M. Katju, J.
1. This writ petition has been filed challenging the impugned Notification dated 26.5.1999 (Annexure-18 to the writ petition) so far as It pertains to respondent Nos. 3 to 9. It has also been prayed that petitioner be considered for promotion as Deputy Excise Commissioner and to quash the Notification dated 17.5.1999.
2. The main submission of the learned counsel for the petitioners is that since the vacancies on the post of Deputy Excise Commissioner had occurred before 17.5.1999, they ought to have been filled up in accordance with the 1983 rules which were applicable before 17.5.1999 when the rules were amended.
3. The petitioners were appointed through the U. P. Public Service Commission. The petitioner No. 1 was appointed as TechnicalOfficer by means of order dated 13.8.1991 vide Annexure-1 to the petition and he started functioning as such. He has been confirmed by order dated 12.5.1995 with effect from 14.10.1993 vide Annexure-3 to the petition. Similarly, the petitioner No. 2 was appointed as Statistical Officer by means of order dated 8.1.1992 vide Annexure-4 to the petition and he was confirmed by order dated 6.8.1997 with effect from 28.2.1994 vide Annexure-6 to the petition. The majority of officers in the Excise Department were initially recruited as Excise Inspectors and were subsequently promoted. The petitioners have alleged that there is no adverse entry against them and their work is fully satisfactory.
4. The State Government framed the U. P. Excise Group 'A' Service Rules, 1983, for recruitment of officers of Group 'A' of Excise Department. True copy of the said Rules, 1983, is Annexure-7 to the petition. These rules were amended from time to time. Two of such amendments are Annexures-8 and 9 to the writ petition. The junior-most category of post in Group 'A' Service is the post of Deputy Excise Commissioner under the 1983 Rules. These posts were to be filled up 100 per cent by way of promotion from the substantively appointed Assistant Excise Commissioners and Technical Officers, who had completed two years of service vide Rule 5 (2) of the 1983 Rules. Under Rule 8 of the 1983 Rules, a Joint Eligibility List was to be prepared by arranging the names of the Assistant Excise Commissioners and Technical Officers in' order of seniority for considering them for promotion. By Notification dated 22.6.1998, Rule 5 of the 1983 Rules was amended and Statistical Officer was also made a post from which promotion to Deputy Excise Commissioner could be made.
5. Under the amended 1983 Rules, promotion to the post of Deputy Excise Commissioner is to be made in terms of the U. P. Government Servant (Criteria for Promotion) Rules, 1984, copy of which is Annexure-10 to the petition. These were amended in 1994 vide Annexure-11 to the petition. Hence, it is argued that petitioners should have been promoted as Deputy Excise Commissioner long back but illegally they were not promoted. In the year 1983, one Sri K.S. Bisaria, Technical Officer was promoted as Deputy Excise Commissioner. After 1983 till date, no promotion of Technical Officer/Statistical Officer was made to the post of Deputy Excise Commissioner and the petitioners are the only two persons holding the said post, who were not considered.
6. In paragraph 24 of the writ petition, it is stated that a Departmental Promotion Committee was scheduled to be held on 19.5.1999 for filling up 12 posts of Deputy Excise Commissioner which came into existence during recruitment years 1997-98 and 1998-99. It appears that the U. P. Excise Officers Sangh opposed the promotion of the Technical Officer/ Statistical Officer and hence they made a representation in September, 1998 to the State Government vide Annexure-12 to the writ petition. The petitioners also made representations vide Annexures-13 to 17 to the writ petition.
7. In paragraph 28 of the petition, it is stated that two days before the meeting of the Departmental Promotion Committee, the State Government issued a Notification dated 17.5.1999 amending Rule 5 of the 1983 Rules and excluding the Technical/Statistical Officers from consideration for promotion as Deputy Excise Commissioner. It is alleged that this was made solely to exclude the present petitioners.
8. In paragraph 30 of the petition, it is alleged that the Departmental Promotion Committee recommended 10 persons by Notification dated 26.5.1999 but two posts have been left vacant. The petitioners' candidatures were not considered in view of the amendment dated 17.5.1999. It is alleged that the Notification dated 17.5.1999 is not retrospective and only prospective and hence, the petitioners should have been considered.
9. Sri K.S. Yadav, Deputy Excise Commissioner on behalf of respondent Nos. 1 and 2 has filed a counter-affidavit. Counter-affidavit has also been filed by Sri Ved Prakash Singh, Deputy Excise Commissioner, who is respondent No. 7 on his own behalf and on behalf of respondent Nos. 4, 6 and 9. We have perused the same.
10. The short point involved in this case therefore, is whether the amendment dated 17.5.1999, will debar the petitioners from promotion as Deputy Excise Commissioner.
11. In the case of Y.V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors., 1983 (3) SCC 284, it was held that vacancies in the promotional post occurring prior to the amendment have to be filled up in accordance with the un-amended rules. Similar view has been taken by the Supreme Court in State of Rajasthan v. R. Dayal, 1997 (10) SCC 419 ; B.L. Gupta v. M.C.D., 1998 (9) SCC 223 ; P. Ganeshwar Rao v. State of Andhra Pradesh. 1988 Supp SCC 740 ; N.T. Devin Kutti and Ors. v. Karnataka Public Service Commission and Ors., 1990 (3) SCC 157 etc.
12. Learned counsel for the respondents has relied on the Supreme Court decision in Dr. K. Ramulu. v. Dr. S. Suryaprakash Rao, JT 1997 (2) SC 80, in which it was held that where the Government had taken a conscious decision not to fill up the existing vacancy until the old rules were amended, It will be new rules which will have to be applied and not the old rules. On the eve of the Departmental Promotion Committee the State Government took a conscious decision not to fill up the existing vacancy of the Deputy Excise Commissioner in accordance with the old rules. In paras 16 and 18 of the counter-affidavit of K.S. Yadav, who has filed affidavit on behalf of the respondent Nos. 1 and 2, it is stated that the State Government has made this amendment when it came to the knowledge of the State Government that the petitioners have had no knowledge or experience of Deputy Excise Commissioner's work and their work and functioning was confined only to the limited field of technical and statistical work of the Excise Department. The same averment has been made under para 18 of the counter-affidavit.
13. In Union of India and Ors. v. M.N. Mathur, 1994 Supp (1) SCC 39, it was held that the rule-making authority is competent to introduce amendment in the rules and that cannot be challenged on the ground of taking away vested rights or legitimate expectations.
14. Following the decision of Supreme Court in the Dr. K. Ramulu's case (supra), this petition is dismissed.