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2004 DIGILAW 528 (KAR)

K. G. HADPAD v. REGISTRAR, KARNATAKA UNIVERSITY

2004-09-02

N.KUMAR

body2004
N. KUMAR, J. ( 1 ) PETITIONER was appointed to the post of "computer" by respondent -1 to work in the Karnataka university Press as per Annexure --A. He has been working since 12th June 1975. As on the date of the Writ Petition, he has put in 19 years of service in the Press. Petitioner is a B. A. graduate. He has also passed Senior Proof Readers examination. The Deputy Director has recommended the case of the petitioner for promotion to the next higher post. The Press Advisory Board in its meeting held on 17. 2. 1992 recommended that petitioner be promoted as Technical Supervisor, the post which will fall vacant on promotion of JA Periera. ( 2 ) WHEN things stood thus, the second respondent wrote a letter dated 7. 10. 1993 (Annexure-B3) to the Registrar of Karnataka University requesting him to delete the recommendation made in respect of the petitioner by the Press Advisory Board. Thereafter the Karnataka University issued an advertisement on 17. 1. 1994 as per Annexure-B5 calling for applications for the post of technical Supervisor to fill up the said vacancy by direct recruitment. Then the petitioner made a representation bringing to the notice of the University that his case has already been recommended for promoting as the said post has to be filled up by way of promotion and therefore it is not proper on their part to issue advertisement for direct recruitment to the said post and that too, reserving the said post for Scheduled Caste candidate. When his request was not considered, petitioner was constrained to file a Writ Petition before this Court in W. P. No. 7231/1994 challenging the said advertisement and attempt on the part of the University to fill up the said post by Scheduled Caste candidate. The Writ Petition was heard on merit and this Court observed that there is only one post and that post cannot be reserved for Scheduled Caste and scheduled Tribe in view of the principles laid down by this Court in DR. The Writ Petition was heard on merit and this Court observed that there is only one post and that post cannot be reserved for Scheduled Caste and scheduled Tribe in view of the principles laid down by this Court in DR. RAJKUMAR v. GULBARGA UNIVERSITY, AIR1990 Kant 320 , AIR1990 KAR 320 , ILR1990 KAR 2125 which was decided following the decision of the Supreme Court reported in AIR1988 SC 959 , 1988 (36 )BLJR269 , JT1988 (1 )SC 496 , 1988 lablc619 , (1988 )II LLJ66 SC , 1988 (1 )SCALE459 , (1988 )2 SCC214 , [1988 ]3 SCR130 , 1988 (3 )SLJ110 (SC ), 1988 (1 )UJ747 (SC ). As the representation made by the petitioner had not yet been considered and disposed of by the University, the Court felt that the proper thing to do was to issue a direction to the University to consider the representation of the petitioner and pass appropriate orders. Till his representation is disposed of, a direction was issued not to fill up the said vacancy. ( 3 ) THE Recruitment Rules for the Industrial Staff of the Karnataka University Press, Dharwar, 1975 provided a pass in the Diploma in Printing and allied subjects at a recognised Polytechnic or a Diploma in Mechanical Engineering with practical experience in the University Press or in recognised large Presses or Firms dealing in Printing machines, for not less than 10 years experience as eligibility criteria for the post of Technical Supervisor. It is not in dispute that the petitioner possess the said qualification. Karnataka University Staff Recruitment statute came to be passed on 16. 1. 1996. The said statute provides that the post of Technical Supervisor has to be filled up by direct recruitment. In pursuance of a direction issued by this Court to consider the representation of the petitioner, University considered the representation in the light of the 1996 statute and by order dated 22. 5. 1998 held that as the said post is to be filled up by direct recruitment, request of the petitioner for promotion was rejected. Before the said order was passed, petitioner had filed a contempt petition in CCC No. 2283/ 1997 complaining of disobedience of the orders passed in W. P. No. 7231/1994. In the said proceedings, the order dated 22. 5. 1998 passed by the University was produced showing compliance of the order in w. P. No. 7231/1994. Before the said order was passed, petitioner had filed a contempt petition in CCC No. 2283/ 1997 complaining of disobedience of the orders passed in W. P. No. 7231/1994. In the said proceedings, the order dated 22. 5. 