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2010 DIGILAW 2485 (ALL)

ASHOK KUMAR DUBEY v. STATE OF U. P.

2010-08-16

K.N.PANDEY, SUNIL AMBWANI

body2010
JUDGMENT By the Court.—Heard Shri P.S. Baghel, Senior Advocate assisted by Shri P.K. Upadhyay and Shri Gautam Baghel for the petitioners. Shri Satish Chaturvedi, Additional Advocate General assisted by Shri M.C. Chaturvedi, Chief Standing Counsel and Shri S.N. Srivastava appear for the State respondents. 2. All the petitioners are serving as Sub Inspectors in Civil Police in Uttar Pradesh. By this writ petition, they have prayed for directions to declare the Rule 5 (2) of the U.P. Sub Inspector and Inspector (Civil Police) (First Amendment) Service Rules, 2009 as ultra vires, unconstitutional and illegal, to direct the petitioners to submit their forms for promotions on the post of Inspector (Civil Police), and to allow them to appear provisionally in the written examination. 3. All the petitioners are graduates. They were directly recruited as Sub Inspectors in Civil Police in the year 2001 after preliminary examination, physical test, mains examination and interviews. They have undergone one year’s training at Police Training College, Moradabad and Sitapur and have completed their probation. It is alleged that they became eligible for promotion after completing five years of service on the first day of the year of recruitment in terms of Rule 5 (2) of the U.P. Sub Inspector and Inspector (Civil Police) Service Rules, 2008 (in short, the Rules of 2008). By the first amendment to the Rules notified on 2.4.2009, Rule 5 (2) was amended providing for excluding the period of probation in calculating five years of completed service on the first day of the year of recruitment. It is stated that in the recruitment year beginning from first day of the recruitment year i.e.. 1.7.2008 the petitioners were eligible for consideration for promotion to 1114 vacant posts of Inspectors in the year 2008. These vacancies have occurred from 1.7.2008 to June, 2009. The exclusion of the period of probation by the first amendment to Rule 5 (2) notified on 2.4.2009, is illegal, arbitrary and ultra vires. Shri P.S. Baghel submits that the said amendment is also beyond the power of the State Government. The exclusion of probationary period in counting the number of years of service for eligibility, is unreasonable and unjustified and has been made only to deprive the petitioners from consideration for promotion. 4. It is submitted that the period of probation is to watch the performance of the officer. The exclusion of probationary period in counting the number of years of service for eligibility, is unreasonable and unjustified and has been made only to deprive the petitioners from consideration for promotion. 4. It is submitted that the period of probation is to watch the performance of the officer. Once an officer successfully completes the probation period, the experience gains by him during the probation period cannot be excluded from his service. Under Rule 20 (1) of the Rules of 2008, a person on substantive appointment in service can be placed on probation for two years. In none of the cases of the petitioners, the probation period was extended. By the second amendment to the Rules notified on 19.1.2010 the eligibility for promotion was amended and provided to be 7 years instead of 5 years, and by the third amendment to the Rules notified on 5.4.2010, the orders of the Government issued from time to time with regard to matters connected with or incidental to selection, promotion, training, appointment, determination of seniority and confirmation etc. of Sub Inspector and Inspector of Civil Police in U.P. Police Force, stood rescinded and revoked ab-initio. 5. The petitioners have not challenged the Second and Third amendment to Service Rules of 2008 notified on 19.1.2010 and 5.4.2010 respectively. The challenge is confined only to the first amendment in the Rules notified on 2.4.2009, by which the period of probation was excluded depriving consideration of petitioner’s candidature for 1114 vacancies of Inspector in the year 2008. 5. The petitioners have not challenged the Second and Third amendment to Service Rules of 2008 notified on 19.1.2010 and 5.4.2010 respectively. The challenge is confined only to the first amendment in the Rules notified on 2.4.2009, by which the period of probation was excluded depriving consideration of petitioner’s candidature for 1114 vacancies of Inspector in the year 2008. It is contended that if the second amendment is held to be ultra vires and unconstitutional in view of the settled law of the Supreme Court, in Y.V. Rangaiah and others v. J. Sreenivasa Rao and others, (1983) 3 SCC 284 ; P. Ganeshwar Rao and others v. State of Andhra Pradesh and others, 1988 (Supp) SCC 740; P. Mahendra v. State of Karnataka, 1989 (4) JT 