Rajasthan High Court - Jaipur
R. Dayal And Ors. vs State Of Rajasthan And Ors. on 30 August, 1996
Equivalent citations: 1996(3)WLC513, 1996(2)WLN35
JUDGMENT M.P. Singh, J.
1. The service condition of Engineers in Rajasthan is governed by the Rajasthan Service of Engineers (Building & Roads Branch), Rules, 1954. It was amended from time to time. The last amendment was made on 24th of July, 1995. The effect and scope of this amendment was considered by a Division Bench of this Court in D.B. Civil Special Appeal No. 416/95 (State of Rajasthan and Ors. v. Rambabu Gupta and Ors.), connected with Special Appeals No. 436/94 and 833/94, decided on 29.8.1995. Another Division Bench, of which one of us was a Member, was not inclined to agree with the view taken in that case. In order to resolve controversy, the matter has been referred to this Full Bench.
2. The main issue to be considered is whether the appointments for the year 1995-96 will be made under the amended Rules, which had come into force on the date of the appointment or it will be made under the unamended Rules.
3. Regarding enforcement of the amendment, the notification reads as follows:
1. (i)...
(ii) They shall be deemed to have come into force with immediate effect.
(iii) In column numbers 2 and 4 against serial No. 2 after the words "Addl. Chief Engineer" and "Superintending Engineers" the expression "(Civil)" shall be added and in column No. 5 the following new entry shall be inserted:
Must hold a degree in Engineering (civil) of a University established by law in India or qualification declared equivalent thereto by Government with 5 years service as Superintending Engineer (Civil)
4. Petitioners are Superintending Engineers in Public Works Department. They have challenged appointments of the respondents No. 2 and 3 as Additional Chief Engineers on the ground that they did not possess the five years requisite experience as Superintending Engineer on the date of their appointments as Additional Chief Engineer. The prayer made in the writ petition is for quashing of their appointments and the State Government may be directed to make fresh appointments to the posts of Additional Chief Engineer in accordance with amendments made in the Rules.
5. The respondent No. 2 was appointed as Superientending Engineer on 15.10.1990 and the respondent No. 3 on 17.1.1994. They were promoted to the posts of Additional Chief Engineer on 29.7.1995 and 6.9.1995, respectively. These appointments were made on the basis of the recommendations made by the Departmental Promotion Committee held on 13th April, 1995.
6. In order to appreciate the controversy, the relevant facts are placed below in tabular form:
________________________________________________________________________________ Names Date of Date of Date of Date of Joining as Departmental Amendment. Appointment as Supdt. Promotion Addl. Chief Engineers. Committee Engineer.
________________________________________________________________________________ V.S. Bhatnagar 15.10.90 13.4.1995 24.7.1995 29.7.1995 (Respondent-2) H.L. Meena 17.01.94 13.4.1995 24.7.1995 06.9.1995 (Respondent-3) ________________________________________________________________________________
7. The State Government justifying the appointments, took a stand stating that when these respondents were appointed, there was no provision in the Rules for experience for further promotion. The appointments were to be made on the basis of seniority-cum-merit on the recommendation of Departmental Promotion Committee held on 13.4.1995. On the date when the Departmental Promotion Committee met, the amendment had not come into force. Amended Rules would apply for the year 1996-97 and not for 1995-96. The eligiblity criteria was to be considered on the date when the Departmental Promotion Committee met to consider the case of promotion to the post of Additional Chief Engineers.
8. The respondent No. 2 has not filed any reply, in spite of service.
9. Respondent No. 3, H.L. Meena, has contested the petition mainly on the ground of alternative remedy of approaching the Service Tribunal. He has also challenged the locus standi of the petitioners. On merit, it was stated that he has been promoted as Additional Chief Engineer against the vacancies reserved for Scheduled Tribe, as per hundred Percent Roster System without having five years experience to his credit in the cadre of Superintending Engineer. The vacancies were determined on 1st April, 1995 and a list of eligible persons was prepared as contemplated under Rule 24-A (9) of the Rules. Their candidature was considered by the Committee constituted under Rule 24(2) (a) read with Rule 24-A (11) (a) and 11-A of the Scheme of the Rules, keeping in view the criteria and procedure for promotion as was applicable in the particular year to which the vacancy relates.
