Judgment :- S. Siri Jagan, J. O.P.No.9079/2003 is filed by the Union of India and its officers challenging the interim order passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.67/2003 which is stated to be still pending. W.P.(C).No.10450/2005 is filed by one of the private party respondents in O.A.No.72/2003 against the final order passed in the said O.A. by the Central Administrative Tribunal. The subject matter of the two O.As. are identical and our decision in W.P.(C).No.10450/2005 would have to be taken notice of by the Tribunal while disposing of O.A.No.67/2003, finally, if not already disposed of. Therefore, these two writ petitions are being disposed of by a common judgment as agreed to by the parties. 2. The respondents 6 to 8 in W.P.(C).No.10450/2005 are the applicants in the original application. The substantial prayers as appearing in the original application are follows: - “(i) To declare that the applicants are entitled to be promoted to the cadre of UDC.S in the vacancies existing prior to re-structuring on the basis of the existing A-1 Recruitment rules immediately. (ii) To direct the respondents to convene the DPC for promotion to the post of UDC.S existing prior to the re-structuring I.E. the vacancies covered by Annexure A-7 and the 43 resultant vacancies arose on the basis of the promotion ordered as per order No.228/2002 on 18.12.2002 to the cadre of inspector, immediately.” We shall briefly advert to the facts necessary for disposal of the writ petition. We shall refer to the rank of parties as it appears in the order of the Tribunal and exhibits as it appears in the original application. 3. The applicants in the original application are Lower Division Clerks in the office of the Customs & Central Excise Department of the Union of India at its offices at Thrichur and Palghat. At the time of filing the original application, they had put in more than 8 years to 15 years in the cadre of L.D.C. by virtue of which they could have aspired for promotion to the post of Upper Division Clerks for which there were vacancies. It is not disputed before us that they have the requisite qualification for such promotion, although it is not clear as to whether they are senior enough to come within the zone of consideration, ascertainment of which fact is not necessary for the disposal of this writ petition. 4. It is not disputed before us that they have the requisite qualification for such promotion, although it is not clear as to whether they are senior enough to come within the zone of consideration, ascertainment of which fact is not necessary for the disposal of this writ petition. 4. While they were so awaiting promotion, the Government of India issued Annexure A2 order dated 19.7.2001, by which all concerned Heads of Department of Customs & Central Excise were informed that the Government has approved a restructuring of various posts in the Department which resulted in the change in the number and designation of various posts in different levels in the Department. The result of such restructuring which directly affects the issue involved in these cases is as under. 5. As per Annexure A, the existing cadres of Assistant, Tax Assistant, UDC (Special Pay) and Data Entry Operator Grade B were to be merged into a new cadre of “Senior Tax Assistant” and the existing cadres of UDC, Date Entry Operator Grade A and LDC were to be merged into a new cadre of “Tax Assistant”. Although Annexure A2 order was issued on 19.7.2001, new recruitment rules for the restructured posts were not framed replacing the existing recruitment rules. However, no promotions as per the existing recruitment rules were also made. It is under the above circumstances, the petitioners approached the Tribunal with the above original application seeking the above said reliefs. 6. The official respondents filed a reply statement before the Tribunal. From the reply statement it appears that the contention of the Department was that the posts in the restructured cadres of Tax Assistant and Senior Tax Assistant were sanctioned by Annexure R1 dated 5.6.2002 and from that date onwards the pre-structured cadres o LDC, UDC, DEO Gr.A, Assistant, UDC (Special Pay), DEO Grades B & C, ceased to exist and therefore promotions to the pre-structured cadre UDC were not effected from 5.6.2002. Of course, private party respondents 5 and 6, who it seems, would be adversely affected by a favorable order in the original application, have also filed a common counter affidavit contending, inter alia, that at least from 19.7.2001, i.e. the date of approval of restructuring, no promotion could be made as per the existing recruitment rules and therefore the original application should be dismissed. 7. 