Pradeep And 2 Others vs State Of U.P. And 2 Others on 14 February, 2019

[Cites 17, Cited by 0]

Allahabad High Court

Pradeep And 2 Others vs State Of U.P. And 2 Others on 14 February, 2019

Bench: Yashwant Varma





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 06.02.2019
 
      					Delivered on   14.02.2019                  
 
Court No. - 6
 

 
Case :- WRIT - A No. - 18721 of 2018
 

 
Petitioner :- Pradeep And 2 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Seemant Singh
 
Counsel for Respondent :- C.S.C.
 
With
 
Case :- WRIT - A No. - 18705 of 2018
 

 
Petitioner :- Anand Yadav And 2 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Seemant Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Yashwant Varma,J.

Heard Sri Seemant Singh, learned counsel for the petitioners and Sri Piyush Shukla, the learned Additional Chief Standing Counsel for the State-respondents.

The petitioners in this set of two writ petitions assail Notifications/Government Orders issued by the State-respondents cancelling a recruitment process initiate by the U.P. Police Recruitment and Promotion Board [hereinafter referred to as "the Board"]. In Pradeep, the petitioners had applied for selection on the post of Fireman in the Uttar Pradesh Fire Brigade Service. The recruitment was to be conducted in accordance with the provisions put in place by the U.P. Fire Service Subordinate Officers/Employees Service Rules, 2016. In terms of Rule 15 of these Rules, the selection procedure was prescribed to follow the process as envisaged for the selection of constables in the U.P. Police for the time being in force. The procedure for recruitment of constables is comprised in the Uttar Pradesh Police Constable and Head Constable Service Rules, 20151 as amended from time to time.

In Anand Yadav, the petitioners therein had applied for selection on the post of Jail Warder governed by the Uttar Pradesh Prison Administration and Reforms Department Jail Warder Cadre Service Rules, 20162.

The petitioners in both sets had filled in their application forms and also deposited the requisite fee. However and admittedly no further concrete or substantive steps in aid or furtherance of the recruitment exercise were undertaken by the respondents. The process of recruitment initiated by the Notifications dated 20 December 2016 and 16 January 2017 for the post of Fireman came to be cancelled in terms of the Government Orders dated 17 October 2017 and 21 March 2018. It is these notifications which are assailed in the writ petition preferred by Pradeep and Others. The selection process for the post of Jail Warder came to be cancelled by the respondents in terms of a Government Order dated 22 March 2018 which is assailed in the writ petition preferred by Anand Yadav and Others. Apart from challenging the notifications aforementioned the petitioners have sought a further relief of a writ of mandamus being issued commanding the respondent to complete the selection process in accordance with the original notification/advertisements issued.

The principal reason which appears to have weighed with the respondents to cancel the selection process which was so initiated appears to be the intervening amendments to the statutory rules which governed the process of recruitment. It is in that backdrop that the petitioners principally contend that the process of recruitment once initiated was liable to be completed in accordance with the procedure prescribed under the statutory rules which prevailed on the date of issuance of the recruitment notifications and that any subsequent amendments to those rules would neither govern nor could such amendments be a legally justifiable ground to stall or cancel a selection process which was already underway.

Sri Seemant Singh, learned counsel for the petitioners has referred to the relevant clauses of the advertisement to submit that it was unambiguously provided that the process of selection for Fireman would be conducted in accordance with the provisions of the 2015 Rules. Similarly, for the selection of Jail Warders, Sri Singh drew the attention of the Court to Clause (4) of the advertisement to highlight that the respondents had clearly provided that the selection would be undertaken in accordance with the provisions of the 2016 Rules. According to Sri Singh, once the process of selection commenced with the issuance of an advertisement, the same could not have been cancelled merely because of an amendment to the statutory rules which applied. Sri Singh would submit that the moment the recruitment notification came to be issued and the petitioners applied in terms thereof, certain rights came to be created in their favour which could not have been taken away or obliterated by virtue of any amendment to the statutory rules. Sri Singh in support of his submissions has placed reliance upon a decision of the Supreme Court in N.T. Devin Katti and Others Vs. Karnataka Public Service Commission And Others3, and more particularly paragraph -11 of that decision which reads thus:

"There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selections in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature."

Sri Singh has also relied upon a decision rendered by a learned Judge of this Court in Vindhyavasini Tiwari And Others Vs. State of U.P. And Others4 and has laid emphasis on paragraphs 40 and 47 of that decision which read thus:

"40. One of the well established principle of law, in the matter of recruitment and appointment, is, that recruitment procedure as was available on the date of occurrence of vacancy must be followed to fill in those vacancies unless and until changed procedure or alteration or amendment in the rules have been made retrospectively so as to govern ongoing recruitment. When a vacancy occurs, general principle is that it shall be filled in, according to the procedure applicable at the time when vacancy occurred.

