Government. In other cases where
the place of posting is unchanged, no
interim order has been granted by this
Court as informed by the learned Chief
Standing Counsel.

7. In view of the above, I do not find
any infirmity or illegality in the impugned
orders dated 27.7.2021 passed by opposite
party no.2 and 28.7.2021 passed by
opposite party no.3 (Annexure Nos.1 & 2).

8. Therefore, the writ petition is
dismissed being misconceived.
----------
(2021)09ILR A587
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.09.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 29369 of 2016
connected with
Service Single No. 2397 of 2020

Mohd. Nijamuddin & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
A.P. Singh, Amarendra Pratap Singh

Counsel for the Respondents:
C.S.C., Amit Bose

A. UP Police Radio Subordinate Service
Rules, 1982 - Promotion on the post of
Workshop Hand - Qualification of having
ITI certificate - Requirement - Rules of
2015 make the qualification of having ITI
Certificate mandatory, but Rules of 2016
make it optional - Eight vacancies of
promotion was notified on 16.05.2016 -
Rules, 2015 will be applied or Rules, 2016
- Held, in view of the qualification being
prescribed under the Amended Rules,
2016 the candidates, who were qualified
as per unamended Rules i.e. Rules, 2015,
have not been ousted from zone of
588 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration. Therefore, case of the
petitioners may not be said to have been
prejudiced on account of Amended Rules,
2016,
so
their
claim
that
they
be
considered for promotion strictly in terms
of unamended Rules, 2015 is absolutely
misconceived
-
Direction
issued
to
promote all suitable candidates from Class
IV post to the post of Workshop Hand
strictly in accordance with Rules, 2016.
(Para 14, 30 and 34)
Writ Petition disposed of. (E-1)
Cases relied on :-
1. Md. Raisul Islam & ors. Vs Gokul Mohan
Hazarika & ors. JT 2010 (6) SC 632
2. Santosh Kumar Singh Vs St. of U.P. & ors.
[2015 (7) ADJ 179 (FB)]
3. Gaurav Pradhan & ors. Vs St. of Raj. & ors.
JT 2017 (9) SC 501
4. Assam Public Service Commission Vs Pranjal
Kumar Sarma (2019) 17 SCALE 542
5. Ramjit Singh Kardam Vs Sanjeev Kumar; AIR
2020 SC 2060
6. Rashmi Ranjan Nayak Vs Union of India &
others; 2015 SCC OnLine Ori 300
7. U.O.I. & ors. Vs Krishna Kumar; (2019) 4 SCC
319
8. Deepak Agarwal & anr. Vs St. of U.P. & ors.
(2011) 6 SCC 725
9. Y. V. Rangaiah & ors. Vs J. Sreenivasa Rao &
ors. (1983) 3
SCC 284
10. St. of Tripura & ors. Vs Nikhil Ranjan
Chakraborty & ors. (2017) 3 SCC 646
11. U.O.I. & ors. Vs Krishna Kumar & ors.
(2019) 4 SCC 319
12. St. of Orissa & anr. Vs Dhirendra Sundar
Das & ors. (2019) 6 SCC 270
13. Zile Singh Vs St. of Har. & ors. (2004) 8 SCC 1
14. Gottumukkala Venkata Krishamraju Vs
U.O.I. 2018 SCC OnLine SC 1386
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri A.P. Singh, learned
Senior Advocate, assisted by Sri Amrendra
Pratap Singh, learned counsel for the
petitioners in leading writ petition as well
as Sri I.M. Pandey, learned counsel for the
petitioners in Service Single No.2397 of
2020, Sri Sharad, learned Standing Counsel
for the State, Sri Amit Bose, learned Senior
Advocate, assisted by Sri Abhishek Bose,
learned counsel for the intervenor.

2. By means of first writ petition, only
one prayer has been made, which is as
under:-

"(a) issue a writ, order or
direction in the nature of mandamus
commanding the Opposite parties to fill up
the vacancies in the cadre of Workshop
hand occurring prior to promulgation of
Uttar Pradesh Police Radio Subordinate
Service (IInd amendment) Rules, 2016 in
accordance with the provisions of Uttar
Pradesh Police Radio Subordinate Service
Rules, 2015."

