JUDGMENT Hon’ble Ashok Bhushan, J.—This special appeal has been filed against the judgment and order dated 2nd December, 2004 of the learned Single Judge by which the writ petition filed by the appellant was dismissed. 2. Brief facts of the case as emerge from pleadings of the parties are; the appellant was appointed as Photo Artist in the Department of Geology, University of Allahabad by order dated 16th June, 1992. The Executive Council of the University of Allahabad vide its resolution dated 8th December, 1991 had resolved that appointment in higher technical posts shall be made by promotion from amongst the working technical staffs on the basis of seniority. A post of Technical Assistant was laying vacant in the Geology Department. The appellant’s case is that his application for promotion on the post of Technical Assistant was forwarded by the Geology Department in the year 1997 which was under consideration and was principally approved by the Vice-Chancellor and the matter was sent to the Registrar for issuing appropriate promotion order but the promotion order could not be issued. Subsequently by resolution dated 10th July, 1999 of the Executive Council the earlier rules/procedure for filling up the technical posts was changed and it was provided that technical posts be filled up after following the regular process by the selection committee. An order dated 3rd/5th August, 1999 was issued by the Registrar to the above effect. The order of promotion of the appellant was never issued, hence the appellant filed a writ petition being Writ Petition No. 35829 of 1999 on 20th August, 1999 praying for a writ of mandamus directing the respondents to release the promotion order of the appellant for the post of Technical Assistant in view of the resolution dated 8th December, 1991 and treat the appellant’s promotion with effect from 21st May, 1997 and further a mandamus was sought restraining the respondents from proceeding with the process of appointment to the post of Technical Assistant in the Department of Geology as per provision laid down subsequently vide notification/resolution dated 3rd/5th August, 1999. A counter-affidavit was filed by the University in the writ petition. In the counter-affidavit it has been pleaded that Vice-Chancellor never agreed for appointment of the appellant on the post of Technical Assistant and the University having decided to fill up the technical posts by the selection committee, the University is going to advertise the post. A counter-affidavit was filed by the University in the writ petition. In the counter-affidavit it has been pleaded that Vice-Chancellor never agreed for appointment of the appellant on the post of Technical Assistant and the University having decided to fill up the technical posts by the selection committee, the University is going to advertise the post. The writ petition was heard and by judgment and order dated 2nd December, 2004, the learned Single Judge dismissed the writ petition. The learned Single Judge took the view that the appellant did not get any vested right on the basis of previous recommendation as before the recommendation could be implemented the policy has been changed after which promotion can be made by the selection committee. The learned Single Judge did not accept the contention of the appellant that Vice-Chancellor has accorded approval to the promotion of the appellant. 3. Sri Awadhesh Pratap Singh, learned counsel for the appellant, challenging the judgment of learned Single Judge, has contended that appellant was eligible for promotion and his case having been recommended for promotion on the post of Technical Assistant, the promotion ought to have been accorded as per the earlier resolution dated 8th December, 1991 of the Executive Council by which the technical posts were required to be filled up by working technical staffs on the basis of seniority. It is submitted that change of procedure/rule for appointment on the post of Technical Assistant by resolution dated 10th July, 1999 was not attracted in the present case since the vacancy had occurred earlier to the change of rule and the same was required to be filled up as per earlier resolution. It has been submitted that appellant fulfilled the qualification for appointment on technical post and the vacancy which had arisen prior to change of rule could only be filled up by virtue of earlier resolution. Learned counsel for the appellant has placed reliance on judgments of the Apex Court in the case of Y.V. Rangaiah and others v. J. Sreenivasa Rao and others, 1983 SCC (L & S) 382, P. Murugesan and others v. State of Tamil Nadu and others, (1993)2 SCC 340 , Union of India and others v. Tushar Ranjan Mohanty and others, (1994)5 SCC 450 and B.L. Gupta v. Municipal Corporation of Delhi, 1998 (9) SCC 223 . 4. 4. Sri V.K. Singh, learned Senior Advocate, assisted by Sri Gautam Baghel, appearing for the University, has contended that the appellant has no indefeasible right to claim promotion on the post of Technical Assistant. It is submitted that Vice-Chancellor at no point of time has approved the promotion of the appellant on the post of Technical Assistant and in view of subsequent resolution dated 10th July, 1999 the post is to be filled up by advertisement and by regular selection committee. It is further submitted that qualification of the post now is B.Sc. which is not possessed by the appellant, hence he cannot claim promotion on the post of Technical Assistant. It is further submitted that Executive Council of the University has taken a decision to fill up the technical posts by selection committee with object to get better candidates by selection and the appellant having never been promoted prior to 10th July, 1999, no mandamus can be issued for promoting the appellant on the post of Technical Assistant. It is submitted that the learned Single Judge has rightly dismissed the writ petition. 