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2025 DIGILAW 660 (HP)

Narender Mehta v. State of Himachal Pradesh

2025-04-07

SANDEEP SHARMA

body2025
JUDGMENT : (Sandeep Sharma, J. ) By way of instant petition filed under Article 226 of the Constitution of India, petitioner has prayed for following main reliefs: “(i)That impugned Annexure P-10 dated 31st July 2019 as also N-474 of Annexure P-11 & Annexure P-13, dated 2nd January, 2020 may very kindly be quashed and set aside; (ii) That this Hon’ble Court may very kindly be pleased to direct the respondents to implement the decision taken by the Council of Ministers in its meeting held on 10th April, 2017 in its entirety by extending all benefits which may accrue on account of such decision, in the interest of law and justice. (iii) That the respondents, particularly respondent No.1, may very kindly be directed to grant grade pay Rs.7800/- to the petitioner on and w.e.f. 7th October, 2017, when the petitioner was promoted to the post of Joint Registrar, and to pay arrears alongwith interest at the rate of 9% per annum.” 2. For having bird’s eye view, the facts as emerge from the pleadings adduced on record by the respective parties are that petitioner, who was initially appointed as Steno Typist/Jr. Scale Stenographer in Himachal Pradesh Judicial Department in the Year 1988, was appointed as Sr. Scale Stenographer in District Consumer Disputes Redressal Forum, Shimla in the month of August 1995. In month of February 2008, petitioner was promoted as Personal Assistant and thereafter, in December 2011, he was promoted as Private Secretary and was posted in Himachal Pradesh State Consumer Disputes Redressal Commission (in short “the Commission”). 3. On 1.10.2015, petitioner being fully eligible and qualified came to be promoted to the post of Assistant Registrar on the establishment of Commission in the pay scale of Rs. 15600-39100+5400/- Grade Pay. For completion of facts, it is pertinent to take note that one Sh. Sita Ram Dhiman, the then Assistant Registrar filed Writ petition before this court, which subsequently came to be transferred to erstwhile HP Administrative Tribunal, seeking revision of pay scale of the post of Assistant Registrar to bring it at par with post of Assistant Registrar on the establishment of High Court of Himachal Pradesh. Erstwhile Tribunal vide order dated 3.8.2017 passed in TA No. 6096 of 2015, directed the competent authority to grant pay scale of Rs. 10025-15100 +Rs.800/- as special allowance to Sh. Erstwhile Tribunal vide order dated 3.8.2017 passed in TA No. 6096 of 2015, directed the competent authority to grant pay scale of Rs. 10025-15100 +Rs.800/- as special allowance to Sh. Sita Ram Dhiman from due date by equating the post of Assistant Registrar at par with the coordinate post of Assistant Registrar on the establishment of High Court of Himachal Pradesh (Annexure P-1). Petitioner herein also filed OA No. 5488 of 2018 before the erstwhile Tribunal. In the afore proceedings erstwhile Tribunal directed the respondents to extend similar benefits to the present petitioner as well as similarly situate persons granting them pay scale as is applicable to the post of Assistant Registrar in the High Court. 4. During aforesaid period, draft Recruitment & Promotion Rules (Annexure P-2) were prepared by the respondent-Commission for the post of Registrar on the establishment of the Commission, which though were accepted by respondent No.2, but Council of Ministers in its meeting held on 4.3.2016 did not approve the same and ordered that post of Registrar be encadred in HAS (Annexure P-3). 5. On 10.4.2017, draft rules were submitted before the Council of Ministers for third time. In the proposal, three points were placed for consideration before the Council of Ministers, out of which, points No. (i) and (ii) were rejected while approval was given to point No.(iii), whereby Registrar was to be retained in HAS Cadre and proposal given in para 6 was to be further processed. Para 6 of memorandum for the consideration of Council of Ministers, reads as under: “6. While CMM has already decided that Registrar will be from HAS only, following is proposed: (i) Assistant Registrar may be promoted as Joint Registrar after service of two (02) years and Additional Registrar after service of four (04) years (by up-gradation of the post as a personal measure to the incumbent). Provision can be made in R&P Rules, if approved. (ii) Additional Registrar can be given chance of promotion as Registrar after two (02) years service as Additional Registrar by creating a separate post of Registrar Coordination.” 