3. By means of second writ petition,
following prayers have been made:-

"1. Issue a writ, order or
direction in the nature of ceriorari to quash
order
bearing
no.W-43/2019
dated
22.11.2019 passed by the opposite party
no.2 whereby the representation of the
petitioners for promotion on the post of
Workshop Hand under the 25% promotion
quota as prescribed under Rule - 5(1)(a)
read with rule 17 of U.P. Police Radio
Subordinate Service Rules - 2015 as
amended by U.P. Police Radio Subordinate
Service (Ilnd Amendment) Rules 2016, has
been rejected in wholly unlawful and
9 All Mohd. Nijamuddin & Ors. Vs. State of U.P. & Anr.
589
arbitrary manner refusing to hold selection
for promotion to the post of Work Shop
Hand until final disposal of the Writ
Petition No.29369(S/S) of 2016 or vacation
of interim order dated 16.12.2016 and
25.5.2018 passed therein as contained in
annexure no.1 to the writ petition.

2. Issue a writ, order or direction
in the nature of Mandamus commanding
the Opposite Parties to consider the
Petitioners for promotion on the post of
Workshop Hand under Rule - 5(1)(a) read
with rule 17 of U.P. Police Radio
Subordinate Service Rules - 2015 as
amended by U.P. Police Radio Subordinate
Service (Ilnd Amendment) Rules 2016,
against the existing vacancies as shown in
the chart of vacancies of the various posts
of department as on 31.08.2019 contained
in annexure no. 5 to the writ petition
excluding the vacancies which had been
ascertained prior to U.P. Police Radio
Subordinate Service (Ilnd Amendment)
Rules 2016 i.e. 19.10.2016 (the date of
notification no.18/2016/2792/6-Pu-01-161300 (7)/ 1994 whereby the U.P. Police
Radio
Subordinate
Service
(IInd
Amendment) Rules 2016 were notified)
within a short reasonable period to be
prescribed by this Hon'ble Court in the
interest of Justice."

4. In both the writ petitions since the
question of law to be adjudicated is one and
same, therefore, with the consent of learned
counsel for the parties I hereby dispose of
both the writ petition by means of common
order.

5. The question to be adjudicated in
both the writ petitions is that as to whether
the promotion on the post of Workshop
Hand in Uttar Pradesh Police Radio Branch
Headquarters,
Lucknow
(hereinafter
referred to as "department in question") for
the vacancies occurring prior to the year
2016 can be made on the basis of Uttar
Pradesh Police Radio Subordinate Service
(Second Amendment) Rules, 2016 or in
view of the provisions of Uttar Pradesh
Police Radio Subordinate Service Rules,
2015.

6. Ignoring the detailed facts of the
issue in question, only those facts are being
considered
which
are
necessary
to
adjudicate the issue in question.

7. In both the writ petitions, the
petitioners were initially appointed on the
post of Messenger Peon/ Group 'D' post
from the year 1989 to 1993. Later on, all
the petitioners were confirmed on such post
and have been allowed all service benefits
admissible as per law e.g. selection grade,
promotional pay scale, benefit of A.C.P.
etc.

8. Notably, for the U.P. Police Radio
Branch of the Police Force, the Governor
of U.P. in exercise of powers vested in him
under Section 15 of the U.P. Pradeshik
Armed Constabulary Act, 1948 (hereinafter
referred to as "the Act, 1948") promulgated
the U.P. Police Radio Subordinate Service
Rules, 1982 regulating the appointment and
other conditions of service of the posts in
the U.P. Police Radio Subordinate Service.
According to Rule 4 of the aforesaid Rules,
the cadre of the U.P. Police Radio
Subordinate Service would comprise of the
posts
of
Workshop
Hand,
Assistant
Operator, Head Operator, Radio Station
Officer, Radio Maintenance Officer and
Radio Inspector in that hierarchy.

9. At the time when the aforesaid
Rules were promulgated, according to the
then existing provisions of Rule 5 (1) of the
aforesaid Rules, the posts of Workshop
590 INDIAN LAW REPORTS ALLAHABAD SERIES
Hands were to be filled up entirely by
direct recruitment. Further, as per Rule 5
(2) of aforesaid Rules, the posts of
Assistant Operators were to be filled upto
the extent of 90% by direct recruitment and
10% by promotion from amongst such
permanent Workshop Hands, who had
qualified Grade-III Operators Course.

