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Madhya Pradesh High Court · body

2010 DIGILAW 66 (MP)

ASHOK KUMAR SHUKLA v. STATE OF M. P.

2010-01-18

RAJENDRA MENON

body2010
Judgment Rajendra Menon, J. ( 1. ) As common questions involved in these three petitions are with regard to promotion from the post of Dy. Commissioner to the post of Additional Commissioner (Commercial Tax), on the basis of a meeting of the Departmental Promotion Committee, held on 19.5.2006, all these petitions were heard analogously and are being decided by this common order. ( 2. ) For the sake of convenience, documents available in the records of Writ Petition No.14737/2008(S) and certain documents-available in the records of Writ Petition No.4011/2007(S) are being referred to. Apart from this, the original file with regard to creation of post and certain decision taken by the Government in the matter of the said promotion process is also considered. ( 3. ) All the persons interested in the lis, namely the petitioners and the private respondent Dr. Ramulu and Another Vs. Dr. S. Suryaprakash Rao and others, 1997 3 SCC 59 , are holding the post of Dy. Commissioner in the Commercial Tax Department. Even though their dates of appointment are different, but the question involved in these petitions pertains to their claim for promotion on the post of Assistant Commissioner, Commercial Tax Department. In that view of the matter and further in view of the fact that there is no dispute with regard to the service particulars of the employees involved in this petition, the particulars are not being separately referred to. ( 4. ) The terms and conditions of employment in the Department are governed by the Rules framed under Article 309 of the Constitution of India and the relevant rules are the Madhya Pradesh Sales Tax Class I and II Service Recruitment Rules, 1966 (hereinafter referred to as the Recruitment Rules) and, the Madhya Pradesh Public Services (Promotion) Rules, 2002 (hereinafter referred to as the Promotion Rules). It is not in dispute that promotion from the post of Dy. Commissioner to Additional Commissioner is based on the criteria of merit- cum- seniority and the method of determining the zone of consideration is contemplated in the Promotion Rules. It is also an admitted position that all the persons namely, the petitioners and the private respondents, fulfil all the criteria laid down in the Recruitment Rules, i.e.. the eligible criteria. However, the only dispute is with regard to the zone of consideration. ( 5. It is also an admitted position that all the persons namely, the petitioners and the private respondents, fulfil all the criteria laid down in the Recruitment Rules, i.e.. the eligible criteria. However, the only dispute is with regard to the zone of consideration. ( 5. ) Procedure for determining the basis for promotion, the procedure to be followed for determining the zone of consideration, the procedure to be followed for reservations to the post are all contained in the Promotion Rules and for the purposes of the present case, Rule 7 contemplates the provision on the basis of which the promotion is to be made. ( 6. ) Sub-rule (1) of Rule 7, of the Promotion Rules, contemplates that when promotions are to be made on the basis of merit -cum- seniority, the zone of consideration has to be determined in accordance to the table appended in sub- rule (1). According to the sub-rule, if the number of vacancy to be filled up in the year is one, then the number of persons to be considered for promotion is five. Similarly, if there are two vacancies in an year, the number of persons to be considered are eight; likewise in case of their being four vacancies the number cf persons to be considered are twelve; and, in case of their being six vacancies the number of persons to be considered is sixteen. ( 7. ) Sub-rule (3) of Rule 7 contemplates that name of only such public servants shall be considered for promotion, who have completed the requisite number of years of service in the feeder cadre as per the Recruitment Rules and who fall within the zone of consideration. That apart, this rule provides for creating of a waiting list and it contemplates that in the select list prepared after the promotion exercise, names of two public servants or 25% of the number of public servants, included in the select list, which ever is more shall be included to fill up unforeseen vacancies occurring during the course of the aforesaid period. ( 8. ) Thereafter, sub-rule (4), which is very crucial for decision in this writ petition, reads as under: "(4) The number of vacancies for promotion during the course of the year i.e.. ( 8. ) Thereafter, sub-rule (4), which is very crucial for decision in this writ petition, reads as under: "(4) The number of vacancies for promotion during the course of the year i.e.. from 1st January to 31st December shall be worked out after taking into account the existing and anticipated vacancies on account of retirement and promotions to higher cadres/part of service/higher pay scale of posts. Vacancies arising out of deputation for periods exceeding one year shall also be taken into consideration. The number of vacancies to be reserved for public servants belonging to Scheduled Castes and Scheduled Tribes shall be worked out on the basis of the roster which is required to be maintained in accordance with the provisions of Rule 9 of these rules." (Emphasis supplied) ( 9. ) In pursuance to the aforesaid Recruitment Rules and Promotion Rules, four vacancies were determined in the year 2006 as existing in the cadre of Additional Commissioner. Out of the four vacancies, two were in the unreserved general category; one was reserved for scheduled caste candidate; and, one for scheduled tribe candidate. In accordance to the provisions of sub-rule (1) of Rule 5 of the Promotion Rules, for the four vacancies, the number of candidates who came within the zone of consideration was determined as 12. Accordingly, the DPC was convened on 19.5.2006 and the case of the 12 person as per the seniority list was taken into consideration. The proceedings of the DPC held on 19.5.2006 is filed as Annexure P/2.The DPC considered the casa of 12 persons as per seniority and in paragraph 13 of the proceedings, gave its recommendations for promotion. Shri G.S. Baghel and Shri A. K. Naik were recommended for promotion in the unreserved general category; and, Shri N.L. Padwar was recommended in the scheduled caste category. A waiting list was also prepared in which Shri S.L. Verma and Smt. Santosh Maheshwari,petitioners in Writ Petition No.14737/ 2008(S), were empanelled at Serial Nos.1 and 2. Shri G.S. Baghel and Shri A. K. Naik were recommended for promotion in the unreserved general category; and, Shri N.L. Padwar was recommended in the scheduled caste category. A waiting list was also prepared in which Shri S.L. Verma and Smt. Santosh Maheshwari,petitioners in Writ Petition No.14737/ 2008(S), were empanelled at Serial Nos.1 and 2. Immediately after the recommendations were made by the aforesaid DPC,rather even before the recommendations were made, it is seen that Shri Ashok Kumar Shukla,petitioner in Writ Petition No.4011/2007(S), and certain Employees Union were objecting to the holding of the DPC on 19.5.2006, and they had sought for postponement of the DPCs meeting mainly on two grounds: the first ground was that as the confidential reports for the entire period i.e. the preceding five years, are not available, the DPC be held after the confidential report for the entire period are made available. It was further pointed out that due to introduction of the new Value Added Tax System, which is being enforced in the State of Madhya Pradesh with effect from 1.4.2006, two additional posts of Additional Commissioner and 12 additional posts of Dy. Commissioner are being created and as the process of creating these two additional posts are under way, the DPC