10. The vacancies against the quota of 1995-96 were determined on 1.4.1995 and the Departmental Promotion Committee met on 13.4.1995 recommending the names for promotion. The recommendation made by the Departmental Promotion Committee was approved by the Government. After its due approval in accordance to Rule 13 of the Rules by the appointing authority, appointment orders were passed.
11. The main thrust of his defence is that the amendment dated 24.7.1995 will be applicable only for the vacancies which will be determined for the year 1996-97 and not for the vacancies already determined for the year 1995-96. Since the vacancies which were determined as on 1.4.1995 for the year 1995-96, the criteria and procedure as applicable on 1.4.1995 can only be looked into. Any amendment made later will not change the criteria, procedure any eligibility of the incumbent which the Departmental Promotion Committee had to examine as on 1st April of the year of determination of the vacancy. The recommendation of the Departmental Promotion Committee dated 13.4.95 has already been approved by the Government. It has rightly been acted upon and the appointment orders have been issued in accordance to the Rules. Any amendment made after approval of the list by the Government will not affect the approval already made.
12. The preliminary objection regarding the maintainability of the writ petition raised by the respondent No. 3 has no merit. Suffice it to say that we are satisfied from the facts of the case that the petitioners and other persons are interested in the appointments made by the Government are in accordance with the law. Only those persons can be appointed to the relevant posts to which they are eligible in accordance with the Rules. Throwing out the petition on the ground of alternative remedy would not serve the interest of justice. If the Government has passed an order, wholly without jurisdiction, it can be interfered under Article 226 of the Constitution of India. The objections accordingly stand rejected.
13. Before proceeding to examine the rival contentions, the scheme of the Rules may be examined. Rule 4(1) defines "The year" as "financial year". The composition and strength of service is done in accordance with Rule 6, which provides that the nature of the posts included in each category of service, shall be as specified in column 2 of Schedule I. The strength of the post in each category shall, be such as may be determined by the Government from time to time.
14. The method of recruitment is controlled by Rule 7, according to which the recruitment of the service can be done either (a) by direct recruitment as per Part TV of these Rules; and (b) by promotion of substantive engineers in accordance with Part V of the Rules.
15. In the instant case, the promotion to the post of Additional Chief Engineer is to be made hundred percent by promotion as contained in Part V.
16. Rule 9 deals with the determination of vacancies, which runs as under:
(1) (a) subject to the provisions of these rules, the appointing authority shall determine on 1st April every year, the actual number of vacancies occurring during the financial year.
(b) Where a post is to be filled in by a single method as prescribed in the rule or schedule, the vacancies so determined shall be filled in by that method.
(c) Where a post is to be filled in by more than one method as prescribed in the rules or schedule, the appointment of vacancies determined under Clause (a) above, to each such method shall be done maintaining the prescribed proportion for the over all number of posts already filled in. If any fraction of vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cyclic order giving precedence to the promotion quota.
(2) The Appointing Authority shall also determine the vacancies of earlier years year wise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they required to be filled in.
17. Rule 12 provides for technical qualifications. The candidates for direct recruitment to the post specified in Schedule I are required to possess the qualification and experience laid down in Column 6 of the said Schedule. But, for making promotion to the higher post, there as no provision fixing any qualification or experience eligibility.
18. Rule 23 deals with the Criteria for selection, which runs as follows:
The persons enumerated in Column 4 of Schedule I, shall be eligible, on the basis of Seniority-cum-merit, for promotion to posts specified in Column 2 subject to their possessing the minimum qualifications and experience, on the first day of the month of April of the year of selection specified in Column 5.
19. Rule 23-A imposes a condition that no officer shall be considered for promotion unless he has been substantively appointed and confirmed on the next lower post. The effect of this Rule would be that only confirmed Superientending Engineers would be considered for promotion to the post of Additional Chief Engineers.
20. The procedure for selection is contained in Rule 24, as:
(1) As soon as it is decided that recruitment to a certain number of post in the service shall be made by promotion, the Chief Engineer, Public Works Department, (Building & Roads) shall prepare a correct and complete list containing names not exceeding five times the number of vacancies, out of the senior most substantive Junior Engineers who are qualified under the Rules for promotion to the class of posts concerned. He shall forward this list alongwith their confidential rolls and personal files to the secretary to Government in the Public Works Department.