459 followed in N.T. Devin Katti and others v. Karnataka Public Service Commission and others, AIR 1990 SC 1233 , in which it was held that the old vacancies have to be filled up in accordance with the old Rule, namely the rules, which was prevalent at the time when the vacancies were notified, the petitioners were eligible to be considered for 1114 vacancies of the year 2008 to be filled up by selection, in which a written examination is to be held under the Rule. 6. Shri P.S. Baghel submits that out of total notified vacancies for which exercise of promotion has started on 31.10.2009, 98 vacancies of 2006 would fall in the recruitment year beginning from 1.7.2007; 81 vacancies of the year 2007, in the recruitment year beginning from 1.7.1008, and 1114 vacancies of the year 2008 in the recruitment year beginning from 1.7.2009. Prior to the enforcement of the Rules of 2008, the promotions were regulated by Government Order dated 5.11.1965 and Government Order dated 24.7.2003, by which the names of only those Sub Inspectors were called for consideration, who had completed ten years of service. All the petitioners appointed with similarly situate Sub Inspectors by direct recruitment in the year 2001 had become eligible under the Rules of 2008, to be considered for promotion and to appear in the examinations for selection. They were deprived of their right to be considered for promotion by the First amendment, to the Rules notified on 2.4.2009. The State has acted with malice, ‘in law’, by excluding the period of probation of two years and thus making all the petitioners ineligible for promotion. They were deprived of their right to be considered for promotion by the First amendment, to the Rules notified on 2.4.2009. The State has acted with malice, ‘in law’, by excluding the period of probation of two years and thus making all the petitioners ineligible for promotion. They could not compete for these vacancies in the recruitment year 2010, as by the second amendment to the Rule notified on 19.1.2010 the eligibility criteria has been changed by providing experience of seven years instead of five years. The petitioners, therefore, cannot be considered for promotion to the 1114 vacancies of the year 2008 unless the obstacle, created by the First amendment to the Rule notified on 2.4.2009 by which it excludes two years’ period from eligibility of five years, is struck down. 7. Shri P.S. Baghel has relied upon the judgements in Union of India v. Tusar Ranjan Mohanti and others, (1994) 5 SCC 450 , in which it was held that the rules can be made under Article 309 with retrospective effect but the power to make such rules cannot be used to nullify a right vested in a person under a valid Statute or the Constitution. He has also relied upon judgement in R.S. Garg v. State of U.P. and others, (2006) 6 SCC 430 , in which the Supreme Court explained the distinction between ‘malice in law’, and ‘malice in fact’, and held that promotion after relaxing the rules in favour of an individual with undue haste presumes mala fides more so when other candidates senior to him and fulfilling the same criteria, and where no seniority list was prepared, were excluded. The entire approach was aimed for achieving private interest and not public interest. In R.S. Garg’s case (supra) the State Government relaxed the rule by making amendments in U.P. Labour Department (Factories and Boilers Division) Officers Service Rules, 1980 for regularizing services of respondent No. 3 appointed in 1995 as against Shri R.S. Garg appointed in 1978 and promoted him by making special avenues for promotion of Scheduled Caste candidate. The Supreme Court held that the State cannot make rules or issue executive instructions by way of regularization of services. It would be in violation of the rules made under Article 309 of the Constitution of India and opposed to the equality clauses in the constitutional scheme under Articles 14 and 16. The Supreme Court held that the State cannot make rules or issue executive instructions by way of regularization of services. It would be in violation of the rules made under Article 309 of the Constitution of India and opposed to the equality clauses in the constitutional scheme under Articles 14 and 16. The appointment of respondent No. 3 on ad hoc basis did not serve the requirement of the rule. He was not holding any temporary or officiating post. The regularization was directed to be made only to defeat the claim of the appellant Shri R.S. Garg. It was held that the malice in its legal sense means malice such as may be assumed for a wrongful act done intentionally, but without just cause or excuse or for one of reasonable or probable cause. Even in the absence of any malice in fact, the principle of malice in law can be invoked. 