1998 passed by the University was produced showing compliance of the order in w. P. No. 7231/1994. Accordingly, contempt petition was rejected reserving liberty to the petitioner to challenge the said order. That is how the petitioner has preferred this Writ Petition challenging the order of the University rejecting his request for promotion to the post of technical Supervisor. ( 4 ) AFTER service of notice, first respondent has entered appearance and has filed statement of objections. ( 5 ) THOUGH several prayers are sought for in this Writ Petition, petitioner confines this Writ petition to the prayer seeking quashing of the order passed by the University dated 22. 5. 1998 and for a direction to the respondents to promote the petitioner to the post of Technical supervisor. ( 6 ) IN the Statement of objections filed on behalf of the University, the facts set out above are not disputed. It is contended that right to promotion is a chance of future happenings; the petitioner had not acquired any right which has been taken away; the possibility of promotion either in present or in future is not a acquired right and will not form a protected service condition or a guarantee given to a serving employee that the rules can be altered, amended or new rules brought into existence; that any rule brought into existence will apply to all serving employees. It is also contended that the Statute provides for filling up the post of Technical Supervisor by direct recruitment. Under these circumstances, the petitioner is not entitled to the relief sought for. It is also stated that till today, the said post has remained vacant. There is a bar for the present to fill up the said post either by direct recruitment or by promotion and petitioner cannot compel the University to fill up the said post in the manner he likes. The recommendation of the press Advisory Board is only advisory and it is not binding on the University. Discretion is left to the University to accept the said recommendation or not. The recommendation of the press Advisory Board is only advisory and it is not binding on the University. Discretion is left to the University to accept the said recommendation or not. Therefore, resolution passed by the press Advisory Board would not confer any right on the petitioner to seek for promotion. Therefore, the first respondent contended that petitioner is not entitled to any of the relief sought for. ( 7 ) LEARNED Counsel for the petitioner contends that admittedly, the petitioner had possessed the qualification and experience for the post of Technical Supervisor. Recruitment Rules, 1975 do not provide a mode in which the said post has to be filled up. In the past, the persons who held the said post occupied the said post on promotion. The Press Advisory Board in its meeting has categorically held that Mr. J. A. Periera who was holding the post of Technical Supervisor on being promoted to the next higher post, that post has to be filled up by promoting the petitioner herein. Therefore these undisputed facts show that there was no prohibition for filling up of the said post by promotion. The petitioner is eligible, vacancy did arise and therefore it is too late in the day for the first respondent to contend that petitioner has no right to seek promotion. In so far as the statute which came into force from the year 1996, he submits that as the said statute is not expressly made retrospective, it has to be only prospective and it has no application to the case of the petitioner as his claim for promotion and vacancy arose prior to the commencement of the statute. In this view of the matter, he submits that petitioner is entitled to the relief sought for. ( 8 ) PER contra, learned Counsel for the University submits that petitioner has no right for promotion. It is only mere chance for being promoted. Even in the Recruitment Rules of 1975, nowhere it is stated that the said post has to be filled up by promotion. Recommendation made by the Press Advisory Committee has no legal force and not binding on the University, as it is only recommendatory. It is only mere chance for being promoted. Even in the Recruitment Rules of 1975, nowhere it is stated that the said post has to be filled up by promotion. Recommendation made by the Press Advisory Committee has no legal force and not binding on the University, as it is only recommendatory. 1996 Statute categorically provides that the said post has to be filled up by direct recruitment and therefore the impugned order passed by the first respondent is valid, in accordance with law and do not call for interference. ( 9 ) IN the light of the aforesaid facts and rival contentions the point that arise for my consideration in this Writ Petition is as under: 1) Whether the petitioner had a mere hope or expectation to be considered for promotion or a right accrued to him for promotion? 