6. As per afore approval, petitioner herein, who at the relevant time, was working as Assistant Registrar was promoted to the post of Joint Registrar vide notification dated 6.10.2017 with increase in pay scale (Annexure P-6). As per afore approval, petitioner herein, who at the relevant time, was working as Assistant Registrar was promoted to the post of Joint Registrar vide notification dated 6.10.2017 with increase in pay scale (Annexure P-6). Vide representations dated 24.4.2019 (Annexure P-7) and 6.4.2019 (Annexure P-8), petitioner herein requested that his pay scale i.e. Rs.15600-39100+ Rs. 6000/- be increased to Rs. 15600-39100+7800/- Grade Pay from the date he assumed charge i.e. 7.10.2017. Though respondent No.2 being administrative department of the petitioner recommended the case of the petitioner and sent the same for approval to respondent No.1, however, case of the petitioner for higher pay scale was declined vide note No. 474, dated 4.7.2019 (Annexure P-11) and department was advised to maintain status quo because officer i.e. present petitioner had got three promotions/upgradations within eight years. Against the aforesaid decision, petitioner made a representation dated 21.10.2019, seeking review on the ground that decision rendered by the erstwhile HP Administrative Tribunal in TA No.6096 of 2015 on 3.8.2017, filed by Sh. Sita Ram Dhiman and OA No. 5488 of 2018, filed by the present petitioner, on the basis of which, he was granted pay-scale equivalent to that of Assistant Registrar of the High Court of Himachal Pradesh i.e. Rs.6600/- had attained finality. However in reply to the representation dated 21.10.2019, submitted by the petitioner, respondent apprised the petitioner that Finance Department has reiterated its decision dated 31.7.2019, meaning thereby afore representation came to be rejected. In the afore background, petitioner has approached this Court by way of present petition, praying therein for reliefs as have been reproduced herein above. 7. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Sanjeev Bhushan, learned Senior counsel appearing for the petitioner is that once Council of Ministers in its meeting held on 10.4.2017 had decided to give promotion to the petitioner to the post of Assistant Registrar and then as Joint Registrar after two years service as Assistant Registrar, and pursuant to such decision, petitioner herein stood promoted as Joint Registrar, there was no occasion, if any, to deny remaining benefit of promotion to the post of Additional Registrar after four years’ service as Joint Registrar. Mr. Mr. Bhushan, further submitted that though it has been claimed by the respondents that aforesaid decision dated 10.4.2017, was subsequently retracted by the Council of Ministers in its meeting held on 20.12.2021, but once part of decision dated 10.4.2017, stood implemented and in pursuance thereto, petitioner had become eligible for further promotion to the post of Additional Registrar, he could not have been denied promotion on the ground that Cabinet has reviewed its earlier decision dated 10.4.2017. While making this Court peruse various orders passed by this Court during the pendency of the case, Mr. Bhushan further contended that repeatedly, undertakings were given to the court that in terms of cabinet decision dated 10.4.2017, petitioner herein shall be promoted to the post of Additional Registrar after his having completed four years service in the post of Joint Registrar, but yet, he has not been promoted. Mr. Bhushan stated that once by way of an affidavit, an undertaking was given to this court that petitioner herein shall be promoted to the post of Addl. Registrar in terms of Cabinet decision dated 10.4.2017, rightful claim of the petitioner cannot be permitted to be defeated on the grounds set up in the reply. 8. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while supporting the impugned action of the respondents, strenuously argued that Council of Ministers is well within its power to review its earlier decision. He submitted that since at the time of convening of meeting on 10.4.2017, it was not brought to the notice of the Council of Ministers that in eight years of his service career, petitioner has got three promotions and financial upgradations. Mr. Kahol, further submitted that otherwise also, careful perusal of decision taken in meeting held on 10.4.2017, clearly reveals that Council of Ministers at the relevant time had decided to extend the benefit of promotion to the petitioner to the post of Joint Registrar after his having completed two years in the post of Assistant Registrar, taking note of the fact that there is no further promotional channel available in the Commission. He further submitted that since right of the petitioner to consider him against the post of Joint Registrar and thereafter against the post of Additional Registrar was not flowing from any Recruitment & Promotion Rules and such benefit, if any, was agreed to be extended to the petitioner as a personal measure, no illegality can be said to have been committed by the respondents while rejecting the claim of the petitioner for promotion to the higher post of Additional Registrar. 