10. Subsequently, by means of
notification dated 14.2.1998, the Governor
of U.P. promulgated the U.P. Police Radio
Subordinate Service (First Amendment)
Rules, 1997 (hereinafter referred to as
"Rules, 1997"), whereby Rule 5 (1) of the
aforesaid Rules was substituted by a new
rule which provides that the post of
Workshop Hand would be filled up to the
extent of 75% by direct recruitment and
25% by promotion from amongst such
Group 'D' employees working in the U.P.
Police Radio Branch, who had qualified the
High School Examination conducted by the
U.P.
Board
of
High
School
and
Intermediate or who had qualified the
training course in the trade from a
Government recognized Industrial Training
Institute which would be useful for the
work as a Workshop Hand in the
department or any other course recognized
as equivalent thereto and had put in five
years of service as Group 'D' employee.

11. From the aforesaid Rules, as
amended in the year 1997, it is apparent
that as far as Group 'D' employees of the
Radio Branch are concerned, for the first
time in the year 1997 an avenue for
promotion to the post of Workshop Hand
was provided to the extent of 25% of the
posts and the Group 'D' employees, who
were
eligible
for
promotion
to
the
Workshop Hand were those who had
qualified the High School Examination or
those who had obtained Industrial Training
Institute Certificate from any Government
recognized Industrial Training Institute
(hereinafter referred to as "I.T.I.") in a trade
which would be useful for the work of
Workshop Hand in the U.P. Police Radio
Branch.

12. As far as direct recruitment to the
posts of Workshop Hand was concerned,
the educational qualification required was
the same as that required for promotion,
i.e., qualifying High School Examination or
obtaining an I.T.I. certificate. Thus, it is
apparent that for the post of Workshop
Hand, an I.T.I. certificate in any trade was
not an essential qualification for either
direct recruitment or promotion.

13. On 28.9.2015, the Governor of
U.P. in exercise of his power vested under
the Act, 1948 promulgated the U.P. Police
Radio Subordinate Service Rules, 2015
(hereinafter referred to as "Rules, 2015")
superseding all the existing Rules thereby
the qualification of I.T.I. or equivalent was
made compulsory considering the nature
and duties to be performed by the
Workshop Hands as they deal with the
technical equipments like wireless set etc.

14. On 19.10.2016, the Uttar Pradesh
Police Radio Subordinate Service (Second
Amendment) Rules,
2016
(hereinafter
referred to as "Rules, 2016") were notified
whereby and whereunder vide Rule 2 (a)
(ii),
high
school
passed
group
'D'
employees have been brought into the field
of eligibility for promotion in the cadre of
Workshop Hand or who had qualified the
I.T.I. course. As a matter of fact, by means
of Second Amendment in the Rules made
in the year 2016, such qualification was
revived which was there as per Rules 1982.
The difference between Rules, 2015 and
Rules, 2016 is that vide Rules, 2015, the
9 All Mohd. Nijamuddin & Ors. Vs. State of U.P. & Anr.
591
qualification
of
having
I.T.I.
was
mandatory with High School examination
but by means of Rules, 2016, such
qualification was one of the qualifications.
In other words, vide Rules, 2015, the
employee must have qualified High School
Examination/ Intermediate Examination
and must have possessed the I.T.I. course
but vide Rules, 2016, the employee having
qualified
High
School/
Intermediate
Examination or the employee having
qualified I.T.I. course is eligible.

15. In the first writ petition the
impression was given to the Court to the
effect that the Rules, 2016 were difference
from Rules, 2015 but this fact has not been
apprised that the Rules, 2016 are the same
as of the Rules, 1982. Further, the
candidate, who was eligible as per Rules,
2015, was also eligible as per Rules, 2016
inasmuch as in both the Rules one
qualification, i.e. having qualified High
School/
Intermediate
Examination
is
common. So as to understand minutely the
conditions of Rules, 2015 and Rules, 2016,
a thin line difference is that Rules, 2015
used
the
term
'and'
between
two
qualifications i.e. High School qualification
and I.I.T. certificate whereas Rules, 2016
provide the term 'or' i.e. High School
Examination or I.T.I. certificate. The
candidates who were qualified as per Rules,
2015 may not be disqualified for the Rules,
2016, therefore, the grievance of such
employees, the petitioners, is misconceived
whereby they are saying that the conditions
of Rules, 2016 are making prejudice to
them.