47. In view thereof, the vacancies existing in 2011 in respect whereof advertisement was published on 19.05.2011, deserved to be dealt with in accordance with rules as applicable at that time and the subsequent prospective amendment would not govern the same."

Sri Piyush Shukla, the learned Additional Chief Standing Counsel countering these submissions has contended that no rights stood created in favour of the petitioners since admittedly they had only filled in the application forms and deposited the requisite fee. According to Sri Shukla, no further steps in aid of the selection exercise were undertaken by the respondents nor did the petitioners participate in any written examination or Physical Efficiency Test conducted in terms thereof. Sri Shukla submitted that no prejudice whatsoever stood caused to the petitioners merely because the original advertisement came to be withdrawn. Elaborating on this aspect, Sri Shukla underlined the fact that none of the petitioners were rendered ineligible by virtue of the statutory amendments which came to be introduced in the applicable rules. Sri Shukla submitted that the right of consideration as inhering in the petitioners stood preserved and did not stand affected by the amendments which were introduced in the concerned rules. Sri Shukla further pointed out that in terms of the notifications impugned the fees deposited by the petitioners was to be adjusted in case they applied pursuant to the subsequent notifications issued and that the petitioners as well as all other candidates who had applied under the original notifications were also entitled to be granted the benefits of age relaxation in case any of them breached the maximum age restrictions prescribed under the relevant rules in the interregnum.

According to Sri Shukla, the submissions addressed on behalf of the petitioners cannot possibly be countenanced in light of the principles enunciated by the Supreme Court in State of M.P. And Others Vs. Raghuveer Singh Yadav And Others5. Sri Shukla laid stress upon paragraph -5 of that reported decision where it was held:

"5. It is not in dispute that Statutory Rules have been made introducing Degree in Science or Engineering or Diploma in Technology as qualifications for recruitment to the posts of Inspector of Weights and Measures. It is settled law that the State has got power to prescribe qualifications for recruitment. Here is a case that pursuant to amended Rules, the Government has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules."

It is these rival submissions which fall for determination.

Undisputedly, the only steps which were completed under the original recruitment notifications issued by the respondents was the receipt of applications and the collection of requisite fees. The respondents did not initiate any process for either conduct of a written examination or the administration of a Physical Efficiency Test as envisaged under the relevant rules. This factual position is not disputed by the learned counsel for the petitioners. The second but more fundamental aspect which must be borne in consideration is that none of the petitioners stand either disqualified or rendered ineligible from participating in any future recruitment exercise that the respondents would undertake consequent to the cancellation of the original advertisements. The position of the amended rules not rendering any of the petitioners ineligible from participating in any future recruitment exercise, is also admitted.

It would be apposite to briefly notice the statutory rules prevailing at the time of issuance of the original advertisements and the nature of amendments which were introduced and which appear to have weighed with the respondents to cancel the notification and re-commence the recruitment process in accordance with these amended provisions. For the post of Fireman, the 2016 Rules and more particularly Rule 15 thereof read as under:

"15. Procedure for direct recruitment--Direct recruitment to the posts of Fireman and Fire Station Second Officer in the service shall be made in the following manner--

(1) Fireman--The procedure for direct recruitment to the post of Fireman shall be same as the procedure prescribed by rules, for the time being in force for direct recruitment to the post of Constable of Uttar Pradesh Police.

(2) Fire Station Second Officer--The procedure for direct recruitment to the post of Fire Station Second Officer shall be the same as the procedure prescribed by rules, for the time being in force, for direct recruitment to the post of sub Inspector, Civil Police."

This prescription also stood engrafted in Clause (4) of the advertisement which was in the following terms:

"भर्ती की प्रक्रिया-

फायरमैन के पद पर चयन उत्तर प्रदेश पुलिस आरक्षी तथा मुख्य आरक्षी सेवा नियमावली-2015' में पुलिस आरक्षी के पद पर सीधी भर्ती की दी गयी प्रक्रिया के अनुसार किया जायेगाI"

The 2016 Rules provided that selection on the post of Fireman would follow the same process as prescribed for Constables in the U.P. Police. The 2015 Rules which governed the process of selection and recruitment to Constables and as prevailing at the time of issuance of the original advertisements envisaged the merit list being prepared on the basis of the marks obtained by candidates in the Xth and XIIth Examinations and a Physical Efficiency Test. The relevant part of Rule 15 of the 2015 Rules read thus:

"15- (a). Application Form: -

.......