8. Shri Satish Chaturvedi, learned Additional Advocate General states that earlier the promotion/selection to the post of Inspector (Civil Police) was made in accordance with the provisions contained in Government Order dated 5.11.1965 providing for promotion by interviews taken by Departmental Selection Committee from amongst those, who were eligible after examining their service records. The marks were allotted as per fixed norms on the basis of which a merit list was prepared considering the number of vacancies and the incumbents finding place in the merit list were given promotion as officiating Inspector. The selections held in the year 1997, in accordance with the Government Order dated 5.11.1965 were challenged. The Writ Petition No. 20716/1997 filed by Smt. Shakuntala Shukla was allowed with directions to follow the procedure prescribed in U.P. Government Servants Promotions Rule, 1994 made under Article 309 of the Constitution of India. A Special Appeal No. 191/1998 was dismissed by the Division Bench of the Court. The Supreme Court, however, set aside the judgments of the Special Appeal as well as learned Single judge holding that the provisions of UP Government Servants Promotions Rules, 1994 do not apply in police department. In Chandra Prakash Tiwari v. Shakuntala Shukla and others, the power of the State Government to make rules under Section 2 of the U.P. Police Act, 1861 was upheld. In Chandra Prakash Tiwari v. Shakuntala Shukla and others, the power of the State Government to make rules under Section 2 of the U.P. Police Act, 1861 was upheld. The Government Order dated 24.7.2003 was thereafter issued under Section 2 of the UP Police Act 1861, for promotions from the post of Sub Inspector to the post of Inspector by the Departmental Selection Committee on the basis of merit in which four times the number of candidates than the existing vacancies were called for interviews and preparation of merit list on the basis of interview and service records. The promotions to the post of Inspector in the year 2005 was made in accordance with the Government order dated 24.7.2003. The State Government after taking into account the experience gained in the selections in the years 1997 and 2005 and to serve principle of objectivity, transparency, equality and impartiality issued notification on 2.12.2008 notifying U.P. Sub Inspector and Inspector (Civil Police) Service Rules, 2008 under Section 2 read with Section 46 (2) of the UP Police Act 1861, superseding all existing rules and Government orders. Rule 5 (2) provided for eligibility for promotion of Sub Inspectors to Inspectors. The Rule is quoted as below : “5.(2) Inspector by promotion through the Board on the basis of departmental examination from amongst substantively appointed Sub Inspectors who have completed five years service as such on the first day of the year of recruitment. Note: The post of Sub Inspector (Teacher) shall be filled by transfer from amongst substantively appointed Sub Inspectors who have undergone course in Pedagogy, as prescribed by the Government from time to time.” 9. The year of recruitment under Rule 3 (n) is defined under the Rules to mean a period of 12 months commencing on the first day of July of the calender year. 10. The Rules were subsequently amended by UP Sub Inspectors and Inspector (Civil Police) (First Amendment) Service Rules, 2009 notified on 2.4.2009 providing for excluding the period of two years on probation. The amended rule is quoted as follow : “5.2 By promotion through the Board on the basis of departmental examination from amongst substantively appointed Sub-Inspectors who have completed five years excluding the probation period of service as such on the first day of the year of recruitment. The amended rule is quoted as follow : “5.2 By promotion through the Board on the basis of departmental examination from amongst substantively appointed Sub-Inspectors who have completed five years excluding the probation period of service as such on the first day of the year of recruitment. The post of Sub-Inspector (Teacher) shall be filled by transfer from amongst substantively appointed Sub Inspectors who have undergone a course in Pedagogy, as prescribed by the Government from time to time.” 11. Shri Satish Chaturvedi submits that the period of probation was rightly excluded from computing the eligibility of the candidate for consideration for promotion. So far as the probation period is concerned, the same is liable to be considered for all other purposes in service but not the purpose of computing tenure, while considering the eligibility of a candidate for promotion. This clause applied to all the similarly situated persons and thus there cannot be any arbitrariness in its application. He would submit that there is no illegality in the amended rules. The rules are intra vires and do not violate the fundamental rights of the petitioners. In case the petitioners fulfil the