IMPORTANT POINTS
Right to be considered for promotion will accrue only as per "rules in force on the date" the consideration takes place.
There is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose.
When restructuring creates two interrelated posts, one being the feeder post to the other, by two Rules, restructuring will take effect from the date of latter Rules.
When a statutory Rule is challenged, either it has to be upheld or declared ultra vires if warranted or read down if possible.
Vacancies already filled up cannot be subjected to a review based on Rules relating to seniority in subsequent Rules.
Vacancies arising but not filled up before enforcement of new Rules cannot be filled up as per old Rules.
Restructuring cannot take away accrued rights.

JUDGMENT

K.M. Joseph, J.

Civil Appeal Nos. 1970-1975 of 2009 and Civil Appeal No. 1976 of 2009, having been heard together, and as there are certain common issues, they are being disposed of by the following common Judgment.

2. In Civil Appeal Nos. 1970-1975 of 2009, the controversy revolves around the entitlement to promotion to the post of Inspector of Central Excise. In Civil Appeal No. 1976 of 2009, on the other hand, the controversy relates to the right to be promoted to the post of U.D. Clerk and Tax Assistant in the Central Excise Department. Both these cases arise out of Original Applications (O.A.s) filed before the Central Administrative Tribunal (CAT), Hyderabad and the Orders of the Tribunal in the cases being questioned in a batch of Writ Petitions. As far as Civil Appeal Nos. 1970-1975 of 2009 are concerned, the CAT allowed O.A. 1362 of 2002 and directed the appellants in Civil Appeal Nos. 1970-1975 of 2009 to be considered for promotion to the post of Inspectors. They were originally recruited as Data Entry Operators (DEOs) Grade 'A' and had been working as Data Entry Operators Grade 'B' from the year 2000. In short, the appellants, as applicants before the Tribunal, had called in question the legality of Notice dated 05.11.2002 seeking to confine the promotion to the post of Inspector, to category of Tax Assistant, Upper Division (UD) Clerk, Stenographer Grade-II, etc., with certain years of experience, for promotion. Six Writ Petitions came to be filed, including by the Union of India and the official respondents, challenging the said verdict by which the appellants were also directed to be considered. A Division Bench of the High Court proceeded to consider the matter. Justice G. Bikshapathy wrote an opinion allowing the Writ Petitions, setting aside the Order of the Tribunal. The other learned Judge, who constituted the Division Bench, wrote a separate concurring Judgment, and thus, the Writ Petitions came to be allowed. What is found by the High Court is that the Writ Petitioners were having a legal right, under the erstwhile Rules which were made in the year 1979, to be considered for promotion to the vacancies which arose prior to the Rules which came to be made with effect from 07.12.2002 in regard to the post of Inspector. The High Court also found that it was only when the Rules were made in the year 2003 that the restructuring in the Department, to which the Cabinet gave its approval on 19.07.2001, came into effect. Regarding vacancies arising after 07.12.2002, it was left undecided.

3. As far as Civil Appeal No. 1976 of 2009 is concerned, it arises from O.A. 1040 of 2003, again decided by the CAT, Hyderabad.

4. The impugned Order of the High Court reveals that the High Court allowed the Writ Petition filed against the Order of the Tribunal following the Judgment of the High Court in the Writ Petitions which formed the subject matter of the controversy relating to Inspectors and which is the subject matter of Civil Appeal Nos. 1970-1975 of 2009. In other words, following the principle that the vacancies must be filled-up in accordance with the extant Rules, the court found that promotions to the post of U.D. Clerk and Tax Assistant must be effected on the basis of the rights crystallized under the 1979 Rules, as amended.

A LOOK AT THE RULES

THE 1979 RULES REGARDING POST OF INSPECTOR

5. In 1979, the Rules known as the Central Excise and Land Customs Department Group 'C Posts Recruitment Rules, 1979, came to be enacted (in short, 'the 1979 Rules'). The Rules were made under Article 309 of the Constitution of India. In the said Rules, apart from the post of Inspector (Senior Grade){inter alia) with a scale of pay of Rs. 550-25-750-E.B.-30-900, which is shown as a post to be filled-up by promotion, there is the post of Inspector (Ordinary Grade). It is this post which has generated the controversy in Civil Ap