JUDGMENT Hon’ble Rajiv Lochan Mehrotra, J.—For quashing the order dated 1.9.2005 passed by Central Administrative Tribunal, Allahabad the present writ petition has been preferred by Union of India and others. By the impugned order Union of India and others (Petitioners in the present writ petition) were directed to ask the applicants and similarly situated persons (Respondents in the present writ petition) whether they would opt for retention of the old post of Foreman and further higher posts for their promotion in original cadre and if so, they be allowed to continue and if found fit, they be notionally promoted from the date of vacancy arose. 2. As per petition, respondent No. 2 was appointed in the office of petitioner No. 5 as Machinist Trainee in the year 1963 and after due process he was promoted as Senior Chargeman and then after as Foreman on 22.2.1988, which is said to be the highest post in category of supervisory cadre and also a feeder grade of Technical Officer (Group ‘B’) On the recommendation of the Fifth Pay Commission four grade structure was introduced for supervisory cadre vide gazette notification dated 30th September, 1997, which runs as under : (I) Chargeman-II, (II) Chargeman-I, (III) Assistant Foreman (Gazetted Group ‘B’) (IV) Foreman (Gazetted Group ‘B’) 3. The Foreman in the previous structure was re-designated as Chargeman-I in the new structure in the same and equal pay-scales, while the Assistant Engineers in the previous structure were re-designated as Assistant Foreman (Group ‘B’ Gazetted). As the respondent No. 2 was lower to the post of Assistant Foreman grade-wise, hence, he was not re-designated as Assistant Foreman/Assistant Engineer. Similarly placed Foreman/Chargeman-I were also not given this benefit. Hence respondent No. 2 in the individual capacity and respondent No. 1 for other members of the institution filed Original Application No. 333 of 2004 before the Central Administrative Tribunal, Allahabad praying therein that all such persons working as Foreman in the previous structure be promoted as Assistant Engineers w.e.f. October 2001 and Assistant Engineer Selection Grade w.e.f. 9.4.2003 and opposite parties be also directed to fulfil the vacant post of Assistant Engineers as on October 2001 and Assistant Engineers Selection Grade as on 9.4.2003. The Tribunal while deciding the present application misinterpreted to the extent that respondent No. 2 has been demoted from the post of Foreman to Chargeman-I. It is also submitted by the petitioners that the posts of Assistant Engineer and Assistant Engineer Selection Grade were abolished in the new structure but the designation of Assistant Engineer had been retained only in case of individuals who were in position of Assistant Engineer on the date of issue of the Government Order dated 20.9.2002 and otherwise has been declared as a dead cadre. 4. The respondent No. 2, Kripashankar Yadav vide his counter-affidavit said that up to the year 2000, seniors to the respondent No. 2 had already been promoted to the post of Assistant Engineers and they had further been promoted to the post of Assistant Engineer Selection Grade. Moreover, redistribution/restructuring of post was made without framing the Recruitment Rules. Emphasis was given on the letter dated 21.3.2001 circulated to all on behalf of DG, EME, filed as Annexure No. 26 to the writ petition, with the information that 42 posts of Assistant Engineers are to be filled by promotion from Foreman part-I and Foreman Part-II, Chief Draftsman and Senior Store Superintendent in the ratio of 12,24, 3 and 3 while 6 posts by direct recruitment and DPC to this effect had been conducted and all the candidates in the zone of consideration had been included in the DPC. 5. It shall be pertinent to mention here that after implementation of 5th Pay Commission, Government of India on 30.9.1997 issued a extraordinary Gazette, part of which runs as under : “The revised scales of pay mentioned in column 4 of this part of the Notification for the posts mentioned in column 2 have been approved by the Government. However, it may be noted that in certain cases of the scales or pay mentioned in column 4, the recommendations of the Pay Commission are subject to fulfillment of specific conditions. These conditions relate inter alia to changes in recruitment rules, restructuring of cadres, re-distribution of posts into higher grades etc. Therefore, in those cases where conditions such as changes in recruitment rules, etc. These conditions relate inter alia to changes in recruitment rules, restructuring of cadres, re-distribution of posts into higher grades etc. Therefore, in those cases where conditions such as changes in recruitment rules, etc. which are brought out by the Pay Commission as the rationale for the grant of these upgraded scales, it will be necessary for the Ministry of Defence to decide upon such issues and agree to the changes suggested by the Pay Commission before applying these scales to these posts w.e.f. 1.1.1996. In certain other cases where there are conditions prescribed by the Pay Commission as pre-requisite for grant of these scales to certain posts such as cadre restructuring, redistribution of posts, etc. it will be necessary for the Ministry of Defence to not only accept these preconditions but also to implement them before the scales are applied to those posts. It would, therefore, be seen that it is implicit in the recommendations of the Pay Commission that such scales necessarily have to take prospective effect and the concerned posts will be governed by the normal replacement scales until then.” 6. Perusal of the pleadings make it clear that no steps were taken by the petitioners in the light of the directions given in the Gazette. 