be held after the two posts are created so that other eligible candidates may also come within the zone of consideration. ( 10. ) Shri Ashok Kumar Shukla, petitioner in Writ Petition No.4011/2007(S), submitted that in such case he would also come within the zone of consideration. However, as the request made by Shri Ashok Kumar Shukla and the Employees Union were not considered and the DPC considered the case and submitted its report,Shri Shukla filed Writ PetitionNo.4011/2007(S), challenging the proceedings of the DPC,sought for its cancellation and holding of a review DPC. When this petition was pending, it seems that orders were passed vide Annexures P/12,P/13 and P/14, available in the records of Writ Petition No.4011/2007(S), promoting Shri G.S. Baghel,Shri A.K. Naik,Shri N.L. Padwar,Shri S.L. Verma and others as Additional Commissioners. Accordingly,Shri Ashok Kumar Shukla amended his writ petition and challenged the promotion of respondents 3 to 7, in his petition on the post of Additional Commissioner. ( 11. Accordingly,Shri Ashok Kumar Shukla amended his writ petition and challenged the promotion of respondents 3 to 7, in his petition on the post of Additional Commissioner. ( 11. ) While the said writ petition was pending and the question was sub judice,State Government issued an order on 11.4.2008- Annexure P/13,in Writ Petition No.l4737/2008(S) and by this order informed the Secretary, Public Service Commission,Indore that as two additional posts have been created, a review DPC of the original DPC held on 19.5.2006 be conducted and after taking note of the total six existing vacancies, persons coming within the zone of consideration be included in the list for consideration and the review DPC held. Challenging this order-dated 11.4.08, Writ Petition No.l4737/2008(S) is filed by petitioners Shravanlal Verma and Smt. Santosh Maheshwari,who are kept in waiting list Nos.1 and 2, as per the recommendations of the DPC held on 19.5.06, and they claim promotion on the two additionally created posts by virtue of inclusion of their name m the waiting list. ( 12. ) Petitioner Ramesh Chandra Paliwal, in Writ Petition No 14742/2008, had filed the petition also challenging the same order-dated 11.4 08 and sought for proceeding in the matter in accordance to the recommendations of the DPC held on 19,5,2006. ( 13. ) Accordingly, the three petitions have beers filed claiming the respective reliefs, as indicated hereinabove, ( 14. ) Even though in Writ Petition No.4011/2007(S) i.e.,, in the case of Shri Ashok Kumar Shukla,State Government has filed an application for dismissing the said writ petition, as having been rendered infructuous due to prayer of Shri Shukla being allowed, as a review DPC is being ordered, but as Shri Ashok Kumar Shukla is respondent in Writ Petition Nos14737/08(S) and 14742/08(S), and as petitioners in these two cases are challenging the order passed by the State Government on 11,4.08, instead of dismissing Writ Petition No.4011/07(S), as having been rendered infructuous,it is thought appropriate to decide it alongwith the other two petitions as the decision in these two petitions would also have some bearing on the prayer made by Shri Ashok Kumar Shukla,in the event of the prayer made by petitioners in Writ Petition Nos.14737/08(S) and 14742/08(S), being allowed. ( 15. ( 15. ) Shri K.K. Trivedi,learned counsel representing petitioners in Writ Petition Nos.l4737/08(S) and 14742/08(S), referred to sub-rule (3) and sub-rule (4) of Rule 7, of the Promotion Rules and argued that as the DPC held on 19.5.06 is strictly in accordance to the Promotion Rules, the action of the State Government in directing for a review DPC is unsustainable. Referring to sub-rule (4) of Rule 7,Shri K.K. Trivedi emphasized that this Rule provides for taking into account the vacancies that were existing in the course of the year, when the promotion is to be made i.e.. from 1st January to 31st December, so also the anticipated vacancies that may arise on account of retirement of employees, promotion to higher cadre or post and vacancies arising out of deputation for period exceeding one year, in the year. Shri Trivedi emphasized that when the DPCs meeting was held on 19.5.06, the existing vacancies were only four and as the two vacancies that were created after 19.5.06 do not fall in the category of anticipated vacancies, as contemplated under sub rule (4), there is no question for holding a review DPC or postponing the DPC that was to meet on 19,5.06. Referring to the aforesaid rule, Shri Trivedi emphasized that the anticipated vacancies referred to in the Rule should arise out of retirement or promotion to the higher post or due to deputation of some employees. The Rule does not contemplate consideration of vacancies that may arise on any other account as anticipated vacancies and, therefore, the two additional posts created after the DPC met on 19.5.06 due to introduction of the VAT system in the State of MP will not come within the purview of anticipated vacancies, as contemplated under sub-rule (4) and under such circumstances decision of the State Government in treating the two vacancies that were created to be anticipated vacancies and consequently ordering for a review DPC is contrary to the requirement of the Rule. It was further emphasized by him that under sub-rule (3) waiting list is prepared for filling up unforeseen vacancies and the two vacancies that arose after the DPC met on 19.5,06 would fall within the category of unforeseen vacancy and the same would rightly go to the persons, who are in the waiting list i.e... petitioners Shravanlal Verma and Smt. Santosh Maheshwari,in Writ Petition No 14737/08(S). petitioners Shravanlal Verma and Smt. Santosh Maheshwari,in Writ Petition No 14737/08(S). Accordingly, applying strict interpretation to the Rules, Shri K.K. Trivedi,learned counsel appearing for the petitioners, supported the DPC, which was held on 19.5.06, argued that the said DPC was rightly held and the decision of the State Government to hold a review DPC is contrary to the Statutory Rules and, therefore, unsustainable. On the aforesaid ground,Shri K.K. Trivedi argued that the Rule having been strictly followed in the matter of conducting the DPC,the State Government committed error in allowing the representation of Shri Ashok Kumar Shukla,which was not warranted. Accordingly, on the aforesaid grounds, he seeks for interference. ( 16. ) Shri Samdarshi Tiwari,learned Government Advocate, submitted that after the DPCs meeting was held on 19.5.06 and when Shri Ashok Kumar Shukla and certain Employees Union had raised objections, the matter was referred to the General Administration Department of the State Government and on examination of the entire matter, based on the factual scenario, it transpired that due to the proposed enforcement of the VAT system, which was to come into force in the State from 1.4.06, the Commissioner, Commercial Tax Department on 28.2.2006 submitted a note-sheet Bearing No.697/2006/1, and submitted a report pointing out that as the new system of tax i.e... VAT system is to be enforced from 1.4.06, certain additional posts are required to be sanctioned to meet the requirements of the changed system. It was pointed out that Commissioner by his proposal dated 28.2.06 had requested for various posts in the cadre of Additional Commissioner, Dy. Commissioner, Assistant Commissioner, Commercial Tax Officer, Assistant Commercial Tax Officer and Commercial Tax Inspector. The proposal of the Commissioner was received by the Principal Secretary to the Department of Commercial Tax on 1.3.06 and after working out the entire requirement on 21.4.06, it was decided that due to introduction of the new system, two additional posts of Additional Commissioner and 12 posts of Dy. Commissioner be sanctioned and, therefore, on 21.4.06, the matter was proposed to be referred to the Finance Department for its concurrence. The