(b) Merit List on the basis of 10th and 12th examination results All such candidates whose application forms are found correct, shall be awarded marks on the basis of their 10th and 12th standard Board examination results, or qualification equivalent thereto, as provided under clause (8) of these rules. For awarding these marks, maximum of 100 marks will be awarded on the basis of 10th standard Board examination and maximum of 200 marks will be awarded on the basis of 12th standard Board examination. The marks such awarded to them will be counted upto second digit after decimal point and will be awarded as per following procedure:-

(1) Marks awarded on the basis of 10th examination result = percentage of marks obtained by the candidate in 10th standard Board or examination equivalent thereto.

(2) Marks awarded on the basis of 12th examination result = 2 X percentage of marks obtained by the candidate in 12th standard Board or examination equivalent thereto.

If any examination Board, awards grades in place of marks to the candidates, in above mentioned 10th and 12th examination, then Board shall proceed only after taking information from concerned examination Board, regarding marks to be awarded equivalent to corresponding grades. Candidates shall be awarded total marks on the basis of sum total of marks awarded to them on the basis of 10th class examination results and marks awarded to them on the basis of 12th class examination results, as above. All candidates will be awarded total marks as per sum total of marks awarded as above, out of a maximum of 300 marks and a list in the order of merit will be prepared on the basis of these total awarded marks. Out of the merit list such prepared, candidates equal to 15 times the number of total vacancies, on the basis of merit shall be called for Physical Efficiency Test. If more than one candidates are found on the marks obtained by the last candidate in the merit list then all such candidates shall be considered eligible for Physical Efficiency Test.

All Candidates declared eligible in the merit list under clause (b) shall be required to participate in Physical Efficiency Test which shall be of 200 marks. The procedure for conducting the Physical Efficiency Test shall be as prescribed in Appendix-1.

(d) Scrutiny of Documents & Physical Standard Test The scrutiny of documents & Physical Standard Test of candidates selected under clause (c) mentioned above shall be done according to Appendix-2. In case any document is found to be manipulated, inaccurate or forged during the scrutiny or at anytime after the scrutiny, the candidature of the applicant will be cancelled at the discretion of the Board or the Appointing authority as the case may be.

(e) Selection and Final Merit List: -

From amongst the candidates found successful after Physical Standards Test and scrutiny of documents under clause (d), the Board shall prepare, as per the vacancies, a select list of each category of candidates, on the basis of sum total of, marks awarded to each candidate on the basis of 10th and 12th examination results as per clause (b) and marks obtained by him in physical efficiency test as per clause (c), keeping in view the reservation policy and send it with recommendation to the head of the department subject to character verification, medical examination and 10th and 12th examination mark sheet verification. No waiting list shall be prepared by the Board. List of all candidates with marks obtained by each candidate shall be uploaded on its website by the Board. The Head of the Department shall after his approval forward the list sent by the Board to the concerned Authority for further action.

..........................................."

By virtue of a notification dated 17 August 2017 the Uttar Pradesh Police Constable and Head Constable (First Amendment) Rules, 2017 came to be promulgated. Rule 15 came to be amended and prescribed the preparation of a final merit list based upon a written examination and a Physical Efficiency Test. The amended part of Rule 15 of the 2015 Rules read thus:

"(2) Written Examination-

Candidates, whose applications are found correct, shall be required to appear in written examination. In the written examination, the Board will keep one objective type question paper. The written examination will be of 300 marks and it shall have questions from General Knowledge, General Hindi, Numerical and Mental Ability, Mental Aptitude/I.Q. And Reasoning Ability.

Candidates will be awarded negative marks for wrong answers in the written examination. The detailed syllabus for the examination will be decided by the Board and will be displayed on its own website. The Board will decide at its own level to conduct written examination on one date in a single shift or in more than one shift or on more than one date in different shifts with different question papers or through computer based written examination system.

Note:-

(1) Detailed procedure for written examination shall be determined by the Board and will be displayed on its own website.

(2) If the Board decides to conduct the written examination in more than one shift or on more than one date in different shifts with different question papers, then the Board may, if neccessary, decide the process of normalization of marks obtained by candidates appearing in such examinations at its level and will publish it in its advertisement.

(3) Scrutiny of Documents and Physical Standard Test-

(A) Candidates found successful in written examination under sub-rule (2) shall be required to appear in Scrutiny of Documents and Physical Standard Test. Keeping in view the total number of vacancies, the Board shall decide at its own level, the number of candidates on the basis of merit to be called for this test. Physical Standards for candidates are as follows:-

...............

(4) Physical Efficiency Test-

(a) Candidates found successful in Scrutiny of Documents and Physical Standard Test will be required to appear in Physical Efficiency Test, which will be of qualifying nature.