16. On 28.11.2015, the department
finalized inter-se seniority list of group 'D'
for the purposes of promotion in the cadre
of
Workshop
Hand
from
amongst
permanent group 'D' employees.

17. On 2.5.2016, the department sent
a requisition to the Uttar Pradesh Police
Services
Recruitment
and
Promotion
Board, Lucknow (hereinafter referred to as
"the Board") for filling up the vacancies in
the cadre of Workshop Hand occurring in
the department. On 16.5.2016, eight
vacancies for promotion has been notified
apprising
to
the
Board
for
taking
appropriate steps.

18. However, Sri Amit Bose, learned
counsel for the intervener has submitted
that by Rule 2 of the Rules, 2016, Rule 5
(a) (ii) of the Rules, 2015 has been
substituted by the amending provisions.
The effect of substitution of the earlier rule
by the subsequent rule is that the old rule is
replaced and the new rule is enacted with
the result that it has to be treated that the
substituted rule was always in existence as
against the old rule, which is obliterated
from the statute book.

19. Sri Bose has further submitted
that in view of the aforesaid principle of
law, once Rule 5 (a) (ii) of the Rules, 2015
was substituted by new Rule, it has to be
treated that new law was in force right from
the inception. In view of the above, the
entire argument of the learned counsel for
the petitioners that the vacancies of the post
of Workshop Hand said to have occurred
while the original Rule 5 (a) (ii) of the
Rules, 2015 was in force have to be filled
up as per said rule and not on the basis of
substituted rule as inserted under the Rules,
2016 losses all significance and does not
deserve any consideration.

20. However, Sri A.P. Singh, learned
Senior Advocate, has submitted that since
the vacancies in question were prior to the
year 2016, therefore, such vacancies should
be filled up through old rules i.e. Rules,
592 INDIAN LAW REPORTS ALLAHABAD SERIES
2015 inasmuch as the rule of game cannot
be changed during the stage of selection
process.

21. Sri A.P. Singh has placed reliance
upon the judgment of the Hon'ble Apex
Court in re; Md. Raisul Islam & Ors. v.
Gokul Mohan Hazarika & Ors., JT 2010
(6) SC 632, by submitting that the Hon'ble
Apex Court has been pleased to hold that
once the process of selection had started
under the prevalent Rules, it cannot take a
stand that the said selection could be
completed in terms of Amended Rules.

22. Sri Singh has also cited the dictum
of the Full Bench of this Court in re;
Santosh Kumar Singh v. State of U.P. and
others, [2015 (7) ADJ 179 (FB)], by
submitting that the vacancies in question
should be filled up pursuant to the
advertisement and the prevalent Rules at that
point of time. In support of his aforesaid
submission, he has also cited some more
dictums of the Hon'ble Apex Court in re;
Gaurav Pradhan & Ors. v. State of
Rajasthan & Ors, JT 2017 (9) SC 501,
Assam Public Service Commission v.
Pranjal Kumar Sarma, (2019) 17 SCALE
542, Ramjit Singh Kardam v. Sanjeev
Kumar, AIR 2020 SC 2060, Rashmi
Ranjan Nayak v. Union of India & others,
2015 SCC OnLine Ori 300, and Union of
India & Others v. Krishna Kumar, (2019)
4 SCC 319.

23. Sri Amit Bose, learned Senior
Advocate, as well as learned Standing
Counsel
has
reiterated
that
after
the
amendment in Rules, 2016 regarding the
qualification for the post of Workshop Hand,
such qualifications indicated under the Rules,
2015 have lost its efficacy and significance,
therefore, the promotion in question should
not be made on the basis of Rules, 2015.