7. Prior to filing of Original Application No. 333 of 2004 before the Central Administrative Tribunal, Allahabad, respondent No. 2 had filed another Original Application No. 1353 of 2003 before the Central Administrative Tribunal, Allahabad for the same cause of action and while deciding that application, Central Administrative Tribunal, Allahabad had directed the petitioners of this writ petition to dispose of the pending representation of respondent No. 2 by speaking order. Petitioners rejected the representation of respondent No. 2 on the ground that as per 5th Pay Commission recommendations, Government of India, Ministry of Defence has introduced the revised structure for technical supervisory staff in defence establishments vide order dated 26.12.2001 and the post of foreman in the previous structure was redesignated as Chargeman Grade-I in the same pay-scale, therefore, he cannot claim to have been demoted in anyway. Moreover, in the light of Government Order dated 20.9.2002, the post of Assistant Engineer was abolished but the existing incumbents of the post of Assistant Engineer were allowed to retain the designation till they are wasted out by the promotion/retirement. Moreover, in the light of Government Order dated 20.9.2002, the post of Assistant Engineer was abolished but the existing incumbents of the post of Assistant Engineer were allowed to retain the designation till they are wasted out by the promotion/retirement. Assistant Engineers and Assistant Foreman were placed in the same pay-scale in the new structure. 8. Bare perusal of the explanation submitted by petitioners show that the post of Assistant Engineer remained in the existence till 20.9.2002 while respondent No. 2 was due to be promoted against the vacancies available in the year 2001. Had he been promoted in the year 2001, DPC of which was in process, he would have been promoted to the post of Assistant Engineer before 20.9.2002 and thereafter to the highest post of the cadre as Assistant Engineer (Selection Grade) in due time. 9. It is not disputed that respondent No. 2 was working as Foreman/Chargeman-I and was in feeder cadre of technical officer Group B and now after implementation of four grade structure he is placed two steps below the feeder cadre i.e. below the Assistant Foreman (Gazetted Group ‘B’) and Foreman (Gazetted Group ‘B’). No doubt he is promoted as Assistant Engineer on 7.4.2003 and retired on 31.8.2005 from the same post but had he been promoted in the vacancies of 2001, he would have received the next promotion i.e. Assistant Engineer (Selection Grade) before his superannuation. 10. It is pertinent to mention here that four grade structure on technical staff was introduced for the first time vide order dated 20.9.2002 while the grievance of the respondent No. 2 was prior to the implementation of four grade structure. 11. A perusal of impugned judgment reveals that till the date of retirement of the respondent No. 2, new Recruitment Rules relating to four grade structure were not finalized. Therefore, withholding the DPC in the year 2001 for promotion from the post of Foreman/Chargeman-I to the post of Assistant Engineer (technical officer Group ‘B’ post) was not justified. 12. Withholding DPC even on availability of of vacancies, just for want of Recruitment Rules, is unfair and unjust. These vacancies could have been filled by that time in the light of the existing rules. 13. The restructuring of the posts and the promotion in its light could have been operative only after the amendment of the Recruitment Rules. 12. Withholding DPC even on availability of of vacancies, just for want of Recruitment Rules, is unfair and unjust. These vacancies could have been filled by that time in the light of the existing rules. 13. The restructuring of the posts and the promotion in its light could have been operative only after the amendment of the Recruitment Rules. The decision of the petitioners to keep all the higher posts vacant till the restructuring took place and the new rules framed was not a rational judicious decision which certainly deprived the respondent No. 2 and similarly situated persons of the opportunity of getting their due promotions. The denial of such legitimate claim for being considered for promotion was clearly violative of Act 14 and 16 of the Constitution of India. 14. No good cause for not taking up the matter of promotion of eligible candidates particularly, when the vacancies were available is shown. The Tribunal has therefore, rightly allowed the application of respondents. There appears no manifest error of law in the impugned judgment. Thus the present writ petition is liable to be dismissed. 15. Accordingly, the present writ petition is dismissed with the above observations.