JUDGMENT

SURINDER SINGH NIJJAR, J.

1. This appeal is directed against the judgment of the High Court of Judicature at Allahabad dated 16th April, 2002, dismissing the writ petition challenging the Notification dated 17th May, 1999, wherein the appellants had been rendered ineligible for promotion to the post of Deputy Excise Commissioner (DEC) and the Notification dated 26th May, 1999, promoting respondents No. 3 to 9 as Deputy Excise Commissioner, and further to consider and promote the appellants as Deputy Excise Commissioner, on the vacancies that arose before 17th May, 1999.

2. 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 17th May, 1999, ought to be filled under the 1983 Rules as they existed prior to the amendment dated 17th May, 1999. The claim is based on the principle enunciated by this Court in Y.V. Rangaiah & Ors. v. J.Sreenivasa Rao & Ors. [1983 (3) SCC 284].

3. The appellants were recruited through the Uttar Pradesh Public Service Commission on Class II posts in the Excise Department under the Excise Commissioner, Uttar Pradesh. Deepak Agarwal (hereinafter referred to as `appellant No.1') was appointed on the post of Technical Officer in the pay scale of Rs.2200-4000 by an order dated 13th August, 1991. Similarly, Jogendra Singh (hereinafter referred to as `appellant No. 2') was directly recruited through the Uttar Pradesh Public Service Commission and appointed on the post of Statistical Officer by Notification dated 8th January, 1992 in the pay scale of Rs.2200-4000. It is not disputed that both the appellants are confirmed in service. There is no adverse entry in their service record. The appellants are the only two officers recruited directly to Class II Excise Service. Otherwise, majority of the officers have entered service as Inspectors in the Excise Department and subsequently promoted to higher posts.

4. The U.P. Excise Group `A' Service Rules, 1983 govern the procedure for recruitment and conditions service of officers of Group `A' of the Excise Department. Initially under Rule 5(2) only Assistant Excise Commissioners and Technical Officers were eligible for promotion. Subsequently by amendment of the 1983 Rules on 22nd June, 1998, Statistical Officers were also made eligible for promotion to the post of Deputy Excise Commissioner.

5. It came to the knowledge of the appellants that U.P. Excise Officers Sangh, Allahabad had filed a representation before the State Government in the month of September, 1998 protesting against the inclusion of the Technical Officers and Statistical Officers in the feeder cadre for promotion to the post of Deputy Excise Commissioner. The appellants, therefore, also made representations before the Departmental Promotion Committee (DPC). In the year, 1997-98 and 1998-99, 12 vacancies arose for the post of Deputy Excise Commissioner. Out of these 12 vacancies, 10 vacancies had arisen prior to 17th May, 1999 and 2 vacancies had arisen on 30th June, 1999 due to the retirement of Deputy / Joint Excise Commissioner. It is the case of the appellants that they were entitled to be considered for the aforesaid 10 vacancies under Rule 5(2).

6. In spite of the representation made by the appellants, the 1983 Rules were amended on 17th May, 1999. By the aforesaid amendment, the posts of Technical Officers and Statistical Officers have been excluded from the feeder cadre for promotion to the post of Deputy Excise Commissioner. This amendment came just two days before the DPC was scheduled to meet on 19th May, 1999. As a consequence of the amendment, the DPC did not consider the appellants for promotion. The justification given for the aforesaid amendment is that the State Government had taken a 'conscious decision' to exclude the Technical Officers and Statistical Officers as they were not fit for the post of Deputy Excise Commissioner because of their peculiar qualificatio