2) If it is held that he had a right to promotion, whether the same is to be considered in the light of the statute 1996 or the prior rules? ( 10 ) POINT NO. 1: The answer to Point No. 1 rests on the question what exactly is the nature of right for promotion. Is it a statutory right or fundamental right. In order to answer the said question it is necessary to notice the law laid down by the Supreme Court on the point. ( 11 ) THE Supreme Court in the case of COUNCIL OF SCIENTIFIC AND INDUSTRIAL research and Anr. v. K. G. S. BHATT and Anr. , AIR1989 SC 1972 , [1989 (59 )FLR577 ], JT1989 (3 )SC 513 , (1990 )I LLJ246 SC , 1989 (2 )SCALE395 , (1989 )4 scc635 , 1989 (2 )UJ566 (SC ), (1990 )1 UPLBEC5 held as under: it is often said and indeed, adroitly, an organization public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organization not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organization. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organization. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. The organization that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors. There cannot be any modern management much less any career planning, manpower development, management development etc. which is not related to a system of promotions. Again in the case of DR. MS. O. Z. HUSSAIN v. UNION OF INDIA, 1990 SC 311 the Supreme court in uncertain terms laid down the law stating thus: promotion is thus normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non - medical "a" group Scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare state, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. The Supreme Court in the case of STATE OF TRIPURA and Ors. v. K. K. ROY, 2004 SCC (L and S) 651 has reiterated the aforesaid principles. ( 12 ) A Constitution Bench of the Supreme Court in the case of AJIT SINGH and OTHERS (II) v. STATE OF PUNJAB and Ors. , 1999 SCC ( Land S) 1239 dealing with the question whether a promotion is statutory right or fundamental right disagreeing with the view taken earlier by the supreme Court that it is only statutory right held that if it is intended to lay down that the right guaranteed to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (ie. whether on the basis of seniority or merit) is only a. statutory right and not a fundamental right, we cannot accept the proposition. whether on the basis of seniority or merit) is only a. statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16 (1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950. ( 13 ) THE Supreme Court in the case of M. LOGANATHAN and Ors. v. T. N. ELECTRICITY board and Ors. , 1995 SUPP (3) SCC 395 observed as under: "the appellants on passing the test had merely a hope or expectation to be considered for promotion earlier than their seniors what had not passed that test if and when the selections were held for promotion to the post of Accountant during the continuance of the unamended regulation. However, that stage of consideration for selection never reached, irrespective of the fact whether there were vacancies available in the cadre of Accountants to be filled or not. The appellants do not belong to the category who had already been selected for promotion under the unamended regulation, and were merely awaiting the orders for promotion on the basis of the selection already made. That stage not having reached in the present case, the appellants had, at best, a mere hope or expectation of getting the benefit of the unamended regulation which hope was belied as a result of the amendment of the regulation prior to the stage when the appellants could be considered for promotion as Accountants during the period of application of the unamended regulation. It is well settled that a mere hope or expectation to get the benefit of a provision is not a right accrued which could be saved under the unamended regulation so as to enure to the benefit of the appellants even after its amendment in the above manner. It is well settled that a mere hope or expectation to get the benefit of a provision is not a right accrued which could be saved under the unamended regulation so as to enure to the benefit of the appellants even after its amendment in the above manner. ( 14 ) AGAIN in the case of SHANKARSAN DASH v. UNION OF INDIA, AIR1991 SC 1612 , [1991 (62 )FLR981 ], JT1991 (2 )SC 380 , 1991 Lablc1460 , (1992 )II llj18 SC , 1991 (1 ) SCALE848 , (1991 )3 SCC47 , [1991 ]2 SCR567 , 1991 (2 )UJ212 (SC ), (1991 )2 UPLBEC933 the constitution Bench has observed as under: it is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons. And if the vacancies or any of them are filled up, the state is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. Again in the case of UNION OF INDIA v. N. P. DHAMANIA