(2)(a)-A Committee consisting of the Chairman of the Commission or when the Chairman is unable to attend, any other member thereof nominated by him, the Secretary to Government in the Public Works Department, (or the Special Secretary concerned nominated by him), the Special Secretary to Government in the Department of Personnel, or his representative not below the rank of a Deputy Secretary and the Chief Engineer, Public Works Department (Building & Roads) as Member Secretary shall consider the cases of all persons included in the list, interviewing such of them may deem necessary and shall prepare a list containing names of suitable candidates upto twice the number of such posts as are indicated in Sub-rule (1).
(b) The Chairman or the Member of the Commission shall preside all meetings of the Committee at which he is present.
(3) The Committee shall prepare a separate list containing the names of persons who may be selected to fill officiating vacancies already existing or are likely to occur till the next meeting of the Committee-
(a)the list so prepared shall be reviewed and revised every year;
(b) the list shall ordinarily be in force until it is reviewed or revised in accordance with Clause (a) of Sub-rule (3).
(4) ...
(5) The names of the candidates selected as suitable, shall be arranged in the order of seniority.
(6) The list prepared by the Committee shall be sent to the Government together with the confidential rolls and personal files of the candidates included in them as also of those superseded, if any.
(7) Where consultation with the Commission is necessary, the list prepared accordance with Sub-rules (2) and (3) shall be forwarded to the Commission by the Government alongwith (a) confidential rolls and personal files of all the officers whose names are included in the list; (b) the confidential rolls and personal files of all officers who are proposed to be superseded by the recommendations made by the Committee.
(8)...
21. Rule 24-A--"Revised Criteria, Eligibility and procedure for Promotion to Junior, Senior and other posts encadred in the service:
(1) As soon as the Appointing Authority determines the number of vacancies under rule regarding determination of vacancies of these rules and decides that a certain number of posts are required to be filled in by promotion, it shall, subject to provisions of Sub-rule (9) prepare a correct and complete list of the senior most persons who are eligible and qualified under these rules for promotion on the basis of seniority -cum-merit or on the basis of merit to the class of posts concerned.
(2) The person enumerated in Column 5 or the relevant Column regarding "posts from which promotion is to be made", as the case may be of the relevant Schedule shall be eligible for promotion to posts specified against them in Column 2 thereof to the extent indicated in Column 3 subject to their possessing minimum qualifications and experience on the first day of the month of April of the year of selection as specified in Column 6 or in the relevant Column regarding "minimum qualification and experience for promotion", as the case may be.
Provided that in case any Member or Member-Secretary, as the case may be, constituting the Committee has not been appointed to the post concerned, the officer holding charge of the post for the time being shall be the Member of Member- Secretary, as the case may be, of the Committee."
(3) No person shall be considered for first promotion in the Service unless he is substantively appointed and confirmed on the lowest post in the Service. After first promotion in the service, for subsequent promotions to higher posts in the service, a person shall be eligible if he has been appointed to such post from which promotion is to be made after selection in accordance with one of the methods of recruitment under any Service Rules promulgated under proviso to Article 309 of the Constitution of India.
Provided that for first promotion in the Service if number of persons substantively appointed and confirmed, equal to the number of vacancies, are not available then persons who have been appointed to the lowest post in the Service after selection in accordance with one of the methods of recruitment prescribed under these rules, shall also be eligible if they fulfill other conditions of eligibility."
(4)...
(5)...
(6)...
(7)...
(8)...
(9)...
(10)...
(11)(a) The Committee shall consider the cases of all the senior most persons who are eligible and qualified for promotion to the class of posts concerned under these rules and shall prepare a list containing names of the persons found suitable on the basis of seniority-cum-merit and/or on the basis of merit, as the case may be, as per the criteria for promotion laid down in these rules, equal to the number of vacancies determined under rule relating to "Determination of vacancies", of these Rules. The list so prepared on the basis of merit, as the case may be, shall be arranged in the order of seniority on the category of posts from which selection is made.