9. Having heard learned counsel for the parties and perused material available on record, this court finds that though petitioner was initially appointed as Senior Scale Stenographer in the Commission, but subsequently, he was promoted as Private Secretary and was posted in the Commission. Though having taken note of the fact that there are no further promotional avenues for the person occupying the post of Assistant/Additional Registrar, Commission prepared draft Recruitment & Promotion Rules for the post of Registrar in the establishment of commission on the analogy of neighboring States of Punjab, Haryana and Chandigarh including the Commission, but such rules were never approved by the Council of Ministers, rather having taken note of the fact that petitioner, who at the relevant time, was working as Assistant Registrar and there is no further chance of promotion, Administrative Department placed the matter before the Council of Ministers in its meeting held on 10.4.2017. Council of Ministers in its meeting held on afore date approved point No.iii, meaning thereby, though post of Registrar was retained in HAS cadre but proposal given in para-6 of the proposal framing Recruitment & Promotion Rules for the post of Registrar (Coordination) was also ordered to be processed. 10. As per aforesaid proposal, Assistant Registrar in the establishment of the Commission was directed to be promoted as Joint Registrar after period of two years and Additional Registrar after four years (by upgradation of the post as a personal measure to the incumbent). 10. As per aforesaid proposal, Assistant Registrar in the establishment of the Commission was directed to be promoted as Joint Registrar after period of two years and Additional Registrar after four years (by upgradation of the post as a personal measure to the incumbent). As per aforesaid decision taken by the Council of Ministers, petitioner though came to be promoted to the post of Joint Registrar after completion of two years as Assistant Registrar, but before he could be promoted to the post of Additional Registrar, matter again came to be placed before the Council of Ministers, which in its meeting held on 22.12.2021 (Annexure I) annexed with the reply filed by the Additional Secretary FCS&CA to the Government of Himachal Pradesh pursuant to order dated 19.11.2021 passed by this Court. Points for consideration which came to be placed before the Council of Ministers, are reproduced herein below: “Points for consideration As a part of the decision taken by the CMM in its meeting held on 10/04/2017 has been implemented by the Administrative Department by up-grading the post of Assistant Registrar to the post of Joint Registrar in the pay scale of Rs. 15600- 39100+Rs.6000/- GP as a measure personal to the present incumbent i.e. Sh. Narender Mehta w.e.f 01/10/2017 and by promoting him to the said post. The pay scale of Rs. 15600- 39100+Rs.6600/- GP has been granted to the present incumbent in pursuance to the orders passed by the Hon'ble Tribunal on dated 3rd August, 2017 in TA No. 6096 of 2015 titled Sita Ram Dhiman V/s State of H.P & Others. However, the pay structure of the said post is sub-judice in the Hon'ble High Court. Now, to implement the rest part of the decision taken by the CMM, the post of Joint Registrar is required to be up-graded as Additional Registrar and the incumbent is required to be promoted to the said post. Hence, the following points are submitted for consideration of the CMM:- (i) Whether the pay scale of Rs. 15600-39100+Rs.7600/- may be granted to the up-graded post of Joint Registrar, H.P. State Consumer Commission as claimed by him by filing CWP No. 1003/2020 before the Hon'ble High Court of Himachal Pradesh for which tentative financial implications will be as under:- Existing Scale of the post of Assistant Registrar w.e.f 01/10/2017 to 30/09/2021 Proposed Scale to the post of Joint Registrar w.e.f 01/10/2017 to 30/09/2021. Average per month Difference in salary of the officer (GP+DA+IR) Approximately Financial implications w.c.f 01/10/2017 to 30/09/2021 Rs.15600- 39100+6600/- Rs.15600- Rs. 39100+7600/- Rs.3500/- (Approximately.) Rs.3500/-x 48 months= 1,68,000/- (ii) Whether the decision taken by the CMM in its meeting held on 10/04/2017 may be implemented by up-grading the post of Joint Registrar to the post of Additional Registrar in the pay scale of Rs. 15600-39100+ Rs. 7800/- GP by promoting present incumbent to the said post in the absence of Recruitment and Promotion Rules. There is only difference of Rs.200/- between the Grade Pay of the post of Joint Registrar and Additional Registrar. (iii) Whether the Additional Registrar may be given chance of promotion as Registrar after two (02) years service as Additional Registrar by creating a separate post of Registrar Coordination as per CMM decision taken on 10/04/2017 in the absence of Recruitment & Promotion Rules.” 