24. Sri Bose has submitted that it is a
settled principle of law that a candidate has a
right to be considered for promotion on the
basis of rules existing on the date of
consideration and it is not an absolute
proposition of law that old vacancies have to
be filled up on the basis of old Rules
(Unamended Rules). The principle of old
vacancies to be filled up on the basis of old
rules can only apply in case the candidates,
who were eligible under the old Rules, were
ousted for consideration as a result of the
Amended Rules. In the instant case, the
position is otherwise as under Rule 5 (a)(ii) of
Rules, 2015 the candidate possessing only
High School Examination without possessing
I.T.I. certificate were totally ousted by use of
the
word
'and'
between
both
the
qualifications. On the other hand, as a result
of substituted Rule 5 (a) (ii) of the Rules,
2016,
Class-IV
employees
having
qualification of High School and I.T.I.
certificate would not be ousted from
consideration zone but they continue to be
eligible for said promotion. Therefore, Sri
Bose has submitted that the dictum of the
Hon'ble Apex Court in re; Deepak Agarwal
and Another v. State of Uttar Pradesh and
Others, (2011) 6 SCC 725 and Y. V.
Rangaiah and Others v. J. Sreenivasa Rao
and Others, (1983) 3 SCC 284, which
categorically provide that old vacancies
should be filled up as per old rules are
distinguishable and would not apply in the
present case inasmuch as the protection of the
dictum of the Hon'ble Apex Court in re;
Deepak Agarwal (supra) and Y. V.
Rangaiah (supra) would be available to those
candidates, who are being ousted on account
of Amended Rules i.e. Rules, 2016.

25. Having heard learned counsel for
the parties and having perused the material
available on record, I am of the considered
opinion that any selection process initiated
9 All Mohd. Nijamuddin & Ors. Vs. State of U.P. & Anr.
593
pursuant to the advertisement shall be
finalized in terms of the existing rules to
fill up the vacancies of direct recruitment
but the same analogy would not be applied
in case of promotion inasmuch as at the
time of making promotion, it has to be seen
as to what are the mandatory qualifications
for the candidates. However, one relevant
aspect has to be taken into consideration
that as to whether such amendment in the
qualification by amending the rules is
precluding the candidates/employees, who
were possessing the requisite qualification
as per unamended rules or not. If the
amended qualification is precluding those
candidates, who were otherwise eligible as
per unamended rules, may not be made
sufferer.

26. The Hon'ble Apex Court in re; Y.
V. Rangaiah (supra) has held that the
vacancies in the promotional post occurring
prior to the amendment have to be filled up
in accordance with the unamended rules.

27. Thereafter, the Hon'ble Apex
Court in re; Deepak Agarwal (supra) has
held that it is the rules which are prevalent
at the time when the consideration took
place for promotion, which would be
applicable. A candidate has the right to be
considered in the light of existing rules,
which implies 'rule in force' on the date the
consideration took place. There is no rule
of universal or absolute application that
vacancies are to be filled invariably by the
law existing on the date when the vacancy
arises.

28. The Hon'ble Apex Court in re;
State of Tripura and others Vs. Nikhil
Ranjan Chakraborty and others, (2017) 3
SCC 646, has held that a candidate only has
right to be considered in the light of existing
rules, namely, rules in force on the date on
which consideration for promotion takes
place and there is no rule of absolute
application that vacancies must invariably be
filled by law existing on the date when they
arose. Paragraphs 8 & 9 of the aforesaid
judgment are being reproduced herein
below:-

"8. In Deepak Agarwal [Deepak
Agarwal v. State of U.P., (2011) 6 SCC 725 :
(2011) 2 SCC (L&S) 175] the appellants
were Technical Officers who along with
Assistant Excise Commissioners were eligible
to be considered for promotion to the post of
Deputy Excise Commissioner. Two days
before the DPC was scheduled to meet to
consider the cases of all eligible officers for
promotion,
the
Rules
concerned
were
amended and Technical Officers stood
excluded as the feeder post for the next
promotional
post
of
Deputy
Excise
Commissioner. The challenge to such
exclusion having been negated [Deepak
Agarwal v. State of U.P., 2002 SCC OnLine
All 1279 : 2002 All LJ 1701] by the High
Court, the matter reached this Court and the
relevant paragraphs of the decision were:
(Deepak Agarwal case [Deepak Agarwal v.
State of U.P., (2011) 6 SCC 725 : (2011) 2
SCC (L&S) 175] , SCC pp. 728 & 734-35,
paras 2 & 23-26)

"2. The old vacancies have to be
filled under the old rules is the mantra sought
to be invoked by the appellants in support of
their claim that the vacancies arising prior to
17-5-1999, ought to be filled under the 1983
Rules as they existed prior to the amendment
dated 17-5-1999. The claim is based on the
principle enunciated by this Court inY.V.
Rangaiah v. J. Sreenivasa Rao [Y.V.
Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC
284 : 1983 SCC (L&S) 382] .
***

