Judgment:
Pradeep Nandrajog, J.
1. The appeal is directed against the judgment and order dated 23.3.1999 dismissing WP(C) No. 3607/1990 filed by the appellant against Life Insurance Corporation of India (LIC).
2. The prayers made in the writ petition are as under:
(i) to direct the respondent to consider the case of the petitioner for the purposes of promotion to the post of Higher Grade Assistant (Artist) and promote him to the same post retrospectively from the date when he become eligible to be considered for promotion with all consequential benefits as in 1975- 1976;
(ii) to declare the illegal action of the respondents in deleting the category of the Higher Grade Assistant (Artist) from the New Rules of 1987 as totally arbitrary, illegal and discriminatory and violative of the fundamental rights of the petitioner as enshrined in the Articles 14 and 16 of the Constitution of India; and
(iii) grant any other relief, order/direction as this Hon'ble Court may deem fit in the circumstance of the case.
3. A pen profile of the service rendered by the appellant under LIC at the time when the writ petition was filed may be sketched.
4. The appellant joined LIC as an Assistant and while in service, enhanced his professional and technical qualifications by obtaining a Diploma in Art from All India Council of Technical Education.
5. In view of the creative skill acquired by the appellant, LIC posted him in its publicity department and assigned jobs of designing house magazines, posters, illustrations etc.
6. On 21.2.1974, the appellant made a representation to the Managing Director LIC, praying that he may be promoted to the post of Higher Grade Assistant (Artist). On 7.4.1974, the appellant was informed that he could not be promoted except in his cadre and as per rules.
7. On 15.3.1976, LIC issued the promotion regulations and listed various posts in the schedule thereof. One post of Higher Grade Assistant (Artist) was created with the eligibility condition that Artists with 5 years' service would be eligible for promotion to the said post.
8. Hoping to get the benefit of the Promotion Regulations, on 13.10.1976, the appellant made a representation praying that he may now be promoted as a Higher Grade Assistant (Artist), since for the last 8 years he was working as an Artist.
9. At the level of the Division, various officers recommended the case of the appellant to be promoted, but at the higher level, the claim was turned down on the ground that the appointment of the appellant was to the post of Assistant and his promotion had to be in the cadre to the next higher post i.e. of Higher Grade Assistant and no more.
10. The appellant then took up the issue requiring him to be designated as an Artist. The post held by the petitioner was not re-designated, but vide letter dated 6.5.1982, the Sr. Divisional Manager LIC, informed the appellant, that in future he would be referred to as an Artist.
11. On 25.9.1987, the Ministry of Finance (Department of Economic Affairs) issued LIC Employees' Promotional Rules 1987, in which, no post of Higher Grade Assistant (Artist) was notified.
12. The appellant made representation to be promoted as Higher Grade Assistant (Artist) which was turned down on the ground that no such post existed. It was informed to the appellant that being appointed as an Assistant, he would be considered for promotion to the post of Higher Grade Assistant and no more.
13. The writ petition was filed in the year 1990 praying as aforesaid.
14. Before noting the contentions urged by the appellant, it may be noted that in the grade of Assistant, falling in the zone of consideration, candidature of the appellant was considered, and he was empanelled to be promoted as a Higher Grade Assistant in the year 1989, but he did not do so. He insisted for being promoted as Higher Grade Assistant (Artist), which post as per the 1987 Rules did not exist.
15. The learned Single Judge has negated the pleas urged by the appellant, holding that there being a cadre under LIC, none can claim promotion outside the cadre de-hors the Regulations. The learned Single Judge has held, that being appointed as an Assistant, the appellant remained in the cadre of Assistant and was never officially appointed as an Artist. Merely because he was assigned the work given to an Artist did not mean that the appellant held the substantive post of an Artist and thus the appellant could not lay a claim for promotion to the post of Higher Grade Assistant (Artist).
16. The second reason given by the learned Single Judge is that, with the promulgation of the notification on 25.9.1987, promotions had to be strictly in terms of the LIC Employees' Promotion Rules 1987. Noting that the said Rules were not challenged, it has been held that there being no post of Higher Grade Assistant (Artist) under the Rules, the appellant could claim no right to promotion to said post.
17. The alternative plea that the appellant who was made to function as an Artist and in respect whereof various officers wrote letters recommending that the appellant be promoted as an Higher Grade Assistant (Artist) gave rise to a legitimate expectation in the mind of the appellant and thus on the principle of legitimate expectation he should be promoted as a Higher Grade Assistant (Artist) has been rejected. It has been held that the principle of legitimate expectation could not be applied in the facts of the instant case.
18. The pleas which were urged before the learned Single Judge were reiterated during arguments in the appeal.
19. We find no merit in either submission urged by learned Counsel for the appellant.
20. It is not in dispute that the appellant was appointed as an Assistant and the post of an Assistant is a cadre post, with the promotional post being that of Higher Grade Assistant. It is no doubt true that the appellant was assigned the work of an Artist, but at no stage was he given the substantive appointment to the post of an Artist.
21. That apart, when the writ petition was filed in the year 1990, the LIC Employees' Promotional Rules 1987 were promulgated and the various posts were notified in the schedule to the Rules. No post of Higher Grade Assistant (Artist) was notified as a post under LIC. Having not challenged the Rules of 1987, we see no scope to grant any relief to the appellant.
22. We are surprised at the conduct of the appellant who got promoted to the post of Higher Grade Assistant in the year 1989 and for all purposes and intent i.e. salary and other benefits, got what he would have otherwise got on being promoted as a Higher Grade Assistant (Artist), but he refused to do so.
23. On the issue of legitimate expectation, the appellant claims that the foundation of his legitimate expectation are the various letters written by the superior officers recommending that the appellant should be posted as an Artist and thereafter promoted as a Higher Grade Assistant (Artist).
24. Mere recommendatory letters by junior level officers have no meaning. If the Competent Authority had given any such assurance and on the basis thereof the appellant had acted to his detriment, we could have appreciated the submission. That apart, no right can be enforced on the principle of legitimate expectation which would run contrary to the notified Rules. As noted above, the notified rules in the year 1987 did not have any post of Higher Grade Assistant (Artist).
25. It is settled law that creation of a post lies exclusively in the domain of the Executive and no mandamus can be issued by any Court to the Executive to create a post. (See the decision reported as : 2008 (1) SCC 318 Balakrishna Behara and Anr. v. Satyaprakash Dash.)
26. We may lodge a caveat, the issue of creating supernumerary post is an entirely different issue.
27. The appeal is accordingly dismissed.
28. No costs.