7. The Tribunal disposed of the original application, along with O.A.No.98/2003 (the applicants in which are arrayed as respondents 9 to 17 in this writ petition) by a common judgment, with the following orders: “(i) Vacancy position as on 3.1.2002 (date of issue of A-4 communication of the Government of India, Ministry of Finance) in the cadre of UDCs be assessed. (ii) For filling up of the above said vacancies, a DPC be constituted to consider eligible LDCs as per the zone of consideration. If the applicants would fall within the zone of consideration, they shall also be considered. (iii) Those found suitable be promoted notionally to the rank of UDCs from 25.11.2002 (date of issue of A-5 communication of the Government of India, Ministry of Finance). (iv) Those notionally promoted be assigned seniority in the cadre of Tax Assistants as UDCs merged into the Grade with all consequential benefits. (v) No arrears would be payable. (vi) The above direction shall be complied with in full and resultant orders issued within a period of four months from the date of receipt of copy of this order”. This order is under challenge in the W.P.(C).No.10450/2005 at the instance of the 5th respondent in the original application, who it appears, would be adversely affected by the implementation of the orders. 8. We have heard Sri. T.C. Govinda Swamy, learned counsel for the petitioner, Sri. Elvin Peter, learned counsel for the party respondents as also Sri. John Varghese, learned Assistant Solicitor General appearing for the Union of India and its officers. 9. Sri. T.C. Govinda Swamy reiterated the grounds in the writ petition and strenuously argued that since the restructuring came into effect on 19.7.2001, the posts of UDC (which alone is relevant for our purpose in this original petition) ceased to exist from that date and therefore no promotions could be made to that post from its feeder category of LDC after 19.7.2001. 10. Sri. 10. Sri. Elvin peter, relying on, among other decisions, the Supreme Court decisions of Y.V. Rangaiah and others v. J. Srinivasa Rao and others reported in AIR 1983 SC 853, and P. Ganeswar Rao & others v. State of A.P. reported in AIR 1988 S.C. 2069, as also the copy of the decision of the High Court of Andhra Pradesh in W.P.No.7963 of 2004 produced by him as Ext.R6(c) along with the counter affidavit filed by the 6th respondent in this writ petition supported the impugned order advancing the argument that in so far the Government had not framed the recruitment rules for the restructured posts, the posts existing prior to Annexure A2 approval of restructuring continued to exists even thereafter and appointments by promotions to those posts should be made in accordance with the pre-existing recruitment rules to all vacancies which has arisen till the date of coming into force of the recruitment rules applicable to the restructured posts. 11. The Assistant Solicitor General argued in tune with the reply statement filed by the Union of India in the original application. 12. We have considered the arguments of the learned counsel in depth carefully. 13. The only question to be decided is as to whether the Tribunal was right in directing assessment of vacancy position in the cadre of UDC’s as on 3.1.2002 and directing filling up of those vacancies by promoting eligible LDCs found suitable to those posts notionally from 25.11.2002. 14. It is not disputed that restructuring was approved as per Annexure A2 order dated 19.7.2001 and that recruitment rules to the restructured posts of Tax Assistant and Senior Tax Assistant were framed subsequent to 25.11.2002. By Annexure A3 order dated 10.9.2001, the Government of India, inter alia, decided as follows: - “2. It is felt that if the D.P.C.‘s for Group ‘B’ and ‘C’ are conducted by the cadre authorities, it may lead to widening of imbalances in promotion prospects or create imbalances. The Board have therefore, decided that the holding of D.P.C. of Group ‘B’ & ‘C’ posts may be frozen and no D.P.C. may be held for group ‘B’ & ‘C’ posts till distribution of posts under various level is completed and instructions are issued by the Board in this regard.” The posts under consideration in this writ petition, namely the posts of UDC and LDC are group ‘B’ & ‘C’ posts. 15. 15. However, pursuant to representations against the ban on promotions as per Annexure A3 dated 10.9.2001, the Government of India issued Annexure A4 order dated 3.1.2002 ordering as under: - “2. The matter has been considered by the Board and it has been decided that wherever the DPC have already been held, the panel prepared by the DPCs may be given effect and the resultant vacancies in the feeder cadre may also be filled up. Where the DPCs have not been held, the DPCs may be held on the basis of the pre-revised strength i.e., the strength existing before the care restructuring and the resultant vacancies may be filled up.” 16. By annexure A5 order dated 14.11.2002, the Government passed another order as under: “2. In view of the above, you are requested to issue the promotion orders in respect of remaining Group ‘B’, ‘C’ & ‘D’ [posts as stated below:- (i) promotion orders in respect of Sepoy, Havildar, Head Havildar, Tax Assistant, Senior Tax Assistant and Inspector of Central Excise/Preventive Office/Examiner of Customs may be issued on the basis of Recruitment Rules after allotment of GSR No. by the Government of India Press, wherever not yet allotted. (ii) DPCs in respects of Appraisers and Administrative Officers may be held on the basis of existing Recruitment Rules and promotion orders may be issued by 25.11.2002; (iii) DPCs in respect of remaining grades except DOS L-11 may be held on the basis of existing Recruitment Rules and promotion orders may be issued by 25.11.2002; and (iv) Promotion in the grade of DOS L-II may be made only after the new recruitment rules are circulated by the Ministry” 17. As is evident from the relief portion of the order of the Tribunal the dates 3.1.2002 and 25.11.2002 are the date of Annexure A4 and the date mentioned in para 2 (iii) of Annexure A5 respectively. 18. Three paragraphs, namely paragraphs 4 to 6, from the reply statement of Union of India in the original application is relevant in this context, which we shall extract below: “4. It is submitted that the Central Board of Excise & Customs vide F.No.A. 11013/4/2002-Ad.IV dated 05-06-2002, issued orders in respect of allocation of staff to various zones, Commissionerate, Directorate Generals and Directors. An extract of the same is produced herewith and is marked as Annexure R1. It is submitted that the Central Board of Excise & Customs vide F.No.A. 11013/4/2002-Ad.IV dated 05-06-2002, issued orders in respect of allocation of staff to various zones, Commissionerate, Directorate Generals and Directors. An extract of the same is produced herewith and is marked as Annexure R1. As per the terms of Annexure R1, the sanctioned strength of cadres indicated therein superceded all previous sanctions. Accordingly as per Annexure R1, from 05-06-2002, post in the restructured cadres of TA and Senior TA were sanctioned and from that date onwards, the pre-structured cadres of LDC, UDC, DEO Gr. ‘A’ Assistant, UDC (Special Pay), DEO Grades ‘B’ & ‘C’ ceased to exist. 5. It is submitted that the applicants are seeking promotions to the cadre of UDC that had ceased to exist on 05.06.2002. The advantage expected by the Applicants at the time of filing this O.A. was that by virtue of a promotion to the cadre of UDC, they would be placed senior to the Data Entry operators in the restructured carder of Tax Assistants. 6. It is submitted that when the orders allocating posts in the restructured cadres were issued, fairness demanded that none among the merged cadres should steal a march over the other by getting a promotion to a cadree that has ceased to exist. Hence promotions to the restructured cadre of UDC were not effected from 05.06.2002.” (emphasis supplied) 19. Unfortunately, we have not been favored with a copy of Annexure R1, since it does not form part of the reply statement of the official respondent annexed to the writ petition. All the same, the extracts of the reply statement quoted above read with Annexures 4 and 5 of the original application abundantly make it clear that the relief granted by the Tribunal in the original application was less than what would have been admissible to the applicants in the original application, going by the admissions based on Annexure R1, in paragraphs 4 to 6 of the reply statement of the Government in the original application since going by the same all vacancies which occurred prior to 05.06.2002 could be filled up in accordance with the recruitment rules applicable to the post of UDC, prior to restructuring. Nobody had chosen to challenge the validity of Annexures 4 and 5, and Annexure R1. Nobody had chosen to challenge the validity of Annexures 4 and 5, and Annexure R1. In this connection, it may also be noted that pursuant to order dated 19.3.2003 in O.P.No.9079/2003 directing the counsel appearing for the Government to ascertain whether the Government to ascertain whether the Government had at any time decided to keep vacancies in abeyance and not to fill them up pending restructuring of the cadre/s, the senior Central Government Standing counsel had filed CMP No. 18130/2003 producing Ext.P3 communication dated 3.2.2003 which shows that the Board had decided that no promotions/regularizations may be made to the pre-restructuring cadres of UDC and TA till further orders which would also show that prior to 3.2.2003 there was no such decision. 