23. Could the right of the
appellants, to be considered under the
594 INDIAN LAW REPORTS ALLAHABAD SERIES
unamended 1983 Rules be taken away? The
promotions to the 12 vacancies have been
made on 26-5-1999 under the amended
Rules. The High Court rejected [Deepak
Agarwal v. State of U.P., 2002 SCC OnLine
All 1279 : 2002 All LJ 1701] the
submissions of the appellants that the
controversy herein is squarely covered by
the judgment of this Court in Y.V. Rangaiah
[Y.V. Rangaiah v. J. Sreenivasa Rao,
(1983) 3 SCC 284 : 1983 SCC (L&S) 382] .
The High Court has relied on the judgment
of this Court in K. Ramulu v. S.
Suryaprakash Rao [K. Ramulu v. S.
Suryaprakash Rao, (1997) 3 SCC 59 : 1997
SCC (L&S) 625] .

24. We are of the considered
opinion that the judgment in Y.V. Rangaiah
case [Y.V. Rangaiah v. J. Sreenivasa Rao,
(1983) 3 SCC 284 : 1983 SCC (L&S) 382]
would not be applicable in the facts and
circumstances of this case. The aforesaid
judgment was rendered on the interpretation
of Rule 4(a)(1)(i) of the Andhra Pradesh
Registration and Subordinate Service Rules,
1976. The aforesaid Rule provided for
preparation of a panel for the eligible
candidates every year in the month of
September. This was a statutory duty cast
upon the State. The exercise was required to
be conducted each year. Thereafter, only
promotion orders were to be issued.
However, no panel had been prepared for the
year 1976. Subsequently, the Rule was
amended, which rendered the petitioners
therein ineligible to be considered for
promotion. In these circumstances, it was
observed by this Court that the amendment
would not be applicable to the vacancies
which had arisen prior to the amendment.
The vacancies which occurred prior to the
amended Rules would be governed by the old
Rules and not the amended Rules.

25. In the present case, there is
no statutory duty cast upon the respondents
to either prepare a yearwise panel of the
eligible candidates or of the selected
candidates for promotion. In fact, the
proviso to Rule 2 enables the State to keep
any post unfilled. Therefore, clearly there
is no statutory duty which the State could
be mandated to perform under the
applicable Rules. The requirement to
identify the vacancies in a year or to take a
decision as to how many posts are to be
filled under Rule 7 cannot be equated with
not issuing promotion orders to the
candidates duly selected for promotion. In
our opinion, the appellants had not
acquired any right to be considered for
promotion. Therefore, it is difficult to
accept the submissions of Dr Rajeev
Dhavan that the vacancies, which had
arisen before 17-5-1999 had to be filled
under the unamended Rules.

26. It is by now a settled
proposition of law that a candidate has the
right to be considered in the light of the
existing rules, which implies the "rule in
force" on the date the consideration took
place. There is no rule of universal or
absolute application that vacancies are to
be filled invariably by the law existing on
the date when the vacancy arises. The
requirement of filling up old vacancies
under the old rules is interlinked with the
candidate having acquired a right to be
considered for promotion. The right to be
considered for promotion accrues on the
date of consideration of the eligible
candidates.
Unless,
of
course,
the
applicable rule, as in Y.V. Rangaiah case
[Y.V. Rangaiah v.J. Sreenivasa Rao, (1983)
3 SCC 284 : 1983 SCC (L&S) 382] lays
down any particular time-frame, within
which the selection process is to be
completed.
In
the
present
case,
consideration for promotion took place
after the amendment came into operation.
Thus, it cannot be accepted that any
9 All Mohd. Nijamuddin & Ors. Vs. State of U.P. & Anr.
595
accrued or vested right of the appellants
has been taken away by the amendment."

9. The law is thus clear that a
candidate has the right to be considered
in the light of the existing rules, namely,
"rules
in
force
on
the
date"
the
consideration takes place and that there
is no rule of absolute application that
vacancies must invariably be filled by the
law existing on the date when they arose.
As against the case of total exclusion and
absolute deprivation of a chance to be
considered
as
in
Deepak
Agarwal
[Deepak Agarwal v. State of U.P., (2011)
6 SCC 725 : (2011) 2 SCC (L&S) 175] in
the instant case certain additional posts
have been included in the feeder cadre,
thereby
expanding
the
zone
of
consideration. It is not as if the writ
petitioners
or
similarly
situated
candidates were totally excluded. At best,
they now had to compete with some more
candidates. In any case, since there was
no accrued right nor was there any
mandate that vacancies must be filled
invariably by the law existing on the date
when the vacancy arose, the State was
well within its rights to stipulate that the
vacancies be filled in accordance with the
Rules as amended. Secondly, the process
to amend the Rules had also begun well
before the Notification dated 24-112011."