Finance Department after concurrence of its Minister gave approval on 22.5.06 and finally the State Government approved creation of the additional posts on 20.6.06. Accordingly,Shri Samdarshi Tiwari argues that when the DPCs meeting was held on 19.5.06, even prior to that it was anticipated that two additional posts would be created. The Finance Department after concurrence of its Minister gave approval on 22.5.06 and finally the State Government approved creation of the additional posts on 20.6.06. Accordingly,Shri Samdarshi Tiwari argues that when the DPCs meeting was held on 19.5.06, even prior to that it was anticipated that two additional posts would be created. That apart, as confidential report of most of the Dy. Commissioners were not available, Minister concerned in the Department, proposed for postponement of the DPC to be held on 19.5.06, so that DPC may be held after the CR folders of all the incumbents to be considered, are received. It is pointed out by Shri Samdarshi Tiwari that,two meetings of the DPC were proposed. One was for considering the case of Dy. Commissioners for promotion to the post of Additional Commissioners and the other was for promotion to the post of Dy. Commissioners. In the case of promotion to the post of Dy. Commissioners also the same position was existing, therefore,the DPC to be held for promotion on the post of Dy. Commissioners were postponed and the DPC was held only on 29.12.06, after including the 12 newly created posts. However, in the case of promotion to the post of Additional Commissioner, the DPC was not postponed, it was held and when the matter was re-examined by the GAD, it was opined that as the vacancies were already anticipated and were in the pipeline and as addition of two posts would enlarge the zone of consideration, entitling other eligible candidates to be considered, that apart as the CRs of all the eligible candidate were not available review DPC should be held and as the State Government accepted the recommendations of the GAD, which was found to be reasonable and fair, in the interest of all concerned, it is argued by him that the action of the Government does not warrant any interference. ( 17. ) Shri Manoj Sharma,learned counsel appearing for Shri Ashok Kumar Shukla,petitioner in Writ Petition No.4011/2007(S), submitted a two-fold submission: (i) His first argument was that strict interpretation theory as canvassed by Shri K.K. Trivedi is not correct. It was emphasized by him that the implication of the words anticipated vacancies used in sub-rule (4) of Rule 7, of the Promotion Rules, has to be liberally construed to mean all vacancies, which could arise in the course of the year i.e... It was emphasized by him that the implication of the words anticipated vacancies used in sub-rule (4) of Rule 7, of the Promotion Rules, has to be liberally construed to mean all vacancies, which could arise in the course of the year i.e... between 1st January to 31st December, when the promotion exercise was to be held. It was submitted by him that the exigency contemplated in the Rule i.e... on account of retirement, promotion to higher post and deputation are the situations due to which vacancies may arise, but the intention of the rule-maker in using the words anticipated vacancies should not be given a restricted meaning with relation to the eventualities contemplated in the Rules, but should be used in a broader sense to mean the vacancies, that may also arise during the year. It was argued by him that when the rule speaks about anticipated vacancies arising in the year, it would mean all anticipated vacancies that may arise in the course of the year for any cause, in addition to the eventualities contemplated in the Rule. He wanted this Court to interpret the Rule in such a manner that it is in furtherance to the intention of the rule-maker and not to give a restrictive meaning to the Rule. (ii) The second limb of submission made by Shri Manoj Sharma was to the effect that even if the interpretation canvassed by Shri K.K. Trivedi is accepted, in that case also if it is found that the departmental authorities proceeded with the DPC on 19.5.06, with an intention to give undue benefit to certain class of persons and by ignoring justifiable reasons present for postponement of the DPC,still proceeding with the matter in the manner done, it was not proper and the same would amount to an action, which can be termed as malafide,legal in nature, is unjustified and arbitrary and, therefore, should be interfered with. Taking me through some of the material available on record,Shri Manoj Sharma tried to emphasize that the haste and hurry shown by the department and its authorities for proceeding with the DPC on 19.5.06, and the manner in which they acted, should be taken note of and an inference drawn to hold that this action was wholly unjustified and arbitrary. Taking me through some of the material available on record,Shri Manoj Sharma tried to emphasize that the haste and hurry shown by the department and its authorities for proceeding with the DPC on 19.5.06, and the manner in which they acted, should be taken note of and an inference drawn to hold that this action was wholly unjustified and arbitrary. Shri Manoj Sharma submitted that when the proposal was made for holding the DPC on 19.5.06, apart from Shri Ashok Kumar Shukla,the Employees Union had also represented to the State Government and sought for postponement of the DPC. It is pointed out by him by referring to Annexure P/6, available in the records of Writ Petition No.4011/2007(S), that confidential reports of the previous five years were to be considered, the previous five years starts from 2001 and ends in the year 2005. The availability of confidential report as indicated in Annexure P/6 shows that confidential report of none of the employees for the year 2005 were available, confidential reports of the year 2004 were available in the case of one employee only. Considering this and taking note of the representation of the Employees Union and others, the Minister in the Department concerned had requested for postponement of the DPC to be held on 19.5.06, but the Additional Secretary in the Department by his note-sheet - Annexure P/8 on 18.5.06, reported that it is not necessary to postpone the DPC due to non-availability of confidential reports, the Rules provide for certain methods of consideration even on such eventualities, and the representation and other objections of the Union can be placed for consideration before the DPC. Accordingly, the DPC proceeded with the meeting, but in the meeting did not bother to take note of the objection and representation of the petitioner and Employees Union, which were proposed to be placed before the DPC,as indicated in Annexure P/8.Shri Manoj Sharma emphasized that inspite of indications made in the note-sheet - Annexure P/8,the objections and other material was not placed before the DPC for consideration. That apart,Shri Manoj Sharma points out that on the same consideration the DPCs meeting, in the case of promotion to the post of Dy. That apart,Shri Manoj Sharma points out that on the same consideration the DPCs meeting, in the case of promotion to the post of Dy. Commissioners, were postponed, but in the case of promotion to the post of Additional Commissioners, without any justification a different yardstick was adopted, which indicates the interest of some of the officers in proceeding with the DPC in an arbitrary manner. Apart from the aforesaid, referring to the proceedings of the DPC and the Members who participated in the DPC,Shri Manoj Sharma emphasized that the DPC consisted of three Members namely;Shri N.C. Nagraj,Chairman of the M. P. P. S. C;Shri J.P. Singhal,Principal Secretary in the Department of Commercial Tax; and,Shri P.K. Das, Commissioner, Commercial Tax,Indore. It was argued by him that when the DPC met on 19.5.06,Shri J.P. Singhal,the Principal Secretary, and