11. Administrative department while apprising Council of Ministers of its earlier decision taken on 10.4.2017, pursuant to which petitioner came to be promoted to the post of Joint Registrar in the pay-scale of Rs. 15100-39100 + Rs. 6000/- Grade Pay, also informed Council of Ministers that petitioner now in terms of decision dated 10.4.2017 is required to be promoted as Additional Registrar. Council of Ministers in its meeting held on 21.12.2021 approved point No.1, whereby pay scale of Rs. 15600-39100 +7600 GP, was ordered to be granted to the upgraded post of Joint Registrar as claimed by the petitioner by way of filing CWP No. 1003 of 2020, but other point, especially with regard to his promotion to higher post of Registrar after his having completed four years service was not agreed to. Pursuant to aforesaid order dated 22.12.2021, Principal Secretary (FCS&CA) granted pay-scale of Rs.15600-39100+ 7600 Grade Pay in favour of the petitioner as a personal measure w.e.f. 1.10.2017 i.e. date of assuming the charge of promotional post. 12. In aforesaid background, the question which needs consideration in the case at hand is “whether Council of Ministers could have retracted from its earlier decision taken in its meeting held on 10.4.2017, pursuant to which petitioner was promoted to the post of Joint Registrar, after his having served as Assistant Registrar for two years?” 13. 12. In aforesaid background, the question which needs consideration in the case at hand is “whether Council of Ministers could have retracted from its earlier decision taken in its meeting held on 10.4.2017, pursuant to which petitioner was promoted to the post of Joint Registrar, after his having served as Assistant Registrar for two years?” 13. Before exploring answer to the aforesaid question, it is pertinent to take note of the background in which Council of Ministers in its meeting held on 10.4.2017, agreed to give promotion to the petitioner to the post of Joint Registrar after his having completed two years service against the post of Assistant Registrar. 14. Though Council of Ministers in its meeting held on 10.4.2017, refused to accept the draft rules, but taking note of the fact that person working on the post has no further promotional avenues, decided to grant him promotion to the post of Joint Registrar after two years’ service as Assistant Registrar, which decision of Council of Ministers was implemented and he was promoted to the post of Joint Registrar on 6.10.2017. Though as per decision dated 10.4.2017, taken by the Council of Ministers, petitioner was to be granted promotion to the post of Additional Registrar after his having completed four years service against the post of Joint Registrar, but before such orders could be passed, Council of Ministers in its meeting held on 22.11.2021 decided to retract from its earlier decision taken on 10.4.2017. Though vide aforesaid decision, Council of Ministers concurred with the proposal of the Administrative Department to grant pay scale of Rs. 15600+39100 + 7600 GP to the petitioner against the upgraded post, but refused to grant him promotion to the post of Additional Registrar in the pay scale of Rs. 15600+39100 + 7600 GP in the absence of Recruitment & Promotion Rules. 15. Though Mr. Bhushan, learned Senior Counsel appearing for the petitioner, vehemently argued that Council of Ministers could not have retracted from its earlier decision taken on 10.4.2017, especially when part of it stood implemented in the case of the petitioner, however, this Court is not persuaded to agree with Mr. 15. Though Mr. Bhushan, learned Senior Counsel appearing for the petitioner, vehemently argued that Council of Ministers could not have retracted from its earlier decision taken on 10.4.2017, especially when part of it stood implemented in the case of the petitioner, however, this Court is not persuaded to agree with Mr. Bhushan, for the reason that earlier decision taken by the Cabinet in its meeting held on 10.4.2017, was not based upon Recruitment & Promotion Rules, if any, framed for the promotional post i.e. Joint Registrar as well as Additional Registrar, rather, at the relevant time, Cabinet while rejecting the draft rules for the post of Registrar in the establishment of the Commission decided to grant promotion to the person occupying the post of Assistant Registrar to the post of Joint Registrar after his having completed two years service as Assistant Registrar. Since, subsequently, it transpired that petitioner already stands granted three promotions in the last eight years and there are no Recruitment & Promotion Rules for the post, against which, petitioner is seeking promotion, Council of Ministers though decided to retract from its earlier decision, but permitted the petitioner to avail benefit of higher pay being received by him pursuant to his promotion to the post of Joint Registrar. 