ETC. , AIR1995 SC 568 , 1994 (4 )SCALE629 , 1995 Supp (1 )SCC1 , [1994 ]supp4 SCR628 , (1995 )1 uplbec288 it was held that the recommendation of the DPC are advisory in nature. Such recommendations are not binding on the appointing authority. It is open to the appointing authority to differ from the recommendations in public interest. Notwithstanding the fact that it is open to Appointments Committee of Cabinet which alone is the appointing authority and not the Minister concerned to differ from the recommendations of the DPC it must give 'reasons for so differing to ward off any attack of arbitrariness. Those reasons will have to be recorded in the file. Notwithstanding the fact that it is open to Appointments Committee of Cabinet which alone is the appointing authority and not the Minister concerned to differ from the recommendations of the DPC it must give 'reasons for so differing to ward off any attack of arbitrariness. Those reasons will have to be recorded in the file. Said reasons need not be communicated to the officer concerned. ( 15 ) SIMILAR is the view expressed by the Supreme Court in the case of JATINDER KUMAR and ors. v. STATE OF PUNJAB and Ors. , AIR1984 SC 1850 , [1984 (49 )FLR412 ], 1984 (2 ) SCALE513 , (1985 )1 SCC122 , 1984 (2 )SLJ477 (SC ), 1985 (17 )UJ73 (SC ) where it was held that provisions of Article 320 are only directory and a person cannot claim as of right that the Government must accept the recommendation of the Commission. ( 16 ) IN the light of the said judgment the law on the point is fairly well settled. A mere hope or expectation to get the benefit of a promotion is not a right accrued. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post unless the relevant rules so indicate. The State is under no legal duty to fill up all or any of the vacancies. It is well settled that after issue of a notification calling for applications, after going through selection process, the State cannot act arbitrarily, in as much as not to fill up the vacancies. The decision to fill up or not to fill up vacancy has to be taken bonafide for appropriate reasons. If a Committee is constituted to make recommendation regarding these appointments recommendations made by such Committees are not binding on the appointing authority. If the appointing authority is not acting on the recommendations it must give reasons for so differing and such reasons should be reduced into writing. ( 17 ) PROMOTION is a normal incidence of service. As declared by the Constitution Bench of the supreme Court it is a fundamental right. It is the right to be considered under Article 16 (1) of the constitution and such a right cannot be so lightly deprived to an employee who is otherwise eligible for promotion. ( 17 ) PROMOTION is a normal incidence of service. As declared by the Constitution Bench of the supreme Court it is a fundamental right. It is the right to be considered under Article 16 (1) of the constitution and such a right cannot be so lightly deprived to an employee who is otherwise eligible for promotion. When a vacancy exists and when the said vacancy has to be filled up it is not open to the management to contend that though a vacancy exists, it is left to its discretion to fill up or not to fill up the vacancy and thus deprive an eligible employee who has the requisite qualification to be considered for such promotion. ( 18 ) IN the back ground of these legal position in the instant case the petitioner is working as computer for more than 19 years. The next higher post to that of a Computer is Technical supervisor. Petitioner possessed all the qualification prescribed for the post of Technical supervisor. The person who was occupying the said post also got it by way of promotion. After the said person was promoted to the next higher post a vacancy arose. The Press Advisory committee in its meeting has recommended that the second respondent who was holding the post of Technical Supervisor has to be promoted to next higher cadre of Assistant Director. On such promotion when a vacancy arose for the post of Technical Supervisor the petitioner who was working as Computer has to be promoted. The said recommendation of the Committee may not be binding on the University which is the appointing authority. But from the said recommendation two things emerge. (1) The recommendation to promote as Deputy Director the second respondent is accepted by the University, which resulted in a vacancy in the post of technical Supervisor. (2) To fill up the said vacancy, petitioner's case was considered and as he was found fit a recommendation was made to that effect. This recommendation is contained in annexure-B which is dated 17. 2. 92. The rules which govern the said post as on 17. 2. 