29. Recently, the Apex Court in two
cases in re; Union of India and Others v.
Krishna Kumar and Others, (2019) 4 SCC
319 and State of Orissa and Another v.
Dhirendra Sundar Das and Others, (2019)
6 SCC 270, has held that the rights to be
considered for promotion in accordance with
the rules as they exist when the exercise is
carried out for promotion. In both the
aforesaid judgments, all relevant case laws on
the subject have been considered.

30. I have also considered the relevant
facts of the present case that in view of the
qualification being prescribed under the
Amended Rules, 2016 the candidates, who
were qualified as per unamended Rules i.e.
Rules, 2015, have not been ousted from
zone of consideration. Therefore, case of
the petitioners may not be said to have been
prejudiced on account of Amended Rules,
2016, so their claim that they be considered
for
promotion
strictly
in
terms
of
unamended Rules, 2015 is absolutely
misconceived.

31. When the petitioners are not being
ousted on account of Amended Rules, 2016
so far as it prescribes qualification to be
promoted on the post of Workshop Hand,
then for all other purposes making
promotion from Class-IV to Workshop
Hand, the provisions of Rules, 2016 shall
be taken into account inasmuch as after the
amendment in the Rules, 2015 regarding
qualification by means of Rules, 2016, such
prescription by unamended Rules shall
loose all significance and does not deserve
any consideration.

32. The Hon'ble Apex Court in re;
Zile Singh v. State of Haryana and
Others, (2004) 8 SCC 1, has held in para25 as under:-

"25. Substitution of a provision
results in repeal of the earlier provision
and its replacement by the new provision
(see Principles of Statutory Interpretation,
ibid., p. 565). If any authority is needed in
support of the proposition, it is to be found
in West U.P. Sugar Mills Assn.v.State of
U.P.[(2002)
2
SCC
645],
State
of
Rajasthan v. Mangilal Pindwal [(1996) 5
SCC 60] , Koteswar Vittal Kamath v. K.
Rangappa Baliga and Co. [(1969) 1 SCC
255] and A.L.V.R.S.T. Veerappa Chettiar v.
596 INDIAN LAW REPORTS ALLAHABAD SERIES
S. Michael [AIR 1963 SC 933] . In West
U.P. Sugar Mills Assn. case [(2002) 2 SCC
645] a three-Judge Bench of this Court
held
that
the State
Government
by
substituting the new rule in place of the old
one never intended to keep alive the old
rule. Having regard to the totality of the
circumstances centring around the issue
the Court held that the substitution had the
effect of just deleting the old rule and
making the new rule operative. In Mangilal
Pindwal case [(1996) 5 SCC 60] this Court
upheld the legislative practice of an
amendment
by
substitution
being
incorporated in the text of a statute which
had ceased to exist and held that the
substitution would have the effect of
amending the operation of law during the
period in which it was in force. In
Koteswar case [(1969) 1 SCC 255] a threeJudge Bench of this Court emphasised the
distinction between "supersession" of a rule
and "substitution" of a rule and held that
the process of substitution consists of two
steps: first, the old rule is made to cease to
exist and, next, the new rule is brought into
existence in its place"

33. Therefore, in view of the above,
the effect of substitution of rule by another
is that the old rule is repealed and the new
rule is re-enacted with the result that it has
to be treated that the substituted rule was
always
in
existence
from
the
very
inception. The Hon'ble Apex Court in re;
Gottumukkala Venkata Krishamraju v.
Union of India, 2018 SCC OnLine SC
1386, vide paras-15 & 16 has observed as
under:-