16. Though at this stage, Mr. Bhushan, attempted to argue that pursuant to decision taken on 10.4.2017, by the Council of Ministers, a right had accrued in favour of the petitioner for promotion to the post of Additional Registrar after his having served for four years against the post of Joint Registrar, but this Court is not inclined to agree with Mr. Bhushan, for the reason that decision, if any, taken by the Council of Ministers in its meeting held on 10.4.2017, was not based upon any rules or regulations, rather same was taken at the relevant time in the peculiar facts and circumstances to avoid stagnation of the petitioner. Bhushan, for the reason that decision, if any, taken by the Council of Ministers in its meeting held on 10.4.2017, was not based upon any rules or regulations, rather same was taken at the relevant time in the peculiar facts and circumstances to avoid stagnation of the petitioner. Since at the relevant time, there were no Recruitment & Promotion Rules for the promotional post i.e. Joint Registrar as well as Additional Registrar in the establishment of Commission, Council of Ministers otherwise could not have approved proposal submitted by the Administrative Department at the relevant time for the promotion of the petitioner to the post of Joint Registrar, which post was not even proposed to be incorporated in the draft Recruitment & Promotion Rules, prepared for the post of Registrar in the establishment of State Commission. Since decision taken by the Council in its meeting held on 10.4.2017, was purely a discriminatory exercise of power without such right flowing from any Rule, no right can be said to have accrued in favour of the petitioner for promotion to the post of Additional Registrar. 17. True, it is that pursuant to various orders passed by this Court, respondents undertook before this Court to promote the petitioner to the post of Additional Registrar after four years as Joint Registrar, but since such undertaking never came to be given by the Council of Ministers, which was otherwise competent to take decision with regard to approval of Recruitment & Promotion Rules for the post in question, undertaking, if any, given by the Secretary of the Department concerned, may not be of much relevance, especially in the given facts and circumstances of the case. Careful perusal of case file reveals that though respondents by way of filing reply to the petition seriously disputed claim of the petitioner that he was promoted as Joint Registrar against the feeder post as a measure personal to the incumbent without any higher responsibility, however, promotion under FR-20 was given to him. It specifically came to be averred in the reply that as per decision of the government, petitioner has been given three promotions within a period of eight years, which he would have otherwise not got in the absence of decision dated 10.4.2017, taken by the Council of Ministers. It specifically came to be averred in the reply that as per decision of the government, petitioner has been given three promotions within a period of eight years, which he would have otherwise not got in the absence of decision dated 10.4.2017, taken by the Council of Ministers. Subsequently, two compliance affidavits came to be filed by the Additional Chief Secretary (FCS &CA) to the Government of Himachal Pradesh pursuant to orders dated 19.8.2021 and 30.8.2024. 18. Though in compliance affidavit dated 7.9.2021, Additional Chief Secretary (FCS & CA) apprised this court that petitioner has been promoted to the upgraded post of Joint Registrar in the pay scale of Rs.15600-39100+6000 Grade Pay as a personal measure to him vide notification dated 6.1.2017 and he shall be further promoted as Additional Registrar w.e.f. 1.10.2021 on completion of four years service as Joint Registrar. However, subsequently, by way of placing on record personal affidavit, afore officer expressed inability of the Department to promote the petitioner to the higher post on account of decision taken by the Council of Ministers in its meeting held on 20.12.2021, whereby it retracted from its earlier decision taken on 10.4.2017. Again on 16.10.2024, afore officer filed affidavit apprising this Court that pursuant to decision taken by the Council of Ministers on 