minimum eligibility criteria, they are free to apply for promotion for the vacancies for which they become eligible. Shri Chaturvedi submits that the First amendment to the Rules of 2008 was notified on 2.4.2009, and the Second amendment was notified on 19.1.2010. Though earlier notification in respect of the First amendment was to be effective from the date of publication in the gazette, the provisions of the First amendment were made effective from retrospective effect w.e.f. 2.12.2008, by the Third amendment to the Rules notified on 5.4.2010. Shri Chaturvedi has relied upon judgments of the Supreme Court in State of M.P. and others v. Raghuveer Singh Yadav and others, (1994) 6 SCC 151 , in submitting that the alteration of eligibility qualification for appointment by making amendments and withdrawing the earlier notification to proceed afresh with recruitment is valid exercise of rule making power. No candidate acquires any vested right of promotion against the State. The Court distinguished the judgement in P. Mahendran v. State of Karnataka, (1990) 1 SCC 411 , in which the prescription of additional qualification after the recruitment was notified was held to be bad in law. He has also relied upon V.K. Sood v. Secretary, Civil Aviation, AIR 1993 SC 2285 ; Col. The Court distinguished the judgement in P. Mahendran v. State of Karnataka, (1990) 1 SCC 411 , in which the prescription of additional qualification after the recruitment was notified was held to be bad in law. He has also relied upon V.K. Sood v. Secretary, Civil Aviation, AIR 1993 SC 2285 ; Col. A.S. Sangwan v. Union of India, AIR 1981 SC 1545 and Union of India v. Pushpa Rani, JT 2008 (8) SC 474 (para 29); Dilip Kumar Garg v. State of U.P., JT 2009 (3) SC 2002. 12. In Union of India v. Pushpa Rani (supra) in paragraph 29 the Supreme Court held : “29. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.” 13. In State of M.P. and others v. Raghuveer Singh Yadav and others, (1994) 6 SCC 151 , the advertisement was issued on 27.7.1987 calling for applications from eligible candidates with qualification prescribed, degree in Arts, Commerce or Science or Engineering or Diploma in Engineering. The written examinations were held and results were declared and interview cards were issued. In State of M.P. and others v. Raghuveer Singh Yadav and others, (1994) 6 SCC 151 , the advertisement was issued on 27.7.1987 calling for applications from eligible candidates with qualification prescribed, degree in Arts, Commerce or Science or Engineering or Diploma in Engineering. The written examinations were held and results were declared and interview cards were issued. The Government in the meantime amended the Rules in consultation with the Government of India and the Public Service Commission and altered the eligibility qualification for appointment to those posts by presenting degree in Science with Physics as a subject or Degree in Engineering or Technology or Diploma in Engineering. The change in the qualifications during the pendency of the selections was challenged. The Supreme Court held that the State has got power to prescribe qualifications for recruitment. Pursuant to amended Rules the Government withdrew the earlier notification and wanted to proceed with the recruitment afresh. It was not a case of any accrued right. The candidates, who had passed examination had got legitimate expectation to be considered of their claims according tot he Rules then in vogue. The amended Rules had only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. The Supreme Court distinguished the eligibility in P. Mahendran v. State of Karnataka, on the ground that in that case the additional qualifications were prescribed. It was held that the additional qualifications prescribed had no retrospective effect. 14. In Dilip Kumar Garg and another v. State of U.P. and others (Supra) the Supreme Court held relying upon Pushpa Rani’s case and Official Liquidator v. Dayanand and others, JT 2008 (11) SC 467, that Article14 should not be stretched too far, other wise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the additional qualifications and the Court must respect this and should not interfere readily with administrative decisions. 