"15. Ordinarily wherever the
word "substitute" or "substitution" is used
by the legislature, it has the effect of
deleting the old provision and make the
new provision operative. The process of
substitution consists of two steps : first, the
old rule is made to cease to exist and, next,
the new rule is brought into existence in its
place. The rule is that when a subsequent
Act amends an earlier one in such a way as
to incorporate itself, or a part of itself, into
the earlier, then the earlier Act must
thereafter be read and construed as if the
altered words had been written into the
earlier Act with pen and ink and the old
words scored out so that thereafter there is
no need to refer to the amending Act at all.
No doubt, in certain situations, the Court
having regard to the purport and object
sought to be achieved by the legislature
may construe the word "substitution" as an
"amendment" having a prospective effect.
Therefore, we do not think that it is a
universal rule that the word "substitution"
necessarily
or
always
connotes
two
severable steps, that is to say, one of repeal
and another of a fresh enactment even if it
implies two steps. However, the aforesaid
general meaning is to be given effect to,
unless it is found that the legislature
intended otherwise. Insofar as present case
is concerned, as discussed hereinafter, the
legislative intent was also to give effect to
the amended provision even in respect of
those incumbents who were in service as on
September 01, 2016.

16. The effect, thus, would be to
replace Section 6 as amended with the
intention as if this is the only provision
which exist from the date of introduction
and the earlier provision was not there at
all. The effect of this would be that all those
incumbents who are holding the post of
Presiding Officer on September 01, 2016
would be governed by this provision."

34. Therefore, in view of the facts,
circumstances and case laws so cited by the
learned counsel for the parties, I do not find
any good ground to direct the opposite
9 All Deo Narain Yadav Vs. State of U.P.
597
parties to fill up the vacancies in the cadre
of Workshop Hand occurring prior to the
promulgation of Rules, 2016 in accordance
with the provisions of Rules, 2015. Since
the qualifications so prescribed under the
Amended Rules, 2016 are the same as were
prescribed under the very first Rules i.e.
Rules, 1982 and the qualification so
inserted by means of Rules, 2015 on
28.9.2015
remained
in
force
till
19.10.2016, however, vide Amended Rules,
2016 the qualifications indicated under
such Rules i.e. Rules, 2016 are not ousting
the petitioners from the consideration zone
of promotion on the post of Workshop
Hand and such Rules, 2016 are governing
the field for all practical purposes,
therefore, the opposite parties are directed
to make promotion on the post of
Workshop Hand identifying entire existing
vacancies
in
the
promotional
quota
completing such exercise with expedition,
preferably within a period of three months
thereby promoting all suitable candidates
from Class-IV post to the post of Workshop
Hand strictly in accordance with Rules,
2016. The interim orders, if any, in these
writ petitions would be treated to have been
merged in this order.

35. So far as the prayer in both the
writ petitions that vacancies occurring prior
to the year 2016 should be filled up on the
basis of unamended Rules, 2015 is hereby
rejected. However, all the vacancies of
Workshop Hand lying vacant in the
Department as on today shall be filled up
strictly as per the directions made herein
above within time so stipulated.

36. In the aforesaid terms, both the
writ petitions are disposed of.
----------
(2021)09ILR A597
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 84 of 1983

Deo Narain Yadav ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri S.K. Singh, Sri A.K. Srivastava, Sri Apul
Misra, Sri H.K. Yadav, Sri M.N. Tiwari, Sri
P.C. Srivastava, Sri P.N. Misra, Sri Rahul
Misra, Sri S.kumar, Sri V.M. Zaidi

Counsel for the Opposite Party:
D.G.A.

(A)
Criminal
Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Section 302 - The Code of criminal
procedure, 1973 - Section 313 - Indian
Evidence Act, 1872 - section 8 - oral
testimony
of
a
witness
cannot
be
discarded simply on the ground that he is
interested witness or inimical or chance
witness - What is required is cautious
approach in scrutiny and appreciation of
his
testimony
-
where
eye-witness
account is produced motive looses its
significance.(Para -9,16 )

Agricultural
plots
of
deceased
and
(accused/appellant) are adjacent - enmity
between
them
regarding
dismantling
of
boundary (mend) - co - villager (PW-2) asked
accused not to quarrel - accused advanced
ahead, PW-2 caught hold of him but accused
jerked him, and PW-2 fell down - accused fired
gun shot at deceased - hit his head and skull
blown off - fell down and died on the spot - son
of deceased also Informant (PW-1) - lodged
F.I.R. - trial court convicting the appellant (
accused) under section 302 and sentencing him
to life imprisonment - hence appeal.