(b) The Committee shall also prepare a separate list on the basis of seniority-cum-merit and/or on the basis of merit, as the case may be, as per the criteria for promotion laid down in the rules, containing names of persons equal to the number of persons selected in the list prepared under (a) above, to fill temporary or permanent vacancies, which may occur subsequently. The list so prepared on the basis of seniority-cum-merit and/or on the basis of merit shall be arranged in the order of the seniority in the category of posts from which selection shall be made. Such a list shall be reviewed and revised by the Departmental Promotion Committee that meets force till the end of the last day of the next year or till the Departmental Promotion Committee meets, whichever is earlier. Such lists shall be sent to the Appointing Authority together with annual confidential Reports/Annual Performance Appraisal Reports and other service Record of all the candidates included in the lists as also of those not selected, if any."
(11-A)--If in any subsequent year, after promulgation of these rules, vacancies relating to any earlier year are determined under Sub-rule (2) of rule relating to determination of vacancies which were required to be filled by promotion, the Departmental Promotion Committee shall consider the cases of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Departmental Promotion Committee is held and such promotions shall be governed by the criteria and procedure for promotion as was applicable in the particular year to which the vacancies relate, and the service/experience of an incumbent who has been so promoted, for promotion to higher post for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. The pay of a person who has been so promoted shall be re-fixed at the pay which he would have derived at the time of his promotion but no arrears of pay shall be allowed to him."
(11-B)--The Government or the Appointing Authority may order for the review of the proceedings of the D.P.C. held earlier on account of some mistake or error apparent on the face of record, or on account of a factual error substantially affecting the decision of the DP. C. or for any other sufficient reason e.g. change in seniority, wrong determination of vacancies, judgment/direction of any Court or Tribunal, or where adverse entries in the confidential reports of an individual are expunged or toned down or a punishment inflicted on him is set aside or reduced. The concurrence of the Department of Personnel and the Commission (where Commission is associated) shall always be obtained before holding the meeting of the review D.P.C.
22. Thus, according to the Scheme of Rules, on 1st April of every year on determination of the actual number of vacancies, the persons enumerated in Column 4 of Schedule I shall be eligible for promotion on the basis of seniority-cum-merit to the post specified in Column 2 subject to their possessing minimum qualification and experience.
23. After the decision is taken for filling certain number of posts in service by promotion, the Chief Engineer, Public Works Department (Building & Roads) shall prepare a complete list containing the names not exceeding five times the number of vacancies, out of the seniority list consisting of substantively appointed Engineers who are qualified under the Rules to be promoted to the class of posts concerned. The Chief Engineer then forward that list along with their confidential rolls and personal files to the Secretary of the Public Works Department of Government.
24. Then a Committee consisting of the Chairman of the Commission or its nominee, the Secretary or Special Secretary or his representative, and the Chief Engineer, Public Works Department, shall consider, on the direction of the Government, the cases of all the persons included in the list prepared by the Chief Engineer. This committee shall then prepare a list containing the names of suitable candidates upto twice to the number of the vacancies. The candidates whose names appear in this list, if found suitable by the Committee shall be arranged in order of seniority. Then the list so prepared shall be sent to the Government together with their confidential rolls and personal files of the candidates included therein as well as also of those who have been superseded, if any.
25. In case the consultation with the Commission is necessary then the list so prepared shall be forwarded to the Commission by the Government alongwith the confidential rolls and personal files of confidential rolls and personal files of all the officers who are proposed to be superseded by the Committee will also be sent.
26. The Commission on the receipt of the record shall consider the list prepared by the Committee and examine the record of each candidate. Thereafter it shall approve the list. If it considers necessary to make changes in the list received from the Government it shall inform the Government of the changes proposed.
27. The Government, after taking into account the comments of the Commission, if any, may approve the list finally with such modification as in its opinion be just and proper. In normal course, once the Government approves the list, the appointments are to be made out of it in accordance with the seniority-cum- merit. But, in view of Rule 24-A (Sub-rule 11-B) which was incorporated in the Rules vide notification No. F. 7 (I)/DOP/A- 2/87, dated 14.6.1988, the Government is empowered for the review of the proceedings of the Departmental Promotion Committee held earlier on the ground of some mistake or error apparent on the face of the record or for any other reasons which has substantially affected the decision of the Departmental Promotion Committee. Thus, the approval granted earlier loses all its importance in such cases.