Shri P.K. Das, Commissioner, were aware of the fact that due to introduction of the VAT system, two additional posts are being created and even before the date of the DPC i.e.. 19.5.06, a decision has been taken and the matter was pending before the Finance Ministry and it was likely to grant sanction very shortly and infact approval of the Finance Ministry was obtained on 22.5.06. Referring to the note-sheets processed from 28.2.06 onwards,Shri Manoj Sharma emphasized that it was Shri P.K. Das, the Commissioner, who had initiated the proposal for increase of the additional posts on 28.2.06 and it was approved by Shri J.P. Singhal on 1.3.06.Inspite of the fact that they were in know-how of the pendency of the matter with regard to creation of two additional posts, they proceeded with the DPC instead of adjourning it. It was argued by him that when in the case of Dy. Commissioners, the DPC could be adjourned on similar consideration, there was no reason for proceeding with the DPC only in the case of Additional Commissioners, when similar situation was prevailing in this case also. This according to Shri Manoj Sharma was an arbitrary and unjustified action on the part of the departmental authorities and, therefore, on this count alone the action of the State Government, based on the recommendations of the GAD to hold a review DPC, which is a just, fair and reasonable decision, the same does not warrant any interference. ( 18. ) In support of his contention,Shri Manoj Sharma placed reliance on the following judgments:Shyama Charan Dash Vs. ( 18. ) In support of his contention,Shri Manoj Sharma placed reliance on the following judgments:Shyama Charan Dash Vs. State of Orissa,2003 AIR SCW1424;Dwarka Prasad and others Vs. Union of India and others, 2003(6) SCC535; Director, Lift Irrigation Corporation Limited Vs. Pravatkiran Mohanty,1991(2) SCC295; and, Dr. Ramulu and Another Vs. Dr. S. Suryaprakash Rao and others, 1997(3) SCC59. It was emphasized by him by relying on the aforesaid judgment, particularly in the case of Shri S.C. Das (supra), to argue that mere inclusion of the name of certain persons in the select list does not confer on them any right to be promoted and as petitioners have a right, legally enforceable,atleast for the purpose of being considered for promotion, if this right, which is being enforced by the State Government, then, the same does not warrant any interference. Accordingly, he prays for rejection of the prayer made by Shri K.K. Trivedi. ( 19. ) Learned counsel appearing for the interveners are mainly those persons, who are adversely affected because of the stay granted by this Court and due to which DPCs not only for the year 2006 i.e... the Review DPC,but the subsequent DPCs for the year 2007-08 have not been held and even further promotion to the post of Dy. Commissioners are being held up. They have, therefore, filed applications for interventions mainly for vacation of the stay and direct for considering the respective DPCs. Some of the interveners are supporting the case of Shri Ashok Kumar Shukla and want the action of the State Government in holding the review DPC to be upheld. ( 20. ) Having heard learned counsel for the parties at length and on consideration of the facts and circumstances of the case, I am of the considered view that two moot questions arise for consideration in these writ petitions: (a) The first question would be as to whether the strict interpretation of the Rule, particularly sub-rule (4) of Rule 7, as canvassed by Shri K.K. Trivedi should be accepted or the liberal interpretation theory advanced by Shri Manoj Sharma should be followed. Consequently, this Court will have to consider as to whether the rule has to be interpreted in a manner so as to be in furtherance to the intention of the rule-maker, if so, as to what could be the said intention. Consequently, this Court will have to consider as to whether the rule has to be interpreted in a manner so as to be in furtherance to the intention of the rule-maker, if so, as to what could be the said intention. (b)The next question would be, irrespective of the answer to the first question, whether the action of the departmental authorities in proceeding with the DPC on 19.5.96 was an arbitrary and unjustified action and, therefore, the decision of the State Government based on the recommendations of the GAD is a just, fair and reasonable decision in furtherance to the interest of justice to all concerned. ( 21. ) As far as the first question is concerned, the Rules in question i.e... the Promotion Rules as indicated hereinabove has to be taken note of, and it is required to be evaluated as to what was the intention of the Legislature in using the words anticipated vacancies in sub-rule (4). A complete reading of the Rules would indicate that all existing and anticipated vacancies falling between the period from 1st January to 31st December, of a year, had to be worked out and taken into account for consideration in the promotion exercise as only one promotion exercise is conducted in a year. As far as working out existing vacancies are concerned, there is no dispute and the existing vacancies would be ones, which have already come into existence i.e.. four in the present case. The dispute is with regard to anticipated vacancies that could arise between the period 1st January to 31st December, 2006.Shri K.K. Trivedi wanted this Court to interpret anticipated vacancies to mean those which could arise during the period should arise on account of retirement, promotion to higher post or due to deputation of some employees. Vacancies arising due to any other reason is not permissible to be counted as anticipated vacancies, under the Rules. Accordingly, by referring to sub-rule (3),Shri K.K. Trivedi,learned counsel, wants this Court to hold that the vacancies two in number that arose after the DPC met on 19.5.06 are the unforeseen vacancy, which went to the petitioners in Writ Petition Nos.14737/ 08(S) and 14742/08(S). ( 22. ) At this juncture, it would be appropriate to take note of certain legal principles that are to be followed while interpreting statutory provisions. ( 22. ) At this juncture, it would be appropriate to take note of certain legal principles that are to be followed while interpreting statutory provisions. The basic principles with regard to interpretation of statutes and the principles for taking note of, the intention of the legislature, principle of considering a statute in a manner to make it more effective and workable and the principle of reading a statute in accordance to the language employed therein, has been discussed in detail by Honble Shri Justice G.P. Singh in his book - Principles of Statutory Interpretation, 11th Edition. The learned author in the said book, in Chapter pertaining to determining the intention of the Legislature, has referred to certain observations made by Justice Chinappa Reddy,in the case of Reserve Bank of India Vs. Pearless General Finance and Investment Co., 1987 (1) SCC424, certain principles canvassed by Justice Holmes and Honble Blackstone,and has dealt with the matter in the following manner: "In the words of Chinappa Reddy,J: Interpretation must depend on the text and context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it is enacted. The principle as stated by Mr. JUSTICE HOLMES is to the following effect: You construe a particular clause or expression by construing the whole instrument and any dominant purposes that it may express. In fact, intention is a residuary clause intended to gather up whatever other aids there may be to interpretation besides the particular words and the dictionary. The principle as stated by Mr. JUSTICE HOLMES is to the following effect: You construe a particular clause or expression by construing the whole instrument and any dominant purposes that it may express. In fact, intention is a residuary clause intended to gather up whatever other