10.4.2017, petitioner has been granted grade pay of Rs. 7800/- w.e.f. 7.10.2017 on the post of Joint Registrar, but it has retracted from its earlier decision thereby agreeing to make further promotion of the petitioner to the post of Additional Registrar. Since petitioner herein was granted promotion to the post of Joint Registrar after his having completed service of two years against the post of Assistant Registrar, pursuant to decision taken by Council of Ministers in its meeting held on 10.4.2017, undertaking given by Administrative Secretary of the Department concerned, to promote the petitioner to the post of Additional Registrar after his having completed four years service may not be of much consequences on account of subsequent decision taken by the Council of Ministers on 22.12.2021, whereby it retracted from its earlier decision taken on 10.4.2017. Otherwise also, save and except one affidavit dated 7.9.2021, admittedly filed prior to decision taken by the Cabinet in its meeting held on 22.12.2021, whereby it decided to retract from its earlier decision taken on 10.4.2017, no affidavit was ever filed by the Secretary of the Department, thereby undertaking to grant further promotion to the petitioner against the post of Additional Registrar after his having completed four years service against the post of Joint Registrar. At the time of filing affidavit dated 7.9.2021, decision taken by the Cabinet in its meeting held on 10.4.2017, was intact, but since same came to be modified on 22.12.2021, by the Cabinet itself, there was no occasion, if any, for the Secretary of the Administrative Department or an officer of the Department to give undertaking to court that petitioner shall be granted promotion to the post of Additional Registrar. 19. Careful perusal of affidavits dated 27.9.2023, 28.8.2024 and 16.10.2024, if read in conjunction, nowhere reveals undertaking, if any, given on behalf of the officer concerned, rather in all the afore affidavits, this Court came to be apprised that now on account of subsequent decision taken by the Cabinet in its meeting held on 22.12.2021, petitioner cannot be promoted to the post of Additional Registrar. As has been noticed herein above, affidavit dated 7.9.2021, wherein undertaking was given to promote the petitioner to the post of Additional Registrar was filed prior to decision of the Cabinet taken on 22.12.2021, Council of Ministers otherwise cannot be said to be bound by the undertaking, if any, given by administrative head of the Department. It appears that though administrative head of the Department having taken note of the representation filed by the petitioner submitted the matter to Council of Ministers, but same was not accepted and as such, he otherwise could not have passed any orders against the decision of the Cabinet. 20. Though, Mr. Bhushan, to substantiate his submission that department after having given undertaking to the court cannot be permitted to retract from its statement, placed reliance upon judgment rendered by the Hon’ble Apex Court in Civil Appeal No. 4955 of 2022 titled Balwantbhai Sombhai Bhandari v. Hiralal Sombhai Contractor (deceased) Rep. by LRs and Ors. , decided on 6.9.2023 however, having perused afore judgment in its entirety, this court finds no application of the same in the instant case. by LRs and Ors. , decided on 6.9.2023 however, having perused afore judgment in its entirety, this court finds no application of the same in the instant case. There cannot be any quarrel with the proposition of law laid by Hon’ble Apex Court in afore case that willful breach of the assurance in the form of any undertaking given by counsel/advocate on behalf of his client to the court, would amount to civil contempt as defined under Section 2(b) of the Act, but facts of the case at hand are very peculiar, benefit of promotion to the post of Joint Registrar was given to the petitioner pursuant to decision taken by the Cabinet in its meeting held on 10.4.2017. Though in terms of decision of Council of Ministers dated 10.4.2017, petitioner was to be given further promotion to the post of Additional Registrar after his having served against the post of Joint Registrar for four years, but before such claim of the petitioner could be considered, CMM in its meeting held on 22.12.2021, retracted from its earlier decision taken on 10.4.2017. Once the Cabinet, having previously granted the benefit of promotion to the post of Joint Registrar on sympathetic grounds, subsequently decided not to grant further promotion, the undertaking furnished by the Administrative Head, which was not honoured due to the circumstances outlined herein, does not constitute a basis for this Court to infer disobedience on the part of the officer responsible for furnishing such undertaking. 