(b) For qualifying in this physical efficiency test it shall be necessary for male candidates to complete 4.8 km. run in 25 minutes and for female candidates to complete 2.4 km. run in 14 minutes. Those candidates who do not complete the run within prescribed time shall not be eligible for recruitment.

(c) Detailed procedure for Physical Efficiency Test shall be determined by Board and will be displayed on its own website. For conducting this test a committee will be constituted by the Board in which a Deputy Collector nominated by the District Magistrate will be the Chairman and the Deputy Suprintendent of Police nominated by the District Suprintendent of Police will be a member. The other members of the committee shall be nominated by the District Magistrate or the Suprintendent of Police if required by the board.

(5) Selection and Final Merit List:-

(a) From amongst the candidates found successful in Physical Efficiency Test, the Board shall prepare a select list of each category of candidates, as per order of marks obtained by each candidate in written examination, keeping in view the reservation policy and send it to the Head of the Department and also publish it on the Board's website."

As is evident from the above while the original rules envisaged the preparation of a final select list on the basis of marks awarded in the Xth and XIIth Examination results together with the marks obtained by a candidate in the Physical Efficiency Test, this procedure was altered with the prescription of a written examination along with a Physical Efficiency Test.

For the post of Jail Warder also the 2016 Rules originally envisaged the preparation of a final select list on the basis of the Xth and XII Examination results and a Physical Efficiency Test. Rule 15 as it existed originally at the time of issuance of the initial advertisement was in the following terms:

" (b) Merit List on the basis of 10th and 12th examination results--

All such candidates whose application forms are found correct, shall be awarded marks on the basis of their 10th and 12th standard Board examination results, or qualification equivalent thereto, as provided under Rule (8) of these rules. For awarding these marks maximum of 100 marks will be awarded on the basis of 10th standard Board examination and maximum of 200 marks will be awarded on the basis of 12th standard Board examination. The marks so awarded to them will be counted upto second digit after decimal point and will be awarded as per following procedure--

(1) Marks awarded on the basis of 10th examination result = percentage of marks obtained by the candidate in 10th standard Board examination, or examination equivalent thereto.

(2) Marks awarded on the basis of 12th examination result = 2 X percentage of marks obtained by the candidate in 12th standard Board examination or examination equivalent thereto.

If any examination Board, awards grades in place of marks to the candidates, in above mentioned 10th and 12th examination, then Board shall proceed only after taking information from concerned examination Board, regarding marks to be awarded equivalent to corresponding grades. Candidates shall be awarded total marks on the basis of sum total of marks awarded to them on the basis of 10th class examination results and marks awarded to them on the basis of 12th class examination results, as above. All candidates will be awarded total marks as per sum total of marks awarded as above, out of a maximum of 300 marks and a list in the order of merit will be prepared on the basis of these total awarded marks. Out of the merit list so prepared, candidates equal to 15 times the number of total vacancies, on the basis of merit shall be called for Physical Efficiency Test. If more than one candidates are found on the marks obtained by the last candidate in the merit list then all such candidates shall be considered eligible for Physical Efficiency Test.

(d) Serutiny of Documents & Physical Standard Test The scrutiny of documents and Physical Standard Test of candidates selected under clause (c) mentioned above shall be done according to Appendix-3. In case any document is found to be manipulated, inaccurate or forged during the scrutiny or at anytime after the scrutiny, the candidature of the applicant will be cancelled at the discretion of the Board or the Appointing Authority as the case may be.

(e) Selection and Final Merit List:-

From amongst the candidates found successful after Physical Standards Test and scrutiny of documents under clause (d), the Board shall prepare, as per the vacancies, a select list of each category of candidates, on the basis of sum total of marks awarded to each candidate on the basis of 10th and 12th examination results as per clause (b) and marks obtained by him in physical efficiency test as per clause (c), keeping in view the reservation policy and send it with recommendation to the Head of the Department subject to character verification, medical examination and 10th and 12th examination mark-sheet verification. No waiting list shall be prepared by the Board. List of all candidates with marks obtained by each candidate shall be uploaded on its website by the Board. The Head of the Department shall after his approval forward the list sent by the Board to the concerned Authority for further action."

Rule 15 came to be amended with effect from 8 December 2017 whereafter the process of selection was envisaged as under:

"(2) Written Examination-

Candidates whose applications are found correct, shall be required to appear in written examination. In the written examination, the Board will keep one objective type question paper. The written examination will be of 300 marks and it shall have questions from General Knowledge, General Hindi, Numerical and Mental Ability, Mental Aptitude/I.Q. and Reasoning Ability.

NOTE:-

(1) Detailed procedure for written examination shall be determined by the Board and will be displayed on its own website.