5. We have considered the submissions of learned counsel for the parties and perused the record. 6. From the materials, which have been brought on the record, it does appear that case of the appellant for promotion on the post of Technical Assistant was under consideration since 1997, however, there is no material to indicate that at any point of time a decision was taken by the Vice-Chancellor to promote the appellant on the post of Technical Assistant. During the period when the consideration of the appellant for promotion was in progress, the Executive Council passed a resolution on 10th July, 1999 that henceforth the post of Technical Assistant shall be filled up by the selection committee. Had the decision was taken to promote the appellant prior to 10th July, 1999, the case would have been different. The issue to be considered in this appeal is as to whether after resolution of the Executive Council dated 10th July, 1999 still the appellant can claim promotion on the post of Technical Assistant on the basis of resolution of the Executive Council dated 8th December, 1991. After the resolution dated 10th July, 1999, the post is to be filled up by considering the claim of all eligible persons by the selection committee after due advertisement. After the resolution dated 10th July, 1999, the post is to be filled up by considering the claim of all eligible persons by the selection committee after due advertisement. The posts of Technical Assistant which were required to be filled up by promotion by considering the existing technical staff on the basis of seniority and suitability has been changed and now the post is to be filled up by recruitment through advertisement and by selection committee. The appellant is not entitled for the post of Technical Assistant after the resolution dated 10th July, 1999 but the appointment is to be made through selection committee. A person who is entitled to be considered for promotion has a right of consideration but a candidate cannot claim that he should be promoted on the post. No such rules, regulations or circulars have been brought on the record which may indicate that any vacant post is to be necessarily filled up within a particular period of time. The present is not a case for initiating any process for recruitment by the University, rather present is a case where the appellant himself has made an application for being considered for promotion which was forwarded by the department to the Vice-Chancellor and the matter remain under consideration when the Executive Council passed the resolution dated 10th July, 1999. The fact that the post was vacant and the appellant’s case was under consideration does not amount creating any vested right or indefeasible right in the appellant to claim promotion. 7. The judgment of the Apex Court in Y.V. Rangaiah’s case (supra), relied by the learned counsel for the appellant was a case where of the Andhra Pradesh Registration and Subordinate Service Rules was under consideration. Rule 4 of the said Rules provided that the list of approved candidates for appointment by transfer, where the Public Service Commission is not consulted on the suitability of a candidate, shall be prepared in the month of September every year. The said rule further provided that list of approved candidates shall contain such number of candidates as is approximately equal to the number of vacancies expected to arise during the currency of that list. The said rule further provided that list of approved candidates shall contain such number of candidates as is approximately equal to the number of vacancies expected to arise during the currency of that list. In the said case the list was not prepared as on 1st September, 1976 instead it was considerably delayed before which amendments in the Rules were incorporated by Government order dated 22nd March, 1977 whereby consideration of Lower Division Clerks for appointment as Sub-Registrar Grade-II were done away with and promotion or transfer to that cadre was to be made from amongst Upper Division Clerks employed in the Registration and Stamps Department. In the said context following was laid down in paragraph 9 which is as under : “9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Register Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.” 8. In Y.V. Rangaiah’s case (supra) since the rules specifically provided preparation of list by September each year, it was obligatory for the Department to prepare the list and non-preparation of list deprived the claim of those who were eligible before September, 1976 for inclusion in the panel, hence the aforesaid judgment is distinguishable and does not help the appellant. 