15. In the present case prior to the enforcement of the Rules of 2008 w.e.f. 2.12.2008 under Government Orders the selections for promotion to the post of Inspector were made under Government Order dated 5.11.1965 and 24.7.2003 providing for 10 years service as eligibility for promotion. In order to improve the efficiency and to promote young persons, the period of eligibility in the Rules of 2008 was reduced to 5 years. In order to improve the efficiency and to promote young persons, the period of eligibility in the Rules of 2008 was reduced to 5 years. The recruitment, however, was not started as the names were not called before the First amendment to the Rules was notified on 2.4.2009 providing for excluding period of probation in counting 5 years on the first day of the year of recruitment. The petitioners did not have a right to be considered for the vacancies in the recruitment year beginning from 1.7.2007 and 1.7.2008. They claimed to be eligible for 1114 vacancies of the year 2008 in the recruitment year beginning from 1.7.2009, but since the process of recruitment had not started, no right had accrued to them. The petitioners only had a right to be considered for promotion. In the meanwhile the Service Rules were amended by the First Amendment notified on 2.4.2009 excluding period of probation (2 years) and thereafter by third amendment period of eligibility was clarified to be of 7 years. The Second Amendment to the Rules notified on 19.1.2010 clarified the intention of the State Government to provide for 7 years service on the first day of the year of recruitment as eligibility of the substantively appointed Sub-Inspectors to be considered for the post of Inspectors. The corrigendum dated 5.4.2010 simply amended the first column of Rule 5 (2) of the Second Amendment, which was erroneously published. The first column merely described the original rule, the rule as it stood amended by the First Amendment to the Rules on 2.4.2009. By the Third amendment the Rules were made retrospective to operate with effect from the date, when the Rules were notified on 2.12.2008. In order to raise any doubts the third amendment rescinded all Government Orders and instructions issued from time to time prior to the enforcement of the Rules of 2008 and declared them to be revoked ab-initio. The eligibility criteria in Rule 5 after the Second Amendment to the Rules on 19th January, 2010 read with corrigendum dated 5th April, 2010 now reads as follows : “By promotion through the Board on the basis of departmental examination, from amongst substantively appointed Sub Inspectors, who have completed 7 years’ service as such on the first day of the year of recruitment.” 16. It is obvious that the State Government by changing the eligibility criteria from 10 years to 7 years and providing for departmental examination wanted to infuse young and competent persons as Inspector of Civil Police. The amendment clarified the legislative intention. The recruitment started with calling for the names of the eligible persons for promotion. The amendment made in between before the recruitment started cannot confer any right on the petitioners, to claim promotion on the basis of the Rules as they were operating, when they became eligible, for consideration for promotion. 17. The petitioners have not correctly appreciated the ratio of the judgments in A.A. Calton v. Director of Education, MANU/SC/0047/1983; S.N. Nagarajan and others v. State of Mysore and others, MANU/SC/0043/1966; In Y.V. Rangaiah v. J. Sreenivasa Rao, MANU/SC/0354/1983; P. Ganeshwar Rao and others v. State of Andhra Pradesh and others, MANU/SC/0357/1988; and P. Mahendra and others v. State of Karnataka and others, (1989) 4 JT 459 . All these judgments relate to the facts in which the process of recruitment or promotion had started by issuing advertisement. In para 11 of the N.T. Devin Katti v. Karnataka Public Service Commission and others, MANU/SC/0240/1990 : AIR 1990 SC 1233 , it was held that where 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 further indicates the extent of reservations, selection of candidates in such as case must be made in accordance with the then existing rules and Government Orders. The candidates, who apply, and undergo written or viva voice test acquire vested right for being considered for selections in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. The right of the candidates crystallises on the date of publication of advertisement. However, in all these judgments there is a caveat that a candidate does not get absolute right in such case for promotion or selection. 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. The legislative intent is ascertained either by express provision or by necessary implication. 18. 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. The legislative intent is ascertained either by express provision or by necessary implication. 18. In a recent decision in High Court of Delhi and another v. A.K. Mahajan and others, (2009) 12 SCC 62 , the Supreme Court again considered the question as to whether a mere chance of promotion can be a ground to challenge the amendment to the Rules and whether the recruitment rules amended retrospectively during the pendency of the selection are applicable to the selection on vacancies arising prior to the amendment. The Supreme Court held : “22. This Court has time and again held that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of employer. That right of consideration may accrue at a particular point of time or subsequently thereto. Merely because at a particular point of time the employee is not considered, does not mean the total denial of the consideration of the employee. 