(2) If the Board decides to conduct the written examination in more than one shift or on more than one date in different shifts with different question papers, then the Board may, if necessary, decide the process of normalization of marks obtained by candidates appearing in such examination at its level and will publish it in its advertisement.

(3) Scrutiny of Documents and Physical Standard Test-

(A) Candidates found successful in written examination under sub-rule (2) shall be required to appear in Scrutiny of Documents and Physical Standard Test. Keeping in view the total number of vacancies, the Board shall decide at its own level, the number of candidates on the basis of merit to be called for this test. Physical Standards for candidates are as follows:"

.................

"(5) Selection and Final Merit List:-

(a) From amongst the candidates found successful in Physical Efficiency Test, the Board shall prepare a select list of each category of candidates as per order of marks obtained by each candidate in written examination, keeping in view the reservation policy and send it to the Head of the Department and also publish it on the Board's website.

(b) No waiting list shall be prepared by the Board.

(c) The Head of the Department shall, after approval, send it to the Appointing Authority for issuing appointment letters subject to the Medical Examination and Character Verification of the candidates."

The submissions addressed on behalf of the petitioners principally flow from the oft quoted decision of the Supreme Court in A.A. Calton Vs. Director or Education and Another6 and the various subsequent decisions rendered by the Supreme Court as well as this Court following the principles elucidated therein.

Before dealing with the decisions relied upon by respective counsels, it would however be apposite to pause here and recognise and reiterate the fundamental precepts underlining the recognition of the ratio of a decision or judgment rendered by a Court of law. In order to discern and determine the ratio decidendi of a decision, it is necessary to appreciate the facts in the context of which it came to be rendered. A decision, as has been repeatedly held, is not be understood as an exposition of the whole law but governed and qualified by the particular facts of that case. A judgment cannot be accepted or viewed as an authority for a proposition of law in absolutist terms ignoring the framework of facts against which it came to be delivered or the essential issues and questions which arose for determination therein. The ratio of a decision cannot possibly be understood and correctly appreciated ignoring the particular facts in the backdrop of which the matter fell for consideration. It is bearing in mind the aforesaid fundamental postulates that the Court proceeds to deal with the judgments cited by learned counsels.

Calton undisputedly is one of the earliest decisions which dealt with the impact of an amendment to the statutory rules which governed a process of recruitment. The decision itself came to be rendered in the backdrop of the appellant there having been recommended by the Selection Committee constituted under Section 16E of the Intermediate Education Act, 1921. The recommendation was made in favour of the appellant there with the Selection Committee following the statutory procedure for selection then prevailing. The recommendation was disapproved by the Regional Deputy Director of Education. The matter thereafter stood remitted to the Selection Committee again. On the second occasion although the Selection Committee recommended the name of the appellant and another, the same came to be disapproved yet again by the Deputy Director where after a third recommendation was made. The High Court quashed the third recommendation and commanded the Director of Education to make appointments afresh. Pursuant to that direction the Director proceeded to appoint the respondent therein and it was that decision which Calton assailed. One of the principal contentions which was raised before the High Court and which dismissed the writ petition filed by Calton was that the appointment made by the Director was opposed to the relevant provisions of the Act since on that date by reason of certain amendments made in the Intermediate Education Act 1921 his power had come to be taken away in relation to minority institutions. It is in the aforesaid background that the Supreme Court held as follows:

" It is no doubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18, 1975 taking away the power of the Director to make an appointment under Section 16-F(4) of the Act in the case of minority institutions. The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings under Section 16-F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings. The process of selection under Section 16-F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection under Section 16-F(4) (as it stood then) is an integrated one. At every stage in that process certain rights are created in favour of one or the other of the candidates. Section 16-F of the Act cannot, therefore, be construed as merely a procedural provision. It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case."

In N.T. Devin Katti And Others Vs. Karnataka Public Service Commission and Others7 the Supreme Court was called upon to consider the question whether a Government Order which altered the provisions of reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes could have formed the basis for the cancellation of a recruitment process which had already been completed. In that case the Commission had duly conducted the written examination and viva-voce test and had proceeded to publish a final list of successful candidates in the Karnataka Gazette. This final selection list had been prepared bearing in mind the principles of reservation as encompassed in a notification dated 23 May 1975. The Government of Karnataka however refused to approve the list as prepared by the Commission since according to it the reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes should have been made in accordance with the procedure contained in the subsequent Government Order dated 09 July 1975. In the aforesaid factual matrix, the Supreme Court framed the question which merited determination to be as to which of the two Government Orders was required to be followed by the Commission while preparing the select list. It firstly held that the subsequent Government Order had been incorrectly interpreted by the Karnataka Government since it had indisputably, while superseding the provisions existing earlier, saved selection and recruitment exercises which had either been completed before or were pending on the date of its promulgation. It thereafter proceeded to hold:

"There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selections in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature."