28. Sub-rule (11-B)--which has mentioned the ground for review is only illustrative or enumerative but in no way it can be said to be exhaustive. The Government has, in a way, a strong in-built power to review the decision of the Departmental Promotion Committee for sufficient reasons which, of course, should meet the test of reasonableness, not touching the field of arbitrariness. If the appointing authority is satisfied that the recommendation made by the Departmental Promotion Committee is correct and there is no occasion for reviewing the same, it may proceed with the appointments on the basis of the list already approved by it otherwise it can ask the Departmental Promotion Committee to review the recommendations.
29. The relevant Schedule I which stood prior to amendment is as follows:
SCHEDULE-I ________________________________________________________________________________ S. Post Method Post Remarks No. of Rec- from ruitment which with selection percen- is to be tage made ________________________________________________________________________________
1. Senior 100% Addl.
Posts-- by Chief
Chief Promotion Engineer
Engineer
2. Addl. 100% Superinte NOTE--If the post of Addl.
Chief by nding Chief Engineer is
Engineer promotion Engineer abolished or the number
of Additional Chief
Engineers Is not
sufficient for promotion
to the posts of Chief
Engineer is either
contingency, the Suptd.
Engineers may be
considered for promotion
to the posts of Chief
Engineers.
AMENDMENT MADE ON 24TH JULY, 1995;
________________________________________________________________________________ "2-A Addl. 100% Superinte Must hold a degree in Chief by nding Engineering of a Engineer Promotion Engineer University established by law in India or qualification declared equivalent thereto by Govt. with 5 years service as Supdt.
Engineer.
________________________________________________________________________________
30. The Effect of the amendment would that after 24th July, 1995 no Superintending Engineer would be eligible for appointment by promotion to the post of Additional Chief Engineer unless he has five years of service experience as Superintending Engineer. The amendment in Schedule-I had come in force on 24th July, 1995, the validity of the same has not been challenged so far. So, this eligibility criteria is to be fulfilled on the date of the appointment.
31. Admittedly, the vacancies were determined on 1.4.1995. The Departmental Promotion Committee met on 13.4.1995. The respondents on the basis of seniority-cum-merit, were recommended for appointment by promotion on the post of Additional Chief Engineer. Thereafter the Rules were amended on 24.7.95 changing the eligibility criteria by fixing five years experience as Superintending Engineers. These rules came into force immediately. The Government proceeded to appoint the respondents No. 2 and 3, after the amendment made in the Rules, on the basis of unamended Rules. Question is whether could it be done ? Much emphasis has been laid by the respondents that since the Government has already approved the list, which attained finality, the Government had no option but to appoint the respondents in accordance with the unamended Rules which did not prescribe any experience for appointment.
32. Relying on the decision of this Court in the case of Ram Babu Gupta v. State of Rajasthan (supra), it was contended on behalf of the respondents that after the Departmental Promotion Committee recommended the names and the Government approved the list, the persons mentioned in the list acquired a vested right of appointment to the post of Additional Chief Engineer. We do not find any merit in the submission. On 13.4.1995 when the Departmental Promotion Committee met and recommendations were made for appointment of the respondents No. 2 and 3, it was perfectly correct. According to the then existing Rules they were eligible to be appointed as Additional Chief Engineer but on the date when the actual appointments were made by the Government the amendment had come into force. Then the Government could not have proceeded with the appointments on the basis of that recommendation. It should have rejected the recommendations outright and would have asked for the review by the Departmental Promotion Committee, to reconsider the matter in view of the amendment which prescribed five years experience as Superintending Engineer.
33. The settled principle of service jurisprudence is that no person possesses any vested right for appointment to a public post. He only possesses a right to be considered for appointment, provided he fulfils and possesses the requisite eligibility and suitability on the date of the appointment. If, by amendment, the Rule Making Authority, in its wisdom, has prescribed five years experience on the feeder post as a condition of eligibility for promotion to the post of Additional Chief Engineer then no appointment can be made ignoring the amended Rules.