aids there may be to interpretation besides the particular words and the dictionary. According to BLACKSTONE the most fair and rational method for interpreting a statute is by exploring the intention of the Legislature through the most natural and probable signs which are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law." Thereafter, the learned author has explained the manner of exploring intention of the Legislature and the explanation to the same given by Lord Watson, who terms it as a slippery phrase, and it is so quoted by the author: " In a court of law or equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication. But the whole of what is enacted by reasonable and necessary implication can hardly be determined without keeping in mind the purpose or object of the statute. This formulation therefore does not in effect reject the concept of purpose but contains the same within the import of the phrase necessary implication." ( 23. ) After taking note of the judgment of the Supreme Court, in the case of Organo Chemical Industries Vs. Union of India, AIR 1979 SC1803, it has been observed by learned author that the Supreme Court has held that a bare mechanical interpretation of the words and application of a legislative intent devoid of concept of purpose will reduce most of the remedial and beneficial legislation to futility. Thereafter, certain observations made by Honble Justice K. Iyer. J, in the case of Chairman, Board of Mining Examination and Chief inspector of Mines Vs. Thereafter, certain observations made by Honble Justice K. Iyer. J, in the case of Chairman, Board of Mining Examination and Chief inspector of Mines Vs. Ramjee,AIR 1977 SC968, is quoted which reads as under: " ....: to be literal in meaning is to see the skin and miss the soul., The judicial key to construction is the composite perception of the deha and the dehi of the provision." Thereafter, the learned author has referred to various judgments of the Supreme Court and the High Court and finally it is observed that the correct interpretation is one that harmonizes the words in a way that it is in furtherance to the intention of the Legislature. Learned author says after referring to various principles laid down not only by Indian Court, but also by English Courts, that Courts should strongly lean against constructions, which would reduce a statutory provision to a futility. It has been so observed by the learned author in the said book: "The Courts will therefore reject that construction which will defeat the plain intention of the Legislature even though there may be some inexactitude in the language used (Dy. Custodian Vs. Official Receiver, AIR 1965 SC951, pp.956,957).If the Choice is between two interpretations, stated VISCOUNT SIMON, L.C., the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result - Union of India Vs. Sankalchand,AIR 1977 SC2328,p.2381;Superintendent and Remembrancer LAWB vs. Abani Maity, AIR 1979 SC1029,p.1033; Mohan Kumar Singhania Vs. Union of India, AIR 1992 SC1, p. 19." Finally,Honble Justice G.P,Singh has referred to a judgment of the Supreme Court, in the case of the Supreme Court in the case of Siraj-ul-Haq Vs. Sankalchand,AIR 1977 SC2328,p.2381;Superintendent and Remembrancer LAWB vs. Abani Maity, AIR 1979 SC1029,p.1033; Mohan Kumar Singhania Vs. Union of India, AIR 1992 SC1, p. 19." Finally,Honble Justice G.P,Singh has referred to a judgment of the Supreme Court, in the case of the Supreme Court in the case of Siraj-ul-Haq Vs. Sunni Central Board of Waqf,UP - AIR 1959 SC198,and after taking note of certain observations made and principles laid down by GAJENDRA GADKAR,J, has reproduced the same in the following manner: "It is well settled that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective and, where literal meaning of the words used in a statutory provision would manifestly defeat its object by making a part of it meaningless and ineffective, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative." ( 24. ) The principle of interpretation of statutory provisions and advancing the intention of the Legislature is further considered by the Supreme Court in the case of V.C. Rangadurai Vs. D. Gopalan and others,(1979) 1 SCC308. In the said case certain eventualities which may arise on a subsequent point of time, incapable of apprehension by the Legislature and meeting new and unforeseen needs while considering such statutes, are taken note of and in paragraph 11 of the said judgment, the following principles are laid down: "11. Wide as the power may,be, the order must be germane to the Act and its purposes, and latitude cannot transcend those limits. Judicial Legisputation to borrow a telling phrase of J. Cohen,[Dickerson: The Interpretation and Application of Statutes, P.238] is not legislation but application of a given legislation to new or unforeseen needs and situations broadly falling within the statutory provision. In that sense, interpretation is inescapably a kind of legislation. This is not legislation stricto sensu but application, and is within the courts province." ( 25. ) Again, in the case of M/s Girdhari Lal and sons Vs. In that sense, interpretation is inescapably a kind of legislation. This is not legislation stricto sensu but application, and is within the courts province." ( 25. ) Again, in the case of M/s Girdhari Lal and sons Vs. Balbir Nath Mathur and others, (1986) 2 SCC237, the principle of construing the enactment keeping in view the legislative intent and the principles to be followed for ascertaining the said intention so also the general principle of giving effect to plain meaning of a Rule and departure from that Rule and enforcing a construction to advance the object and purpose of enactment is considered. It is held in the aforesaid case by the Supreme Court that ascertainment of legislative intent is the basic rule of statutory construction, it is held that such a construction should be preferred, which advances the legislative intent. It is held in the aforesaid case that even though a construction in accordance to the plain language of the statute should be adopted, but if such a construction leads to anomalies, injustice or absurdity then deviation can be permitted and the Rule of statutory provision can be interpreted in such a manner that it advances the cause of justice. In the said case it has been held that when a particular provision is enacted, the draftsman may design his words to meet certain primary situations. These are the situations that may be existing while enacting a particular provision, but while interpreting the said provision after certain point of time it may be necessary for the Court to impute intention to the draftsman or legislate with regard to certain secondary situation, which may arise subsequently and by doing so it is held that the Court may interpret the provision by taking note of the subsequent developments classified as secondary situation and thereafter advance the cause of justice. For the sake of convenience, the principles in this regard laid down by the Honble Supreme Court after referring to the principles laid down in certain English case, are reproduced hereinbelow:- "6.....Even where the words of statutes appear to be prima facie clear and unambiguous it may sometimes be possible that the plain meaning of the words does not convey and may even defeat the intention of the legislature; in such cases there, is no reason why the true intention of the legislature, if it can be determined, clearly by other means, should not be given effect. Words are meant to serve and not to govern and we are not to add the tyranny of words to the other tyrannies of the world. 