The decision in Calton was also noticed by a Full Bench of this Court in Santosh Kumar Singh Vs. State of U.P. And Others8. The principal question which fell for determination by the Full Bench was whether the Committee of Management stood denuded of the power to make ad hoc appointments against short term vacancies under the Removal of Difficulties Order even thought it stood rescinded by virtue of an amendment in the U.P. Secondary Education Service Selection Board Act 1982 introduced after the publication of the advertisement and the selection process having commenced. Following the decision in Calton the Full Bench held:

"8. The decision in A. A. Calton (1983) 3 SCC 33:AIR 1983 SC 1143 (supra) is, therefore, an authority for the proposition that once a process of selection has been initiated, a subsequent amendment of the law by which the power to make an appointment has specifically been taken away from a statutory authority - in that case from the Director - would have no application to a pending selection process which must be governed by the law as it stood when the selection process was initiated. Undoubtedly, the Legislature does have the power to make a law with retrospective effect but unless the law is made expressly retrospective or retrospective by necessary implication, the position of law as it stood when the selection process was initiated, would govern the selection.

9. In certain other contexts, the Supreme Court has held, for instance, that a selection process has to be governed by the Rules and Government Orders in existence on the date on which the process is initiated. In N. T. Devin Katti Vs Karnataka Public Service Commission, the Supreme Court held as follows:

"...Where proceedings are initiated for selection by issuing advertisement, the selection should normally be regulated by the then existing rules and Government orders and any amendment of the rules or the Government order pending the selection should not affect the validity of the selection made by the selecting authority or the Public Service Commission unless the amended Rules or the amended Government orders, issued in exercise of its statutory power either by express provision or by necessary intendment indicate the amended Rules shall be applicable to the pending selections. See P Mahendran Vs State of Karnataka."

10. In State of Bihar Vs Mithilesh Kumar, the Supreme Court held that a change in the norms of recruitment could be applied prospectively and could not affect those who have been selected for being recommended for appointment after following the norms which were in place at the time when the selection process was commenced. The submission to the contrary was based on the decision in Shankarsan Dash Vs Union of India to the effect that mere inclusion in a select panel did not confer indefeasible right to appointment. The Supreme Court explained the position in law as follows:

"The decisions which have been cited on behalf of the respondent have clearly explained the law with regard to the applicability of the rules which are amended and/or altered during the selection process. They all say in one voice that the norms or rules as existing on the date when the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect. While a person may not acquire an indefeasible right to appointment merely on the basis of selection, in the instant case the fact situation is different since the claim of the respondent to be appointed had been negated by a change in policy after the selection process had begun."

.......

14. These observations of the Supreme Court would indicate that the issue in Shankarsan Dash [1991 (3) SCC 47: AIR 1991 SC 1612] (supra) was completely distinct. A candidate who is on a select list does not have an indefeasible right to appointment merely because a vacancy exists. That is not the issue in the present case. The issue in the present case is whether a process of selection which was initiated prior to the insertion of Section 33-E which rescinded the Removal of Difficulties Orders must be governed by the law as it then stood at the time when the process was initiated by the issuance of an advertisement. Plainly, the issue is not about the right of a particular candidate to appointment but whether the selection process should be governed by the law as it stood when the selection process was initiated. On this aspect, the consistent position of law has been laid down in the judgment of the Supreme Court in A. A. Calton[(1983) 3 SCC 33:AIR 1983 SC 1143] (supra).

......

We consequently answer the reference in the following terms:

(a) Despite the rescission of the Removal of Difficulties Orders by Section 33-E of U P Act No 13 of 1999 with effect from 25 January 1999, the power of the Committee of Management to make appointments against short term vacancies, where the process of appointment had been initiated prior to 25 January 1999 by the publication of an advertisement, would continue to be preserved;

(b) On the enforcement of the provisions of Section 33-E, the power of a Committee of Management to make ad hoc appointments against short term vacancies would not stand abrogated in a case where the process of selection had been initiated prior to 25 January 1999;

(c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16-E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and

(d) The judgment of the Division Bench in Subhash Chandra Tripathi (supra) is affirmed as laying down a correct interpretation of the judgment in A.A. Calton [(1983) 3 SCC 33:AIR 1983 SC 1143] (supra). "

