IMPORTANT POINT
Candidates have the right to be considered for promotion under the rules in force at the time of consideration, not those in effect when vacancies arose.

JUDGMENT :

Amit Rawal, J.

1. Petitioner is aggrieved of the dismissal of the O.A., filed by him before the Central Administrative Tribunal, challenging the seniority list Annexure – A1 promulgated in 2018 on account of merger of the cadre of Fireman with Driver Operator and also on account of promulgation of new recruitment Rules in 2012.

2. The feeder cadre to the promotion post of Leading Fireman, prior to restructuring, was only from Firemen. However on account of merger, the posts of Fireman and Driver Operator got merged and both of them became eligible for promotion. The Rules prevailing before restructuring, given the chance of promotion to the Fireman only. The Recruitment Rules came into force on 13.09.2012 and as per paragraph No.2(II), the post having different pay scale prior to 6^th CPC recommendation and after merger if come to lie in the same Pay Band with the same Grade Pay, the inter se seniority of all the employees will be fully maintained with the employees in a higher pre-revised pay scale, being placed higher vis-a-vis an employee in a lower pay scale. Concededly, the pay scale of the Driver Operators prior to the merger was Rs.950-1500 whereas that of the Fireman was Rs.775-1025. On the basis of restructuring, the pay scale of Fireman and Driver Operator was Rs.5200- 20200 with grade pay of Rs.1900/-. For promotion to the post of leading Fireman, having a Grade Pay of Rs.2000/- with the same pay scale, i.e., Rs.5200-20200, persons eligible for promotion are Fireman Driver Operator with three(3) years of regular service who have passed departmental test conducted by the department from time to time. Concededly, the applicant was eligible as he had three(3) years of regular service and passed the departmental test. Respondents No.3 to 17 were working as Firemen and have been promoted as Leading Firemen on the basis of vacancies occurred prior to the amendment caused in the Recruitment Rules as per the prevailing judicial pronouncement. However, in 2018, vide Annexure – A1, department came out with a seniority list placing the applicant below the party respondents. This gave him cause of action to invoke the jurisdiction of Central Administrative Tribunal, as the said seniority was not fixed in terms of Rule 2(II) of 2012. Learned Tribunal disposed off the O.A. by keeping the zone of consideration of the party respondents from Fireman to Leading Fireman according to the vacancies existing in the erstwhile Rules, with a further clarification that the remaining promotions will be as per the new Recruitment Rules.

2. Adv.Kala.T.Gopi, learned counsel appearing on behalf of the petitioner submitted that there has been a change in the law with regard to the applicability of the Recruitment Rules on the date when the promotions are considered. It is the conceded position on record that party respondents were promoted during the pendency of O.A. i.e., when the 2012 Rules were already in force. Though we have not been informed whether his promotion was in respect of the vacancy which occurred in 2012 but it must have been on that account alone.

3. In Union of India and Others v. Krishnakumar and Another [(2019) 4 SCC 319] considering the promotional avenue of Havildars to the post of Naib Subedars, the structure of Assam Rifles underwent a change by creation of intermediate post of Warrant Officer and the persons who were holding the post of Havildars were to be considered for promotion to the post of Warrant Officers. The High Court directed that the vacancies which arose prior to the amendment are to be filled up by the Rules prior to the amendment. However, the aforementioned direction was not accepted by the Supreme Court and the judgment of the High Court was set aside by observing as under in paragraph No.14:

14. In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of