8. Once parliamentary intention is ascertained and the object and purpose of the legislation is known, it then becomes the duty of the court to give the statute a purposeful or a functional interpretation. This is what is meant when, for example, it is said that measures aimed at social amelioration should receive liberal or beneficent construction. Again, the words of a statute may not be designed to meet the several uncontemplated forensic situations that may arise. The draftsman may have designed his words to meet what Lord Simon of Glaisdale calls the "primary situation". It will then become necessary for the court to impute an intention to Parliament in regard to "secondary situations". Such "secondary intention" may be imputed in relation to a secondary situation so as to best serve the same purpose as the primary statutory intention does in relation to a primary situation. 9. ... For this purpose, where necessary the court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word if necessary. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word if necessary. 12.In Seaford Court Estates Ltd. v. Asher,(1949) 2 All ER155,164,Lord Denning, who referred to Plowdens Reports already mentioned by us said: "Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity.. [A] judge, cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a construction of the social conditions which gave rise to it and of the mischief which it was passed to . remedy and then he must supplement the written words so as to give force and life to the intention of the legislature...Put into homely metaphor it is this:A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it they would have straightened it out? He must then do as they would have done. A Judge should not alter the material of which the Act is woven,but he can and should iron out the creases. 13. In Rugby Joint Water Board v. Foottit,(1972) 1 All ER1057, 1076, 1077, Lord Simon of Glaisdale said: "The task of the courts is to ascertain what was the intention of Parliament, actual or to be imputed, in relation to the facts as found by the court... . On scrutiny of a statutory provision, it will generally appear that a given situation was within the direct contemplation of the draftsman as the situation calling for statutory regulation: this may be called the primary situation. As to this, Parliament will certainly have manifested an intention - the primary statutory intention. But situations other than the primary situation may present themselves for judicial decision - secondary situations. As to this, Parliament will certainly have manifested an intention - the primary statutory intention. But situations other than the primary situation may present themselves for judicial decision - secondary situations. As regards these secondary situations, it may seem likely in some cases that the draftsman had them in contemplation; in others not. Where it seems likely that a secondary situation was not within the draftsmans contemplation,it will be necessary for the court to impute an intention to Parliament in the way I have described,that is. to determine what would have been the statutory intention if the secondary situation had been within parliamentary contemplation (a secondary intention)." (Emphasis supplied) And, finally in paragraph 16, it is so held: 16. Our own court has generally taken the view that ascertainment of legislative intent is a basic rule of statutory construction and that a rule of construction should be preferred which advances the purpose and object of a legislation and that though a construction, according to plain language, should ordinarily be adopted, such a construction should not be adopted where it leads to anomalies, injustices or absurdities, vide K.P. Varghese v. ITO, (1981) 4 SCC 173 ; State Bank of Travancore v. Mohd. M. Khan, (1981) 4 SCC 82 , Som Prakash Rekhi v. Union of India, (1981) 1 SCC449; Ravula Subba Rao v. CIT, 1956 SCR 577 ; Govindlal v. Agricultural Produce Market Committee, (1976) 1 SCR 451 ; and, Babaji,Kondaji v. Nasik Merchants Coop. BankLtd,(1984)2SCC 50." ( 26. ) The aforesaid principle is to be followed by this Court while interpreting sub-rule (4) read with sub-rule (3) of Rule 7. That being so, if the intention of the rule maker in using the words existing and anticipated vacancies are taken note of, then meaning of these words have to be determined with reference to the purpose for which the rule is enacted and the requirement, which was paramount in the mind of the rule maker, while using the words in the manner done in the rule. ( 27. ) Rule 7,as already indicated hereinabove, pertains to procedure to be followed for promotion on the basis of merit-cum-seniority. As the best meritorious persons are required to be selected for the service, a particular zone of consideration is prescribed and which is determined in accordance to the requirement of sub-rule (1). ( 27. ) Rule 7,as already indicated hereinabove, pertains to procedure to be followed for promotion on the basis of merit-cum-seniority. As the best meritorious persons are required to be selected for the service, a particular zone of consideration is prescribed and which is determined in accordance to the requirement of sub-rule (1). A bare reading of sub-rule (4) would indicate that promotion exercise is undertaken for the purpose of filling up all the vacancies that may arise during the course of the year and the year as per rule starts from 1st January and ends on 31st December. The Rule contemplates that all the vacancies that would arise during this period should be worked out after taking into account the existing and anticipated vacancies and thereafter the promotion exercise conducted as per the Recruitment and Promotion Rules. The promotion exercise is conducted once in a year to fill up all the existing and anticipated vacancies. In determining the existing vacancies, there is no difficulty. However, the anticipated vacancies are to be worked out after foreseeing certain eventualities. These eventualities which may have consequential effect of creating vacancies are retirement of some employees, promotion of some employees to the higher post and deputation of some employees out of the department. These are some of the eventualities that can be foreseen and crystallized as those that may arise giving birth to certain vacancies. Apart from the eventualities contemplated in the rules, there may arise some peculiar situations, which may also result in certain vacancies coming up during the course of the year. These would also fall within the meaning of anticipated vacancies. However, the question would be as to whether these vacancies, which do not fall within the contingencies stipulated in the rule can be included in the category, as indicated in the rule. ( 28. ) The intention of the legislature is to ensure that all, the vacancies that may arise in the course of the year, between 1st January to 31st December, should be worked out and the promotion exercise conducted for the purpose of filling up all these vacancies. When the Rule was being drafted, it would not have been possible for the rule maker to foresee all the situations that may arise during the course of the year due to which vacancies may be created. When the Rule was being drafted, it would not have been possible for the rule maker to foresee all the situations that may arise during the course of the year due to which vacancies may be created. Some of the situations that were anticipated by the rule maker like retirement, promotion, deputation etc were incorporated in the Rules. There may be certain situation like the one existing in the present case, which could not be foreseen by the rule maker, but when the ruler maker wanted to see that that promotion exercise is conducted for the vacancies arising during the year, they would ultimately have thought of filling up all the vacancies that could arise in the year by the same exercise. It is, therefore, clear that even though the rule in question speaks about anticipated vacancies arising due to retirement, promotion, deputation etc, the intention of the rule maker could not be and should not have been to restrict the vacancies arising