In both Calton as well as N.T. Devin Katti the Supreme Court was dealing with a situation where certain rights which accrued to persons were sought to be effaced by virtue of certain amendments made in the applicable statutory scheme. While in Calton the Court was faced with recommendations made in favour of certain candidates in accordance with the statutory scheme prevailing when the selection was undertaken, in N.T. Devin Katti recommendations had been notified by the Commission in tune with the provisions of reservation as embodied in the relevant government order. The recommendations and selections were undertaken in accordance with the statutory scheme prevailing during the process. The recommendations created rights in favor of the selected persons. In both the aforementioned decisions, a selection process which had been completed was sought to be declared invalid by virtue of statutory amendments, which were introduced after the commencement of the process. The selection exercise in both those decisions had proceeded a distance, written and viva voce examinations held. Additionally in Calton the authority and jurisdiction of a functionary was challenged on the anvil of amendments introduced during the course of the selection process. Similarly before the Full Bench in Santosh Kumar Singh it was contended that the functionary had lost its authority to undertake the process of recruitment on account of a statutory amendment which came to be introduced after the commencement of the selection process.

On a fundamental plane therefore what was urged for the consideration of the Court in those decisions was that the selection process was rendered invalid by virtue of statutory amendments introduced in the interregnum. This contention came to be negatived firstly since statutory amendments intrinsically are presumed to be prospective in their application and secondly because the amendments if accepted to be applicable would have resulted in an impairment and effacement of rights which had come to be created in between. The true ratio of these decisions must necessarily be appreciated and understood bearing in mind these twin issues which were determined.

In fact the Full Bench of the Court in Santosh Kumar Singh captured the ratio of Calton in the following words: -

"8. The decision in A. A. Calton (1983) 3 SCC 33:AIR 1983 SC 1143 (supra) is, therefore, an authority for the proposition that once a process of selection has been initiated, a subsequent amendment of the law by which the power to make an appointment has specifically been taken away from a statutory authority - in that case from the Director - would have no application to a pending selection process which must be governed by the law as it stood when the selection process was initiated. Undoubtedly, the Legislature does have the power to make a law with retrospective effect but unless the law is made expressly retrospective or retrospective by necessary implication, the position of law as it stood when the selection process was initiated, would govern the selection.

In N.T. Devin Katti while ruling on the aspect of rights being affected, an important caveat was placed with their Lordships observing thus in paragraph 11: -

"..........Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature."

More significant and pertinent is the decision of the Supreme Court in State of M.P. where their Lordships held: -

"...Here is a case that pursuant to amended Rules, the Government has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules."

Insofar as the decision in Vindhyavasani Tiwari is concerned, with due respect to the learned Judge, the proposition as framed in paragraph 40 of the report that "....When a vacancy occurs, general principle is that it shall be filled in, according to the procedure applicable at the time when the vacancy occurred." is too broadly framed and stated. The analysis of the decisions in Calton, N.T. Devin Katty and the ratio of those decisions as recognised herein above does not support the conclusion drawn by the learned Judge.

As is the case before this Court in State of M.P., the Government there sought to withdraw the earlier notification with the intention of recommencing the recruitment process in terms of the amended rules. In that backdrop the Supreme Court held that the Government was entitled to conduct the selections in accordance with the changed rules. It was further observed that no vested right as such stood created in favour of the candidates.

The ratio of these decisions, therefore, cannot be read as laying down a proposition of general application irrespective it being found that the rules were not intended to be retroactive in operation and existing rights being affected and impacted adversely in the facts of the case. In the considered view of this Court on a correct appreciation of Calton, Devin Katti and Santosh Kumar Singh it is when the afore noted twin aspects exist that the principles enunciated therein would apply. It would therefore have to necessarily be found that not only were the amendments not intended to be retrospective but that certain rights which came into existence and inhered in candidates are impacted.

In the present set of writ petitions while it is nobody's case that the amendments are retrospective, the crucial questions to be posited are these: -

(a) firstly, whether rights came to be created in favour of the petitioners by the time the amendments were introduced and

(b) secondly, whether the statutory changes have in any manner impeded or impaired those rights.

The answer to both the questions posed, in the considered view of this Court, must be in the negative and against the petitioners for the following reasons.

As noted in the introductory part of this decision, the only two steps undertaken in respect of the recruitment process in question was the invitation of application forms and deposit of fee. The petitioners here had not been subjected to either a written examination or a Physical Efficiency Test. The respondents are not stated to have evaluated the marks obtained by candidates in the Xth and XIIth standard examinations or published any tentative merit list. While the process of recruitment stood thus, amendments were introduced in the applicable statutory rules replacing the system of evaluation of inter se merit on the basis of marks obtained in the High School and Intermediate examination with a competitive written examination. None of the petitioners were subjected to any preliminary testing nor were their respective merits evaluated. The respondents did not formulate any recommendations nor did they draw up any merit list. Viewed in that light, the Court finds itself unable to discern or recognise the creation of any right or semblance thereof in favour of the petitioners when the selection process stood stalled and stagnated at the nascent and preliminary stage of mere receipt of applications and deposit of fee.

