LexHIGH COURT OF DELHI & ANR. versus A.K. MAHAJAN & ORS.
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... .,., [2009] 9 S.C.R. 437 ·~ HiGH COURT OF DELHI & ANR. A v. A.K. MAHAJAN & ORS. (Civil Appeal Nos. 6397-6398 of 2001) MAY 15, 2009 B ....... [TARUN CHATTERJEE AND V.S. SIRPURKAR, JJ.] ,_ Delhi High Court Establishment (Appointment and -?- Conditions of Service) Rules, 1972 - rr. 3 and 7 - Schedule, II - Amendment of, with retrospective effect - Selection to post c of Assistant Registrar to be made by selection on merit from' confirmed officers by rotation - First vacancy to be filled from. Private Secretaries, second and third from amongst ~ Superintendent and Court Master - Candidates already' ~ interviewed not called after retrospective amendment - D .r' Retrospective nature of amendment, challenge to - High Court quashing amendment to the extent of retrospectivity - , Held: When amended Rules affect the benefit already given, then alone such Rules would not be permissible to the extent of retrospectivity - Retrospective effect was given after E consideration of material statistics-imbalance in between three ~ parallel posts of Private Secretaries, Court Masters and " Superintendents - Date fixed was immediately after the last promotion was effected - Promotional opportunities never became crystallized - There was no absolute accrued or F vested right of consideration, which could be affected by retrospective amendments - Therefore, there is no fault with the retrospective aspect - Order of High Court not sustainable , and set aside . .... ~\ By notification dated 7.8.1995, the Delhi High Court G Establishment (Appointment and Conditions of Service) Rules, 1972, Schedule II was amended with effect from 1.07.1973. Rule 7 as amended provided that the selection 437 H 438 SUPREME COURT REPORTS [2009) 9 S.C.R. ~ A to the post of Assistant Registrar could be made by selection on merit from confirmed officers of the categories 5, 6 an_d 7 of class II in Schedule I by rotation. First vacancy in the post of the Assistant Registrar would be filled from Private Secretaries, the second and third B would be filled from amongst Superintendent and Court Master. The last appointment to the post of Assistant ,,. Registrar under the Rules was made on 1.6.1993. ~ Interview of some of the candirlates was already held but were not called after the amendment was made applicable c retrospectively. Some of the employees of High Court of Delhi filed writ petitions challenging the retrospective ·amendment to the Rules. High Court allowed the writ petitions to the extent that only the retrospective effect of the amendment was invalidated. Hence the present appeals. • D ~ Allowing the appeals, the Court HELD: 1. Law regarding the retrospectivity or retroactive operation regarding the Rules of selection is E that where such amended Rules affect the benefit already given, then alone such Rules would not be permissible to the extent of retrospectivity. The judgment of the High ~ Court cannot be concurred with .and is set aside. The Writ _,.>. Petitions are also dismissed. [Paras 23 and 24] [462-B-C] F 2.1. High Court obs~rved that the ·benefit of consideration, which was available to the writ petitioner no. 8 prior to the retrospective amendment of the Rules, was not available to him after the amendment of the G Rules. This is an.incorrect notion. There can be no benefit F of consideration. To be considered is a right of employee but merely being considered, in itself, is not a benefit as it may or may not result in the selection or promotion of an employee and hence it is in the nature of a chance. A mere chance of promotion being affected by amendment H HIGH COURT OF DELHI & ANR. v. AK. MAHAJAN & 439 ORS. -<~. is inconsequential. This Court has time and again held A that since promotion is not a right of the employee, a mere chance of promotion if affected cannot and does not invalidate the action on the part of employer. [Para 11] [452-F-H; 453-A] 2.2. The right of consideration may accrue at a B particular point of time or subsequently thereto. Merely .. because at a particular· point of time the employee is not .. ~ considered, does not mean the total denial of the consideration of the employee. In the instant case, it is c not as if writ petitioner no. 8 was altogether denied the benefit of consideration for ever. He was undoubtedly considered later on and was promoted also. Therefore, ·it is incorrect to say that the a
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