34. Shri Ajay Rastogi, referring to the provisions of Rules 6(2),(a) 9, 23(1) 24A, 24(1), 24(13) and 24(14), contended that since the selection process had started on the basis of the vacancies determined under Rule 9 on April 1, 1995 the criteria, eligibility, qualifications and experience are to be seen as on that date. Irrespective of amendment dated 24.7.1995 the respondents were eligible for promotion. We do not find any merit in the submission. The amendment came into force on 24.7.1995. It was prospective in nature and has to be given effect to any appointment made after 24.7.1995 and as such the vacancy for the year 1995-96 should have been filled in as per amendment so made. Thus, the appointment of the respondents which was made after the amendment ignoring the eligibility criteria was wholly illegal. This amendment, thus, would be applicable for the vacancies which were determined for the year 1995-96.
35. The vested right as explained in Law Lexicon is "A right is said to be vested when the right to enjoyment, present or prospective has become the property of some person or persons as a personal interest, independent of a contingency that it is a right which cannot be taken away without the consent of the persons concerned. Vested right can arise from contract, from statute or by operation of law."
36. These respondents might had the vested right of consideration for promotion to the post of Additional Chief Engineer by virtue of their being Superintending Engineer but definitely they did not have any vested right of appointment. This point was considered by the Supreme Court in the case (State of M.P. v. Raghuveer Singh). In that case the Government invited applications for the post of Inspectors. The eligibility qualification prescribed was degree in Art, Commerce, Science, Engineering or Diploma in Engineering. After the examinations were over and results were declared, successful candidates were invited for interview. In the meanwhile the Government amended the Rules and altered the qualification for eligibility to the post. After the amendment the Government recalled the said notification and steps were taken for recruitment in accordance to the amended Rules. This action of the Government was challenged. The Supreme Court rejecting the plea of the candidates held that the candidates who had appeared for the examination, passed the written examination, could only have a legitimate expectations for consideration for selection according to the Rules then in force. The amended Rules were prospective in operation. The Government had every right to have fresh selection under the amended Rules. No candidate acquired any vested right against the State, even if he qualified in the examinations before the Rules were amended.
37. The Supreme Court in the case of Jitendra Prasad v. State of Punjab (1995) 1 SCC 122 expressed the view that the Public Service Commission is only a recommendatory body. The Government may or may not accept the same but if it chooses not to accept the same it may record its own reasons but not to be communicated. Similar views have been expressed in the case of Dr. H. Mukherjee v. Union of India (1994) Suppl. 1 SCC 250, wherein it was held that the function of the Public Service Commission was only advisory in nature. The Government may or may not accept the same. But, in case it does not accept, it has to meet the test of reasonableness and action was not held to be arbitrary or malafide. Other cases on the point are reported in (1995) Suppl. 1 SCC 1 (Union of India v. D.P. Dhamania) and ( N.T. Devin Katti v. Karnataka Public Service Commission).
38. Another question which needs to be considered is whether a person has any vested right of appointment on the basis of the recommendations made by the Departmental Promotion Committee ? Will the Government shut its eyes and not look into the error committed by the Departmental Promotion Committee ? Will the Government only act as a rubber stamp and put its seal on the recommendations made by the Departmental Promotion Committee even after amendment ? The simple answer would be 'NO'. The Government has every power not to accept the recommendation of the Departmental Promotion Committee. Even if the Government had earlier approved the list prepared by the Departmental Promotion Committee, that does not debar it from reconsidering, in view of the amended Rules. The Departmental Promotion Committee only makes recommendation of eligible candidates.
39. It is not open to the respondents to contend that if once the Government decided to accept the recommendation of the Departmental Promotion Committee, it cannot be asked to send the matter again to that Committee for review in accordance with the amended Rules. In our considered opinion, the Government is left with no discretion but to exercise the power in accordance with the law. The matter should have been referred back to Departmental Promotion Committee for making fresh recommendation in accordance with the amendment.
40. The vacancies relate to the year 1995-96. According to the unamended Rules, Superintending Engineers even of one day's experience on the date of declaration of vacancy or on the date of the meeting of the Departmental Promotion Committee could be considered for appointment as Additional Chief Engineer. But, after the amendment, the position has changed. Unless, he has put in five years of experience Superintending Engineer he would not be considered for promotion to the post of Additional Chief Engineer. This condition had to be fulfilled by the incumbent on the date of the appointment as amendment had already come before that date.