9. In Y.V. Rangaiah’s case (supra) since the rules specifically provided preparation of list by September each year, it was obligatory for the Department to prepare the list and non-preparation of list deprived the claim of those who were eligible before September, 1976 for inclusion in the panel, hence the aforesaid judgment is distinguishable and does not help the appellant. 9. In P. Murugesan’s case (supra) the Apex Court had occasion to consider the promotion to the post of Assistant Executive Engineer from two sources i.e. graduate Assistant Engineers and diploma holder Junior Engineers. By the amendment the ratio of 3:1 between degree holders and diploma holders in promotion was provided. In the said case Section 87 of the Madras City Municipal Corporation Act, 1919 was relied which provided that if a vacancy occurs in any office included in Class I-B or Class II, or any new office in Class I-B or Class II is created, the council shall within three months appoint any qualified and suitable person to hold such office. The contention of learned counsel for the diploma holder was that sub-section (1) of Section 87 obligate the council to fill-up the vacancy within three months on occurrence of vacancy by a qualified and suitable person. In view of the aforesaid submission and facts, the Apex Court held that vacancies which have arisen three months prior to the coming into force of the amendment shall be filled up from diploma holders by following unamended rules. Following was laid down by the Apex Court in paragraphs 25 and 27 of the said judgment : “25. The contention of the learned counsel is this: sub-section (1) of Section 87 obligates the council to fill up a vacancy within three months of occurrence of a vacancy by a qualified and suitable person. Sub-section (3) provides the consequence of the default of the council in making an appointment within the time prescribed by sub-section (1). In such eventuality the State Government becomes entitled to appoint a person, who in their opinion is qualified and suitable for such office and the person so appointed shall be deemed to have been appointed by the council. Sub-section (4) empowers the council to make a temporary appointment pending an appointment under Section (1) or sub-section (2). In such eventuality the State Government becomes entitled to appoint a person, who in their opinion is qualified and suitable for such office and the person so appointed shall be deemed to have been appointed by the council. Sub-section (4) empowers the council to make a temporary appointment pending an appointment under Section (1) or sub-section (2). Sub-section (2) says that if the State Government refuses to confirm the appointment made by the council under sub-section (1), the council shall have to appoint some other qualified and suitable person within forty-five days from the date of receipt of the order of the Government refusing confirmation. The counsel contends that in view of the said provision, the vacancies which arose three months prior to the date of the commencement of the impugned amendment should be filled according to the unamended rules i.e., without reference to the quota. He relies upon the decisions of this Court in Rangiah v. Srinivasa Rao, 119831 3 SCC 284; P. Ganeshwar Rao v. State of Andhra Pradesh, (1988) Supp. SCC 740; P. Mahendran and others v. State of Karnataka and others, (1990) 1 SCC 411 and Devin Katti and others v. Karnataka Public Service Commission and others, (1990) 3 SCC 157 . 27. In our opinion Section 87 does indicate and manifest the concern of the Legislature that the vacancies occurring in the Corporation Service should not be kept unfilled for a period of more than three months. Sub-section (3) which provides for the consequence of default on the part of the council to abide by sub-section (1) emphasises the concern of the Legislature. So also does sub-section (2). Sub-section (4) says that if there is going to be any delay or if a suitable or qualified person is not available, the council may appoint a person on temporary basis. The said provision is, therefore, analogous to, and indeed more specific than rule 4 of the Andhra Pradesh Registration and Subordinate Service Rules considered in Rangiah v. Srinivasa Rao. Accordingly it must be held that the learned counsel for respondents 3 to 8 is right in his submission that the vacancies occurring prior to three months before the date of commencement of the impugned amendment ought to have been filled in accordance with the rules then obtaining. Accordingly it must be held that the learned counsel for respondents 3 to 8 is right in his submission that the vacancies occurring prior to three months before the date of commencement of the impugned amendment ought to have been filled in accordance with the rules then obtaining. At the same time we cannot fail to recognise the force in the argument of the learned counsel for the appellants that the respondents not having raised the said contention in the High Court i.e., before the learned Single Judge or the Division Bench should not be allowed to raise the same in this Court for the first time. On a balancing of the contending equities, we are of the opinion that the following direction would be the appropriate one in the particular facts and circumstances of this case. The direction is this : The Corporation shall ascertain the vacancies in the category of Assistant executive engineers, that have arisen three months prior to the coming