20. These would be more than sufficient to dismiss the writ petitioner and to uphold the order of the Tribunal. However, since arguments were advanced on the legal position on that point also adverting to decisions of the Supreme Court, we shall briefly deal with the same also. 21. In Rangiah’s case (supra) there were certain vacancies in the post of Sub Registrar’s Grade II as on 1.9.1976 which were to be filled up from among Lower Division Clerks in the Department of Registration and Stamps, Andhra Pradesh. Those were not filled up. Later by an amendment dated 22.1.1977, the recruitment rules were amended. The question that arose was whether the vacancies existed prior to 22.3.1977 were to have been filled up as per the rules existing prior to the amendment or after the amendment. After considering the question the Supreme Court at Para 9 of the judgment held as follows:- “9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the statewide basis and therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the post which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.” 22. In P. Ganeshawar Rao’s case (supra) the Supreme Court approved the decision in Y.V. Rangaiah’s case (supra). 23. The decision of the Andhra Pradesh High Court produced as Ext.R6 (c) by the 6th respondent in the writ petition also dealt with identical issue arising from the very same order of restructuring dated 19.7.2001 referred to as Annexure A2 in the original application in this writ petition. In the same a Division Bench of the Andhra Pradesh High Court, inter alia, framed the following issue:- “Whether the post which were available prior to the date of Recruitment Rules coming into force should be filled up under the Recruitment Rules, 1979, or revised Recruitment Rules, 2002?” Answering this question, in paragraph 20 of the judgment, the Court held as follows:- “20. The next issue that calls for consideration is whether the vacancies which were available prior to the restructure cadre came into force should be filled up by the pre-existing rules or revised recruitment rules. We need not labour on this aspect. Since we held that the Recruitment Rules are only prospective in nature and cannot be said to have come into force with effect from 19.7.1997 (sic 19.7.2001), the principle laid down in Y.V. Rangiah vs. J. Srinivasa Rao (AIR 1983 SC 852) and reiterated in judgments reported in P. Ganashwara Rao Vs. State of A.P. (AIR 1988 SC 2068) , P. Mulugeshan vs. State of Tamil nadu (1993 (2) SCC 340) , P. Mahendran Vs. State of A.P. (AIR 1988 SC 2068) , P. Mulugeshan vs. State of Tamil nadu (1993 (2) SCC 340) , P. Mahendran Vs. State of Karnataka (AIR 1990 SC 405), N.T. Devan Kati vs. Karnataka Pubic Services Commission (AIR 1990 SC 1233) and the State of Rajasthan v. R. Dayal (1997 (10) SCC 419) will govern the situation. Under those circumstances, it had to be necessarily held that the vacancies which arose prior to revised Recruitment Rules came into force have to be filled up by the then existing rules and not the amended rules.” The decision of a Division Bench of this Court in W.A.No.1422 of 1992 produced as Ext. R6 (b) by the 6th respondent along with his counter affidavit in this writ petition also supports the said position of law. 24. In answer to these decisions the learned counsel for the petitioner relies on the decisions of Dr. K. Ramaula and another v. Dr. S. Surayaprakash Rao and others, reported in 1997 SCC (L&S) 625, Rajasthan Public Service Commission v. Channan Ram & another, AIR 1998 SC 2251, B.N. Sinha v. Union of India, AIR 1998 SC 2600, S. Prakash and another v. K.M. Kurian & others, 1999 SCC (L&S) 997, G. Venkeateshwarsa Rao, Appellant v. Union of India and others, AIR 2000 SC 219, Delhi Judicial Service Assn. & others vs. Delhi High Court and others. 25. Out of these, in Ramulu’s Case (supra). The Andhra Pradesh Government on 22.11.1988 took a decision to amend recruitment rules for promotion to various categories in the Animal Husbandry & Fisheries Department. However, the amended rules came into force only on 12.6.1996. The question that arose was whether the vacancies which arose prior to 12.6.1996 should be filled up in accordance with the amended rules or the unamended rules. The court held in paragraph 15 of the decision as follows:- “15. Thus we hold that the first respondent has not acquired any vested right for being considered for promotion in accordance with the repealed rules, in view of the policy decision taken by the Government which we find is justifiable on the material available from the record placed before us. Thus we hold that the first respondent has not acquired any vested right for being considered for promotion in accordance with the repealed rules, in view of the policy decision taken by the Government which we find is justifiable on the material available from the record placed before us. We hold that the Tribunal was not right and correct in directing the Government to prepare and operate the panel for promotion to the post of Assistant Directors of Animal Husbandry Department in accordance with the repealed rules and to operate the same.” 26. While holding as above, the Supreme Court specifically considered the law laid down in Y.V. Rangaiah’s case (supra) and affirmed the said decision as also the other decisions