92 is the recruitment Rules for the Industrial Staff of Karnataka University Press 1975. It does not specifically provide how the said post is to be filled up. This recommendation is contained in annexure-B which is dated 17. 2. 92. The rules which govern the said post as on 17. 2. 92 is the recruitment Rules for the Industrial Staff of Karnataka University Press 1975. It does not specifically provide how the said post is to be filled up. Having regard to the past practice and the petitioner having been found to possess the requisite qualification to occupy the said post his case was recommended for promotion. If his case had been considered by the University as on that date and on the basis of the Committee's report the petitioner would have been eligible to be appointed to the said post as there existed a vacancy, petitioner possessed requisite qualification and the rules did not prohibit promotion to the said post coupled with the fact that the said post was filled up by promotion. Trouble appears to have arisen after grant of promotion to the second respondent. It is he who wrote letter as per Annexure -B3 to the Registrar of Karnataka university stating that the recommendation made by the Committee to fill up the post of technical Supervisor be deleted. It is in that context the University issued the advertisement on 17. 1. 94 calling for applications to fill up the post of Technical Supervisor and reserve the same for SC candidate. But one thing is clear. On 17. 1. 94 the University did intend filling up this post by inviting applications. Therefore there existed necessity to fill up the said post as on 17. 1. 94. ( 19 ) THE petitioner challenged the said advertisement on the ground that only one post exists and there cannot be a reservation for SC and ST. He also contended before this Court in the aforesaid writ Petition that his request for considering his case and his objection to the advertisement has not been considered. Therefore, the Writ Petition filed by him was allowed directing the respondents to consider the representation. The said order was passed on 30. 8. 1994. After passing of the order, according to the University Special Recruitment Statute came into force from 16. 1. 96. For the first time the said Statute provided for recruitment to the post of Technical supervisor by direct recruitment. The said order was passed on 30. 8. 1994. After passing of the order, according to the University Special Recruitment Statute came into force from 16. 1. 96. For the first time the said Statute provided for recruitment to the post of Technical supervisor by direct recruitment. It is after the commencement of the said Statute the request of the petitioner to consider his case for promotion was considered by the University and in view of the provisions contained in the Statute his request was rejected on the ground that the said post has to be filled up by direct recruitment and not by promotion. Therefore it is clear that it is the statute 1996 which came in the way of the petitioner being promoted to the post of Technical supervisor. But the fact remains that the petitioner completed 19 years of service as Computer, did possess requisite qualification to hold the post of Technical Supervisor, vacancy arose, his case was considered by the Press Advisory Committee, recommended his case for promotion and in fact the University wanted to fill up the said post as is clear from the advertisement issued, therefore, it cannot be said that it was a mere chance of considering his case for promotion. A right had accrued to him for promotion and the said right had to be considered in the manner known to law. The said right of the petitioner is a fundamental right. Therefore the authorities cannot deny the said right of the petitioner on the ground that it is only a mere chance of being promoted and they have a right to fill up the vacancy or not and they cannot be compelled to consider the case of the petitioner for being promoted. ( 20 ) POINT No. 2 : It is not in dispute that the rules prior to the Statute 1996 did not provide for the mode in which this post of Technical Supervisor has to be filled up. In the past it had been filled up by promotion. Even when advertisement was issued in 1994 an attempt was made to fill up the said post through an applicant belonging to SC. In the past it had been filled up by promotion. Even when advertisement was issued in 1994 an attempt was made to fill up the said post through an applicant belonging to SC. The request of the petitioner is rejected on the ground that the Statute of 1996 expressly provides for filling up the said post by way of direct recruitment and therefore the petitioner is not entitled to the said post byway of promotion. The Statute of 1996 came into force from 16. 