into force of the impugned amendment (introducing the quota of 3:1 as between degree-holders and diploma-holders) and shall work out the vacancies which would have gone to the diploma-holders if unamended Rules had been followed. The Corporation shall also ascertain which of the diploma-holders would have been promoted in those vacancies. Such diploma-holders will be promoted in the vacancies that may be existing as on today and those that may arise in future. Until these diploma-holders are so promoted to the category of Assistant Executive Engineers, no degree-holders shall be promoted. After these diploma-holders are so promoted and thereafter, it is obvious the amended Rules shall be applied and followed. It is further directed that as and when a diploma-holder is promoted in pursuance of this direction, his promotion shall be given effect to from the date he ought to have been promoted. Such diploma-holders promotees shall be entitled to the benefit of seniority and pay-fixation flowing from such retrospective promotions, but they shall not be entitled to the arrears of difference in salary for the period they have not actually worked as Assistant Executive Engineers.” 10. The aforesaid case is also distinguishable since there was statutory requirement of filling up the posts within three months from occurrence of the vacancies, hence the diploma holders had right to be considered on vacancies which had arisen three months prior to amendment in the Rules. 11. The aforesaid case is also distinguishable since there was statutory requirement of filling up the posts within three months from occurrence of the vacancies, hence the diploma holders had right to be considered on vacancies which had arisen three months prior to amendment in the Rules. 11. In the case of Union of India v. Tushar Ranjan Mohanty (supra) the amendment bringing appointment by promotion within the purview of reservation retrospectively was under challenge. It was held that power of amendment cannot be used to nullify the right vested in a person under the statute or constitution. Following was laid down by the Apex Court in paragraphs 14 and 15 of the said judgment : “14. The legislatures and the competent authority under Article 309 of the Constitution of India have the power to make laws with retrospective effect. This power, however, cannot be used to justify the arbitrary, illegal or unconstitutional acts of the Executive. When a person is deprived of an accrued right vested in him under a statute or under the Constitution and he successfully challenges the same in the Court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation. 15. Respectfully following the law laid down by this Court in the judgments referred to and quoted above, we are of the view that the retrospective operation of the amended Rule 13 cannot be sustained. We are satisfied that the retrospective amendment of Rule 13 of the Rules takes away the vested rights of Mohanty and other general category candidates senior to Respondents 2 to 9. We, therefore, declare amended Rule 13 to the extent it has been made operative retrospectively to be unreasonable, arbitrary and, as such, violative of Articles 14 and 16 of the Constitution of India. We strike down the retrospective operation of the rule. In the view we have taken on the point it is not necessary to deal with the other contentions raised by Mohanty.” 12. The said case is clearly distinguishable and has no application in the present case since present is not a case of any retrospective amendment. 13. In B.L. Gupta’s case (supra) the Recruitment Rules of 1978 were amended in the year 1995 with prospective effect. The said case is clearly distinguishable and has no application in the present case since present is not a case of any retrospective amendment. 13. In B.L. Gupta’s case (supra) the Recruitment Rules of 1978 were amended in the year 1995 with prospective effect. In the said case post of Assistant Accountants were advertised in the month of January, 1993 and examination was held on 26th December, 1993. There was 171 posts for which process started. The result was declared in February, 1994 and only 79 persons were appointed. The writ petitions were filed by two groups of persons, one by Assistant Accountants who were holding the current duty charge of Assistant Accountants and another by Junior Clerks who had taken the examination. During pendency of the writ petitions the rules were amended. The High Court directed appointment of 79 persons pursuant to the examination held in the year 19943 and rest of the vacancies were directed to be filled up as per amended rules. In above context following was laid down in paragraphs 8, 9 and 10 : “8. In these appeals the main contention which has been raised by the aggrieved erstwhile Junior Clerks is that the vacancies which had arisen prior to 1995 amendment of the Rules could only be filled as per the Rules of 1978. Therefore, the High Court could not have directed the vacancies which had arisen prior to 1995 Rules to be filled according to 1995 Rules. It was secondly submitted that the number of vacancies which existed being 171 and if the minimum standard which was required to be attained by the persons taking the examination was 50%, as was alleged to have been stated in the counter-affidavit filed in the High Court and 171 candidates were