followed in Ext.R6(c) and held that the proposition of law laid down therein cannot be applied to the case at hand for the reason appearing in paragraph 12 of the decision which runs as follows:- “12. xxxx xxx xxxx xxx xxxxxxxxx As a proposition of law there is no dispute and cannot be disputed. But the question is whether the ratio in Rangaiah’s case would apply to the facts of this case. The Government therein merely amended the rules without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date the new Rules came into force. It is true as contended by Mr. H.S. Gururaja Rao, that this court this court has followed the ratio therein in many a decision and those cited by him are Ganeshwar Rao v. State of A.P., P. Mahendran v. State of Karnataka, A.A. Calton v. Director or Education, N.T. Devin Katti v. Karnataka Public Service Commission, Ramesh Kumar Chyoudha v. state of M.P. In none of these decisions a situation which has arisen in the present case had come up for consideration. xxxxxxxxxxxxxxxxxxxxx” Thus, in fact this decision supports the case of the applicants in the original application. Further directly contrary to the situation in that case, in the present case as evidence by Annexures 4 and 5, there was a conscious decision to fill up the posts which arose at least upto 25.11.2002. In fact by Ext.R6(a) dated 23.10.2002 two Lower Division Clerks were actually promoted to the post of Upper Division Clerk. 27. Further directly contrary to the situation in that case, in the present case as evidence by Annexures 4 and 5, there was a conscious decision to fill up the posts which arose at least upto 25.11.2002. In fact by Ext.R6(a) dated 23.10.2002 two Lower Division Clerks were actually promoted to the post of Upper Division Clerk. 27. In Chanam Ram’s case, B.N. Sinha’s case and Venkateswara Rao’s case (supra) the court was dealing with rules applicable to direct recruitment, the ratio of which cannot be applied to the present case which deals with promotion only pending framing of new rules. In S. Prakash’s case, the court was dealing with the issue as to whether the amendment in Rule 5 of the General Rules under Part II of the Kerala State and Subordinate Service Rules will Prevail over the Special Rules in Part III thereof in the matter of computation of vacancies, which cannot be applied to the present case. In the Delhi Judicial Service Association’s case (supra), the court was concerned with ratio between promotees and direct recruits for appointment to the post of District and Session Judge in accordance with amended recruitment rules to vacancies which occurred prior to the coming into force of amended rules. There the Supreme Court itself had in an earlier judgment, on agreement between parties had evolved formula in which it was directed that the posts should be filled up both by promotion and by direct recruitment in accordance with the draft rules, in the event the said draft rules ultimately came into force. Therefore, that decision also cannot be applied to the facts of this case. 28. On the other hand, Annexure A7 dated 10.1.2003 produced in the original application would go to show that the office of the Commissioner of Central Excise and Customs, Cochin had sought clarification from the Central Board of Excise and customs as to whether 36 vacancies in the cadre of Upper Division Clerk, which had arisen prior to cadre restructuring can be filled up by promotion under the old recruitment rules as per the terms of the Supreme Court decision in P. Ganeshwar Rao’s case, immediately, prior to the notification of the new rules, since subsequent to the cadre restructuring, these cadres will be merged into the new cadre of Senior Tax Assistants. This letter would prove that there were at least 36 Vacancies of UDCs, that recruitment rules were not framed as on 10.1.2003 and that the department was aware of the decision in P. Ganeshwar Rao’s case which goes a long way in proving the factual as situations for applying the ratio of the said case. Therefore, we respectfully agree with the legal position expounded in Exts.R6(b) and R6 (c) decisions of this court and that of the Andhra Pradesh High Court respectively. 29. The result of the above discussion is that the legal position as decided by the Supreme Court also is in favour of the case of the applicants in the original application as approved by the Tribunal and therefore the impugned order of the Tribunal cannot be faulted on legal grounds also. In the result W.P.(C).No.10450/2005 is dismissed, but without any order as to costs. Regarding O.P.No.9079/2003, now that O.A.No.67/2003, the interim order in which is under challenge in the same, has to be necessarily allowed in terms of the above judgment in W.P.(C). No.10450/2005, the same is closed with a direction to the Tribunal to take up the said original application and dispose of the same expeditiously, if not already disposed of.