21. Claim for the promotion to the post of Additional Registrar, if any, is based on decision taken by the Cabinet in its decision on 10.4.2017, but once Cabinet itself retracted from its decision in its meeting held on 22.12.2021, petitioner cannot claim further promotion to the post of Additional Registrar on the basis of decision taken in its meeting held on 10.4.2017. Hon’ble Apex Court in Civil Appeal No. 4174-82 of 1995 titled Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors , decided on 25.7.1997, which was pressed into service by Mr. Sanjeev Bhushan, learned Senior counsel for the petitioner, has held that an amendment having retrospective operation, which has the effect of taking away the benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution of India. Sanjeev Bhushan, learned Senior counsel for the petitioner, has held that an amendment having retrospective operation, which has the effect of taking away the benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution of India. However, in the case at hand, as has been taken note herein above, there was otherwise no right of the petitioner to claim promotion to the post of Joint Registrar for the reason that there were no Recruitment & Promotion Rules, in existence, providing promotion of Assistant Registrar to the post of Joint Registrar and thereafter to the post of Additional Registrar. Council of Ministers while refusing to accept the Draft Recruitment & Promotion Rules, taking lenient view and on sympathetic grounds decided to promote the petitioner to the post of Joint Registrar after his having completed two years of service as Assistant Registrar, as a personal measure to him, meaning thereby, in any eventuality, post of Joint Registrar is to abolish after retirement of the petitioner, or otherwise. 22. There is a celebrated legal maxim i.e. “qui potest quodlibet, potest quodlibet inferius” which translates to, he who can do the greater, can do the lesser. In the case at hand, a purely discretionary relief was extended by the Council of Ministers on 10.4.2017 to the petitioner, by exercising power vested in it. Important to note is that such benefit did not flow from any Rule or law rather such benefit originated from discretion exercised by the Council of Ministers, which later on withdrew such benefit. Moreover, petitioner has nowhere laid challenge to decision of the Council of Ministers, withdrawing such benefit. There is another important aspect of the matter. Petitioner has no enforceable cause of action. Petitioner claims promotion to the post of Additional Registrar after four years of service as Joint Registrar, but as on date neither the post of Additional Registrar exists on the establishment of the respondent Commission, nor there are Recruitment and Promotion Rules notified for the said post. Petitioner has no enforceable cause of action. Petitioner claims promotion to the post of Additional Registrar after four years of service as Joint Registrar, but as on date neither the post of Additional Registrar exists on the establishment of the respondent Commission, nor there are Recruitment and Promotion Rules notified for the said post. Had there been a sanctioned post of Joint Registrar and had the Recruitment and Promotion Rules been notified, thereby prescribing Joint Registrar as a feeder cadre with requisite number of years of service as eligibility, it could have been said that petitioner has a legally enforceable right to be considered for promotion, but in the case at hand there is no enforceable cause of action or right in favour of the petitioner. Moreover, this Court can take judicial note of the fact, as is also borne from the record of the petition that the petitioner has got three promotions within eight years and he is seeking further promotion, without there being any sanctioned post in hierarchy or any legal basis for the same. Therefore, the view taken by the respondents in Annexure P-11 (note-474) that since the petitioner has got three promotions within eight years, case needs reconsideration, appears to be genuine. One post after the another cannot be created to compensate an employee for lack of promotional avenues, especially as a measure personal, reason being if on a particular post one incumbent is facing lack of promotional avenues, so would every incumbent, either predecessor or successor and either the Government should permanently create such cadre so every incumbent of such posts gets such benefit or such posts should not be created. It cannot be imagined that one person manning a post will suffer lack of promotional avenues and another will not. 23. Consequently, in view of the above, this court finds no merit in the present petition and as such, same is dismissed devoid of any merit.