only to these eventualities. The intention when the rule speaks about vacancies arising out during the course of the year could be for all the vacancies that may arise for any reason, during the course of the year. Merely because the anticipated vacancies arose in the context of a different situation, which was not foreseen, that does not mean that it will not fall in the category of anticipated vacancies. This is also the principle laid down in the case of Girdhari Lal(supra). ( 29. ) When a service rule providing; for certain benefit to the employees are formulated, interpretation of the rule has to be done in a manner so as to grant benefit to maximum number of employees. Merely because the anticipated vacancies that may arise during the course of the year in the Rule refers to certain contingencies indicated therein, it cannot be held that the rule maker wanted to rule out all other contingencies or eventualities. If that was the intention, then the words used in the Rule could have been more stringent and specific to show that apart from the contingencies stipulated therein, no other contingency can be taken note of. There is nothing in the Rule to suggest that the rule maker wanted to restrict the contingencies to the one stipulated therein. Infact the words used are anticipated vacancies on account of. There is nothing in the Rule to suggest that the rule maker wanted to restrict the contingencies to the one stipulated therein. Infact the words used are anticipated vacancies on account of. If the words only on account of or some other restrictive words were used, the interpretation of Shri K.K. Trivedi could have been accepted. But, the words used in the Rule are not so stringent to suggest that the Legislature wanted restriction of the Rule only to the eventualities contemplated therein and not to anything more. It seems to be a case where certain anticipated eventualities are indicated in the Rule and certain eventualities. which could not be foreseen were not indicated, but if during the course of the year certain vacancies were anticipated which could not be thought of by the rule maker, when the rule was framed, a beneficial rule, which is for the benefit of the employee, has to be interpreted in such a manner that maximum number of employees can get benefit of the rule. It is, therefore, a case where the liberal interpretation theory canvassed by Shri Manoj Sharma should be accepted and the restrictive meaning by strict interpretation canvassed by Shri K.K. Trivedi cannot be accepted. This Court is of the considered view that the Rule was formulated for filling up of the vacancies that could arise during the course of the year and merely because the Legislature has referred to certain specific contingencies like retirement, promotion and deputation, it does not mean that other eventualities which may give rise to vacancies in the course of the year cannot be included in the Rule, as anticipated vacancies. ( 30. ) Accordingly, the interpretation canvassed by Shri K.K. Trivedi with regard to sub-rule (4) cannot be accepted, as the same does not fall in the line with the settled principles and the followed in the matter of interpreting such a Rule. ( 31. ) That apart, the interpretation given to the words unforeseen vacancies in sub-rule (3) canvassed by Shri K.K. Trivedi cannot be accepted. Unforeseen would mean something, which could not be anticipated or thought of at a relevant point of time. In the present case, petitioners in Writ Petition No.l4737/2008(S) want this Court to hold that the two vacancies, which were created, are the unforeseen vacancies. This contention of the petitioners is not correct. Unforeseen would mean something, which could not be anticipated or thought of at a relevant point of time. In the present case, petitioners in Writ Petition No.l4737/2008(S) want this Court to hold that the two vacancies, which were created, are the unforeseen vacancies. This contention of the petitioners is not correct. The two vacancies are not the unforeseen vacancies, they were the vacancies which were already anticipated on 28.2.06, when the Commissioner of Income Tax,Shri P.K. Das, submitted a proposal for increase of the vacancies. Unforeseen vacancies would be something, which could not be anticipated or foreseen at the time of holding of the promotion proceedings, but the vacancy which was already anticipated and sanction for which was already pending consideration before the Government will not come within the purview of an unforeseen vacancy. Infact the correct word to be used with regard to the present two vacancies are that they are the anticipated vacancies and not the unforeseen vacancies. That being so, filling up of the aforesaid two posts by persons in the waiting list on the ground that two unforeseen vacancies have arisen cannot be accepted. Infact the two vacancies were the anticipated vacancies, which have been sanctioned and after their sanction, they are required to be filled up in accordance to the Promotion and Recruitment Rules. ( 32. ) Accordingly, the first question formulated by this Court has to be answered by holding that the Rules in question have to be given a liberal interpretation, so that the purpose of formulating the rule is achieved to the maximum extent and if this theory is to be followed, then the interpretation canvassed by Shri K.K. Trivedi cannot be accepted. ( 33. ) Having held so, the second aspect of the matter can be taken up for consideration. ( 34. ) Even if the contentions advanced by Shri K.K. Trivedi were to be accepted and interpretation to the; Rule done in the manner canvassed, then in case the action of the authorities concerned in proceeding with the DPC on 19.5.06 is found to be unjustified arid an arbitrary decision tainted with legal malice, the action of the State Government in ordering a review DPC can be upheld. To consider this question, the records and the facts available are required to be taken note of. ( 35. To consider this question, the records and the facts available are required to be taken note of. ( 35. ) As already indicated hereinabove, it would be seen that the DPC,which met on 19.5.06 consisted on three Members. Two of the Members are Shri P.C. Das, Commissioner in the Department of Commercial Tax;and,Shri J.P. Singhal,Principal Secretary in the Department of Commercial Tax. In view of the proposed introduction of the VAT system in the State of Madhya Pradesh with effect from 1.4.06, File No.6(A)9/2006/l was initiated, proposing increase in the cadre strength of Additional Commissioners, Dy. Commissioners, Assistant Commissioners, Assistant Commercial Tax Officer and Commercial Tax Inspectors. This proposal was initiated by the Commissioner Shri P.C. Das himself on 28.2.06, and was forwarded for approval to the Minister concerned by the Principal Secretary Shri J.P. Singhal,on 1.3.06, and thereafter when the Minister approved the proposal it was Shri J.P. Singhal,who directed for further processing of the matter and placing it before the Finance Department for financial concurrence and thereafter before the Cabinet for approval. The original file indicates that at each and every level Shri Das and Shri Singhal were in know-how of the proposal to increase the post cadre strength of Additional Commissioner by two posts and that of Dy. Commissioner by 12 posts and after due concurrence from all concerned, it is seen that on 28.3.06, the Additional Secretary, in the General Administration Department approved the proposal and directed for placing it before the Cabinet after concurrence of the Finance Department and it was proposed to be kept in the Meeting of all the Departments on 3.4.06. Certain amendments were proposed on 12.4.06 and finally after considering the observations of the Finance Department on 21.4.06, the proposal for getting two posts sanctioned in the cadre of Additional Commissioners and 12 posts in the cadre of Dy. Commissioners