37. Last but not the least, there was no mandamus issued by this Court in the aforementioned judgment. Completely erroneous observation has been made that a mandamus was issued by this Court and that the same could not be nullified by resorting to the Rule-making power by respondent Nos. 1 and 2 (therein) since there was no change in the circumstances. A further observation is also incorrect that the amendment could only be made when there is a change in circumstances. The need for the amendment could even be felt because of the change of the policy. If the High Court came to the conclusion that there was any need for amendment on the factual situation, the amendment could always be made. 38. In the present case, the amendment was necessitated on account of the statistics of promotions to the three categories, where the Private Secretaries had almost monopolized the same. Therefore, there was nothing wrong with the amendments. This Court in S.B. Mathur case (S.B. Mathur v. Chief Justice of Delhi High Court, 1989 Supp (1) SCC 34) had also not given any mandamus that the promotions would only be in the light of the existing Rules and in no other. Therefore, there was nothing wrong with the amendments. This Court in S.B. Mathur case (S.B. Mathur v. Chief Justice of Delhi High Court, 1989 Supp (1) SCC 34) had also not given any mandamus that the promotions would only be in the light of the existing Rules and in no other. The Court had simply approved of the Rules, as they then stood, providing for the equal status of the three categories and the combined seniority list for them. This did not mean that this Court directed that there could be no change in the modality or that there could be no three separate seniority lists from the three categories. In our opinion, the judgment is completely misunderstood by the High Court. 39. Further, if this was the situation found by the High Court that the Rule could not be changed by amendment, the High Court could have and should have found fault with the whole amendment, not only the retrospectivity aspect thereof. But that has not happened. The High Court has not invalidated the amendments, creating three seniority lists for the three categories and introducing the principle of rotational promotion. It has only found fault with the retrospectivity. 40. We have already pointed out that the retrospective effect given to the amendments was after consideration of material statistics. Further, the date fixed was also relevant, as it was immediately after the last promotion was effected. We, therefore, find no fault with the retrospective aspect and in our opinion, the High Court has wrongly found fault with the retrospective aspect on the incorrect logic that the amendments affected any absolute vested or accrued rights of being considered. There is no such absolute accrued or vested right of consideration, which could not be affected by the retrospective amendments. The only condition is that such retrospective amendments should be constitutionally valid. 41. In the decision in N.T. Devin Katti and and others v. Karnataka Public Service Commission and others, 1990 (3) SCC 157 , the Court was considering the right of the candidates to be considered. The question in that case was that as to which Rules were applicable, particularly, when there were amendments in the Rules after the advertisement was issued. In the decision in N.T. Devin Katti and and others v. Karnataka Public Service Commission and others, 1990 (3) SCC 157 , the Court was considering the right of the candidates to be considered. The question in that case was that as to which Rules were applicable, particularly, when there were amendments in the Rules after the advertisement was issued. The Court clearly held that under such circumstances, normally the existing Rules on the date of advertisement would be applicable, however, if there is an amendment in the Rule with retrospective effect, then it would be the amended Rules, which would be applicable. The Court observed that it was on the date of the advertisement that the right of the candidate crystallizes. However, the Court observed that he had no absolute right in the matter. 42. The Court further observed : “11............ 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.” The Court also observed that : “11............a candidate, on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of 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 pendency of selection unless the amended Rules are retrospective in nature.” (Emphasis supplied). 