41. In the case of Ram Babu Gupta (supra) while interpreting this amendment, the Division Bench of this Court was of the view that it did not affect the vested right of the persons who had already been promoted or selected by the Departmental Promotion Committee against the vacancies of the year 1995-96. The decision of the Committee could not be reviewed on the ground of amendment which would be applicable only for the vacancies to be determined for the year 1996-97. With due respect, we do not agree with the view expressed. When the Departmental Promotion Committee meets to consider the question of promotion, it only prepares the list of eligible candidates and sends it to the appointing authority. It is not the Departmental Promotion Committee which appoints a person. It only selects a person out of the many eligible candidates for appointment to be made by the appointing authority. It is only a recommendatory body.
42. The word "selection" has been shown in Oxford Dictionary to mean "Chosen for excellence or suitability, choice, picked, got by rejection or exclusion or what is inferior". Whereas the word "appointment" has a reference to assign office. It is done only by appointing authority and no body else. If the relevant Rules were amended after the Departmental Promotion Committee recommended for appointment then it was mandatory on the part of the appointing authority to have looked into the amendment and then to have proceeded further by asking for a review by the Departmental Promotion Committee.
43. It was the Government which issued the notification dated 24.7.95. It being the appointing authority was under obligation to examine whether in view of amended Rules the respondents No. 2 and 3 possessed the requisite experience on that date, or not. We are of the view that it was the duty of the appointing authority to have acted strictly in accordance with the amended Rules, for making appointments on the post of Additional Chief Engineer. This leads to irresistible conclusion that the appointments of the respondents No. 2 and 3 were not made in accordance to Rules and are thus illegal.
44. For reasons given above the decision of the Division Bench in the case of Ram Babu Gupta (supra), is accordingly reversed.
45. On behalf of the respondents reliance was placed on a judgment of the Supreme Court (P. Mahendran v. State of Karnataka) in which while considering the scope of amendment of the Rules of 1987, it was observed that such an amendments are always prospective unless provided otherwise. The amendment was making change in the eligibility criteria for selection and appointments to the posts of Motor Vehicles Inspector. The Court expressed the view that since the process of selection had already started, the selection has to be completed, if the applicants possessed the requisite qualification in accordance with the advertisement. The amendment could not affect the existing right of those candidates who were being considered for selection. But, the ratio of this judgment would not be applicable to the facts of the present case. In this case, the scope of the recommendation made by the Departmental Promotion Committee is to be examined. Rule 24-A (11-B) makes specific provision empowering the Government or the appointing authority to review the proceedings of the Departmental Promotion Committee held earlier, on account of some error apparent on the face of the record or for any other reason. The Government has erred in not exercising the powers conferred under the said provision resulting in passing illegal orders. No such specific Rules was contained in the Rules which were applicable in the case of P. Mahendran (supra).
46. Apart from this, in that case it was also held that the candidate does not get any right merely by making an application for the same. Only a right is created in his favour for being considered on the post as per terms and conditions of the advertisement and existing Rules. But the Court in that case had not gone to the extent saying that the candidates had any vested right of appointment. The latter judgment of the Supreme Court, in the case of Raghuveer Singh Yadav (supra), which actually covers the field of controversy, in our opinion, renders the ratio of the judgment in the case of P. Mahendran (supra) inapplicable to the facts of the present case. In that case the question of vested right has not at all been considered whereas the Supreme Court in the case of Jitendra Prasad and Dr. H. Mukherjee (supra) has elaborately dealt with. We follow the law laid down in these two cases.
47. Accordingly, for the reasons given above, the writ petition succeeds and is allowed. The orders of appointment of respondents No. 2 and 3 dated 29.7.95 and 6.9.95 respectively, are hereby quashed.
48. The Government is directed to issue instructions immediately to the Departmental Promotion Committee to reconsider the matter within a period of one month in accordance with this judgment and to make fresh recommendation to it. The recommendations will be made by the Departmental Promotion Committee for the relevant year 1995-96 in accordance with the amendment made in the Rules. After it prepares a fresh list in accordance with the seniority-cum-merit, the Government will pass fresh orders of appointment within one month thereafter.