was re-submitted to the Finance Department for their approval, 6n 21.4.06 by the Commissioner and approved by Shri J.P. Singhal on 24.4.06 and after concurrence of the Finance Department on 22.5.06, the matter was placed before the Cabinet and after approval of the Cabinet, the posts were sanctioned by orders of the Chief Secretary on 20.6.06. It is, therefore, clear on a perusal of the original file that the proposal to increase the cadre strength of Additional Commissioners by two posts and that of Dy. It is, therefore, clear on a perusal of the original file that the proposal to increase the cadre strength of Additional Commissioners by two posts and that of Dy. Commissioners by 12 posts was in the pipe-line right from 28.2.06 and even before the DPC met on 19.5.06, after complying with most of the procedural formalities, the final proposal was ready on 25.4.06 and; when the final proposal was placed before the Finance Department after concurrence of Shri J.P. Singhal on 24.4.06, it could be assumed that on 24.4.06 Shri J.P. Singhal and Shri P.K. Das were aware of the fact that two additional posts in the cadre of Additional Commissioners are being sanctioned in due course! Considering this, it would have been more appropriate for these authorities, who were Members of the DPC,to postpone consideration so that the additional posts could be sanctioned and after its sanction a final decision taken. That apart, when all these process was going on,Shri Ashok Kumar Shukla and certain Employees Union had submitted representation and from the documents filed by Shri Ashok Kumar Shukla,in Writ Petition No.4011/2007(S), particularly Annexure P/6, P/7 and P/8, it would be seen that the confidential reports of the 12 Dy. Commissioners, who were to be considered for promotion to the post of Additional Commissioners, for the year 2005, were not available. Confidential Report for the year Z004 was available only in the case of one officer. It was under these circumstances, when the matter was placed before the Minister, who recommended for postponement of the DPC to be held on 19.5.06. Ignoring the following factors: (i) Non-availability of confidential reports for 2004 and 2005 of most of the officers; (ii) Two additional posts are being created and, therefore, two anticipated vacancies are available; (iii) Objection of the Employees Union and recommendation of the Minister for postponement of the DPC; (iv) Postponement of the DPC in the case of promotion to the post of Dy. Collector a day before holding of the DPC. (v) Additional Secretarys noting that DPC may be held and the objections of the Union and others would be considered by the DPC,surprisingly the DPC did not consider the objections and submitted its report. Collector a day before holding of the DPC. (v) Additional Secretarys noting that DPC may be held and the objections of the Union and others would be considered by the DPC,surprisingly the DPC did not consider the objections and submitted its report. In the light of these factors, when the Members of the DPC themselves were aware of the fact that in the course of the year two more additional vacancies are anticipated, in all fairness they should have requested the Chairman to postpone the DPC and to consider the matter on a later date. For the reasons, which remain unexplained, not only was the DPC held on 19.5.06, but under similar circumstances or rather under identical situation, in the case of promotion to the post of Dy. Commissioner, Commercial Tax, a different yardstick was adopted and the proceedings of the DPC adjourned. Reasons for doing so is not clear and if after evaluating all these circumstances the GAD recommended for conducting a review DPC, it is the considered view of this Court that the Government has not committed any error in accepting the aforesaid recommendations. The conduct of the Officers and their insistence in proceeding with the DPC on 19,5.06, inspite of the fact that cogent and justifiable reasons were available for postponement of the DPC remains unexplained and, therefore, Shri Manoj Sharma is right in contending that a malafide,legal in nature, is writ large from the material available on record. The department concerned has acted in a very unreasonable, unjust and arbitrary manner and if the government has chosen to act in a reasonable and fair manner to correct the aforesaid erroneous departmental action, this Court is of the considered view that the Government has not committed any error. Even otherwise, Rule 13 of the Promotion Rules empowers the GAD to clarify matters of doubt with regard to enforcement of the Promotion Rules. ( 36. ) It may further be taken note of that when the recommendations of the DPC were made on 19.5.06, Writ Petition No.4011/2007(S) filed by Shri Ashok Kumar Shukla was pending before this Court. Notices were issued on this petition on 2.7.07 and in the meanwhile two additional posts were created on 20.6.06 i.e.... within a month of the recommendations of the DPC. Notices were issued on this petition on 2.7.07 and in the meanwhile two additional posts were created on 20.6.06 i.e.... within a month of the recommendations of the DPC. Inspite of all these, the Department proceeded to issue the promotion orders on the basis of the recommendations of the DPC on 12.7.06, 17.11.06 and 21.2.07 i.e.. after the posts were created. The haste in the matter for doing so remains unexplained. When the two additional posts-were created on 20.6.06, the promotions were not effected or ordered and on that date only a select list was prepared. Persons in the select list had no right to seek their appointment and when the entire matter was pending before the GAD, issuance of the promotion order could have been postponed. However, these were not done and on the recommendations of the GAD, the decision is taken to conduct the review DPC. It is the considered view of this Court that the decision taken by the Government in the facts and circumstances of the case is proper and the same does not warrant any interference now in these proceedings. ( 37. ) Even though during the course of hearing Shri K.K. Trivedi submitted that a review DPC cannot be held, but infact if the order-dated 11.4.08 is perused, it would be seen that what is directed is to conduct is a DPC,again after taking note of the addition of two posts and making consequential changes in the zone of consideration. This infact is the only manner in which the irregularity committed by the department can be undone for the purpose of doing substantial justice to all concerned. Therefore, this Court does not find any error in the orders passed by the State Government warranting interference, merely because this DPC to be held is termed as Review-DPC. ( 38. ) Accordingly, in the facts and circumstances of the case, the order passed by the State Government vide Annexure P/13,on 11.4.08, filed in Writ Petition No.4011/2007(S) is upheld. Therefore, this Court does not find any error in the orders passed by the State Government warranting interference, merely because this DPC to be held is termed as Review-DPC. ( 38. ) Accordingly, in the facts and circumstances of the case, the order passed by the State Government vide Annexure P/13,on 11.4.08, filed in Writ Petition No.4011/2007(S) is upheld. Writ Petition Nos.14737/08(S) and 14742/08(S) are dismissed in view of the above and in view of the aforesaid order passed and the order-dated 11.4.08, passed by the State Government, which is upheld by this Court, now no further orders are necessary in Writ Petition No.4011/2007(S) filed by Shri Ashok Kumar Shukla,and the said petition is dismissed as having been rendered infructuous because of the aforesaid reasons 39; In view of the above, Writ Petition No.4011/2007(S) is disposed of as having been rendered infructuous and Writ Petition Nos.l4737/08(S) and 14742/08(S) are dismissed without any order so as to costs. P. 4011/07 is disposed of.