1. 96. If a vacancy arose subsequent to that date and the right of the petitioner also arose subsequent to the said date and if the said vacancy has to be filled up subsequent to that date then certainly the provisions of the Statute 1996 governs the case. There is no provision in the Statute 1996 which expressly provides for retrospective operation of the said Statute. Therefore it has to be only prospective. If that is so, the Supreme court in the case of Y. V. RANGAIAH and Ors. v. J. SREENIVASA RAO and Ors. , AIR1983 SC 852 , (1983 )II LLJ23 SC , 1983 (1 )SCALE296 , (1983 )3 scc284 has held that the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules. The Supreme Court in the case of NT. BEVIN KATTI v. KARNATAKA PUBLIC service COMMISSION and Ors. , AIR1990 SC 1233 , JT1991 (5 )SC 282a , (1990 )II LLJ456 SC , 1990 (1 )SCALE659 , (1990 )3 SCC157 , [1990 ]2 SCR239 , 1990 (1 )UJ670 (SC ), (1990 )3 UPLBEC1955 has held as under: there is also another aspect of the question. Whether advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement. Unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions setout in the advertisement as his right crystallizes on the date of publication of advertisement, however, he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. To avoid confusion, it may be made clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the dependency of selection unless the amended rules are retrospective in nature. In the case of P. MAHENDRAN and Ors. v. STATE OF KARNATAKA and Ors. , AIR1990 SC 405 , [1990 (60 )FLR103 ], (1990 )1 SCC411 , [1989 ]supp2 SCR385 it has been held as under: it is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 in the instant case does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule seeking the change in the eligibility criteria for selection and appointment to the post of motor vehicles Inspectors was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment, moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter. ( 21 ) THEREFORE it is clear from the aforesaid enunciation of law by the Supreme Court, the law to be applicable in a case of direct recruitment. To be made in pursuance of notification issued, it is the rules which was prevailing on the date of notification. If rules are amended subsequently it is open to the legislature to expressly provide for a provision making it retrospective. If such express provision is not made making the intention of the legislature very clear then the said rules will be only prospective. ( 22 ) IN the instant case the vacancy arose somewhere in 1993 and even before the vacancy the press Advisory Board in anticipation of the vacancy recommended the case of the petitioner on 17. 10. 92. On 17. 1. 94 advertisement was issued to fill the said vacancy. Therefore the law which should govern the case for the purpose of promotion to the said post is the law which was prevailing either in 1992 or 1993 or 1994. 10. 92. On 17. 1. 94 advertisement was issued to fill the said vacancy. Therefore the law which should govern the case for the purpose of promotion to the said post is the law which was prevailing either in 1992 or 1993 or 1994. If that is applied the vacancy exists, the petitioner has eligibility criteria, necessary experience and as he being the only person who is eligible to be promoted his case ought to have been considered on the basis of the rules existing therein. Statute 1996 came into force on 16. 1. 96 which does not provide for retrospective operation. Therefore it is only prospective. It came into effect from 16. 1. 96. Merely because the respondents have not filled up the post till 16. 1. 96 and the case of the petitioner was considered thereafter it is not open to them to apply the rules prevailing as on 16. 1. 96 and reject the case of the petitioner on the ground that the said post has to be filled up by direct recruitment and not by promotion. The authorities were bound to apply rules which was prevailing on the date the vacancy arose or on the date the case of the petitioner was considered or on the date the advertisement was issued for filling up the said post. In that view of the matter the impugned order passed rejecting the request of the petitioner holding that the Statute 1996 do not provide for promotion is illegal and is liable to be quashed. In the result I pass the following order. Writ Petition is allowed. The impugned order is set aside. Respondents arc directed to consider the case of the petitioner for promotion to the post of technical Supervisor in the light of the rules which was in force prior to the Statute 1996 came into force. This exercise shall be done within a period of four months from the date of receipt of the order.