available, then the number of posts which should have been filed was 171 and the shortfall in filling up of the vacancies should be made good. Mr. Mr. Sanghi, on the other hand, submitted that as his clients have been working as Assistant Accountants ever since 4.1.1990 and a large number of them had retired and only about 140 or so remained in service and who are likely to retire in the near future, it would be very unjust that they who were previously working as Senior Clerks and were senior to the other appellants, who were erstwhile Junior Clerks, should be required to take the examination and compete with them. 9. When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr. Mehta to a decision of this Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission. In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah v. J. Sreenivasa Rao, P. Ganeshwar Rao v. State of A.P. and A.D. Calton v. Director of Education, it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules. Though the High Court has referred to these judgments, but for the reasons which are not easily decipherable its applicability was only restricted to 79 and not 171 vacancies, which admittedly existed. This being the correct legal position, the High Court ought to have directed the respondent to declare the results for 171 posts of Assistant Accountants and not 79 which it had done. 10. We are unable to agree with Shri Sanghi that by virtue of their length of service while holding current duty charge as Assistant Accountants, his clients should be regularised in the said posts. Merely because the same posts have been upgraded from Senior Clerks to Assistant Accountants, it would not mean that persons who were given the current duty charge could be regularised without selection. The client of Mr. Sanghi presumably hold lien in the posts of Senior Clerks. Merely because the same posts have been upgraded from Senior Clerks to Assistant Accountants, it would not mean that persons who were given the current duty charge could be regularised without selection. The client of Mr. Sanghi presumably hold lien in the posts of Senior Clerks. If they were to be regularised as Assistant Accountants, the effect would be that they would be promoted to the said posts. The Rules of 1978 prescribe the mode in which the promotions can be made. This mode has to be followed before the appointments could be made. If no statutory rules had existed it may have been possible, though we express no opinion on it, that the existing incumbents may have been regularised. Where, however, statutory rules exist, the appointments and promotions have to be made in accordance with the statutory rules specially where it has not been shown to us that the Rules gave the power to the appointing authority of relaxing the said Rules. In the absence of any such power of relaxation, the appointment as Assistant Accountant could only be made by requiring the candidates to take the examination which was the method which was prescribed by the 1978 Rules.” 14. The said case is also distinguishable since the process for appointment had already begun prior to amendment and the candidates have appeared in the examination and it was held that only 79 posts were filed up wrongly whereas all posts existing were to be filled up by the examination. The Apex Court in the said case had relied on the judgment in the case of N.T. Devin Katti v. Karnataka Public Service Commission, (1990) 3 SCC 157 , in which it was held that amendment of recruitment rules shall have no effect on ongoing process. It is useful to quote paragraph 11 of the said judgment which is to the following effect : “11. There is yet another aspect of the question. 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 if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government orders. Candidates who apply and undergo written or viva voice test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement; however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospectively in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for 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 for being considered for selection in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature.” 15. The Apex Court in the said case held that when an 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, the persons who have made application acquire a vested right of being considered for selection in accordance with the rules as they existed and they 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. The judgment in B.L. Gupta’s case was on its own facts where process had already begun and examination had also been held prior to the amendment, hence the said case also does not help the appellant in the present case. 16. In view of the foregoing discussions, we are of the view that appellant cannot claim any indefeasible right of promotion and after the resolution of the Executive Council dated 10th July, 1999 the posts were required to be filled up through selection committee. We, however, observe that in the event the appellant has requisite qualifications and has not yet been appointed on the post of Technical Assistant, he may also be considered by the Selection Committee for being appointed as Technical Assistant in the event any post still lies vacant. Subject to above observation, the appeal is dismissed. ——————