43. This judgment was relied upon further in case of Marripati Nagaraja and others v. Government of Andhra Pradesh and others, 2007(11) SCC 522 . This Court observed : 2007 AIR SCW 6861 “16. The State, in exercise of its power conferred upon it under the proviso to Article 309 of the Constitution is entitled to make Rules with retrospective effect and retroactive operation. Ordinarily, in the absence of any Rule and that too a rule which was expressly given a retrospective effect, the rules prevailing as on the date of the notification are to be applied. But, if some Rule has been given a retrospective effect which is within the domain of the State, unless the same is set aside as being unconstitutional, the consequences flowing therefrom shall ensue. But, if some Rule has been given a retrospective effect which is within the domain of the State, unless the same is set aside as being unconstitutional, the consequences flowing therefrom shall ensue. In such an event, the applicable rule would not be the Rule which was existing, but the one which had been validly brought on the statute book from an anterior date ...............” 44. In Virender Singh Hooda and others v. State of Haryana and another, 2004 (12) SCC 588 , in paragraph 45, this Court recognized the power and competence of the Legislature to make a valid law and make it retrospectively, so as to bind even past transactions. In paras 67 and 68, the Court explained the aspect of retrospectivity and came to the conclusion that there was nothing wrong if the Legislature had removed the basis of the decision of this Court by repealing the circulars. It further observed that : “67............. the candidates have the right to the posts that are advertised and not the ones which arise later for which a separate advertisement is issued. A valid law, retrospective or prospective, enacted by the legislature cannot be declared ultra vires on the ground that it would nullify the benefit which otherwise would have been available as a result of applicability and interpretation placed by a superior Court.” The decision in the case of Chairman, Railway Board (cited supra) was specifically considered in para 70 of the judgment. The Court reiterated the observation made in that case that a Rule, which seeks to reverse from an anterior date a benefit which has been granted or availed of e.g. promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively. We have already pointed out that it is only to this extent that the retrospectivity can be challenged. However, for that there has to be a tangible benefit awarded like promotion or pay-scale or a rate of pension. Such is not the state of affairs in the present case. The Court also made reference to the decision in State of J. and K. v. Triloki Nath Khosa, 1974 (1) SCC 19 , wherein it was held that impugned Rules did not recall a promotion already made or reduce a pay-scale already granted. 45. Such is not the state of affairs in the present case. The Court also made reference to the decision in State of J. and K. v. Triloki Nath Khosa, 1974 (1) SCC 19 , wherein it was held that impugned Rules did not recall a promotion already made or reduce a pay-scale already granted. 45. In short, law regarding the retrospectivity or retroactive operation regarding the Rules of selection is that where such amended Rules affect the benefit already given, then alone such Rules would not be permissible to the extent of retrospectivity.” (emphasis supplies) 19. In the present case the recruitment by inviting names for consideration was started on 31.10.2009. By that date the First, and Second amendment to the Rules of 2008, were notified with a clear legislative intention that the Sub Inspectors appointed substantively, who have completed 7 years of service on the first day of year of recruitment will be considered for promotion. The petitioners by virtue of being eligible on the notification of the first amendment to the Rules on 2.4.2009 had not acquired any vested right to be considered for promotion on 1114 vacancies of the year upto 1.7.2009. 20. In the present case the legislative intention is absolutely clear. Any doubts, which may have arisen, whether to exclude the period of probation have been further made clear by making First and Second Amendment retrospective by the Third Amendment to the Rules notified on 5.4.2010. Infact the third amendment to the Rules notified on 5.4.2010, was made only to clarify the intention that all previous Rules, Government Orders and administrative instructions are rescinded, revoked ab-initio, and are withdrawn. 21. The petitioners did not acquire or mature any right to be considered for promotion on the 1114 vacancies of the recruitment year upto 1.7.2009. They have been substantively appointed but did not complete 7 years of service for being considered for these vacancies and did not acquire any vested right for consideration. 22. The writ petition is dismissed. ————