On an overall conspectus of the above, this Court is of the firm view that no rights stood created in favour of the petitioner which could be recognised as having been impacted by the impugned notifications.

All the petitioners, indubitably, have passed the High School and Intermediate examination. The statutory amendments introduced in the interregnum have not rendered them disqualified or ineligible in any future recruitment that may be initiated. This was admitted to Sri Singh the learned counsel for the petitioners.

In fact on the pointed query of the Court to elaborate on the aspect of the impugned decisions adversely affecting the petitioners, learned counsel candidly submitted that all of them would now have to participate in a competitive written examination with others and that this may diminish their chances of selection. This submission cannot possibly be countenanced or receive a judicial imprimatur since no candidate can be recognised to have a right in law to compete only amongst a select few. An apprehension that the petitioners would not succeed in the face of stiffer competition cannot be countenanced. Merely because additional candidates enter the fray or that the petitioners would now be required to participate in a written examination along with others cannot be viewed as an infraction of a right, let alone a legal right. The recruitment to government service must be open to all who fulfil the essential eligibility criteria. In fact the very purpose of an exercise of recruitment initiated by the Commission or any other similar expert body is to identify and select the best possible candidate. After all the positions to which the candidates vie are under the State. The recruitment exercise undisputedly is imbued with an element of public interest for the selected candidate will go on to discharge public functions and act in service of the citizens of the State. No facet of Articles 14 and 16 of the Constitution can possibly sustain the submission advanced on behalf of the petitioners. Merely because the petitioners would now have to compete with others in a written examination cannot be viewed as resulting in the destruction or impairment of their rights. The mere expansion of the zone of consideration by inclusion of various others who are otherwise eligible in law to participate cannot possibly be recognised as resulting in a violation of a legal right possessed by or existing in the petitioners.

Sri Singh then feebly raised the issue of the vacancies which formed the subject matter of the original advertisements having come into existence prior to the introduction of the statutory amendments and therefore being liable to be filled in accordance with those which prevailed at the time of their creation.

Firstly the Court notes that no factual foundation in this respect had been laid in the writ petition. There is no disclosure of when the vacancies encompassed in the advertisements had come into existence. However this contention is liable to be negatived even otherwise for the following reasons.

This submission, as admitted by Sri Singh, was addressed in light of the decision of the Supreme Court in Y.V. Rangaiah Vs. J. Sreenivasa Rao9. At the outset it must be noted that Rangaiah was a decision rendered in the context of promotion and not recruitment per se. There the Supreme Court had laid down the principle that a promotional vacancy is liable to be filled in accordance with the rules prevailing on the date when it came into existence. Significantly the decision in Rangaiah has been explained in a subsequent decision of the Supreme Court in Deepak Agarwal Vs. State of U.P.10 In Deepak Agarwal the Supreme Court noted that the rule which fell for consideration in Rangaiah mandated a promotional exercise being undertaken annually. It was accordingly held that the principle enunciated in that decision of the rules prevailing on the date of occurrence of vacancies applying to the selection must necessarily be appreciated in that context. In essence it was held that the above noted principle cannot be recognised as being one of universal application and must be understood and appreciated in the backdrop of the relevant statutory rules and whether they envisaged the filling of vacancies periodically. It was consequently held that only where there is a failure to conduct a selection process periodically in accordance with a statutory obligation placed in that respect could it be held that the rules prevailing on the date of occurrence of vacancies would apply.

The Court lastly notices a recent judgment rendered by two learned Judges of the Supreme Court in State of Tripura and Others Vs. Nikhil Ranjan Chakraborty And Others11, which was rendered in the context of promotion and would have an important bearing on the submission which is addressed. In this decision the Supreme Court was faced with the argument that vacancies which had come into existence prior to the amendment of the governing statutory rules would have to be filled in accordance with the rules as prevailing on the date of their creation and not those which existed at the time when the process was initiated. Noticing the decision rendered by the Supreme Court in Deepak Agarwal it was held as follows:

"8. In Deepak Agarwal Vs. State of U.P., [(2011) 6 SCC 725:(2011) 2 SCC (L&S) 175] the appellants were Technical Officers who along with Assistant Excise Commissioners were eligible to be considered for promotion to the post of Deputy Excise Commissioner. Two days before the DPC was scheduled to meet to consider the cases of all eligible officers for promotion, the concerned Rules were amended and Technical Officers stood excluded as the feeder post for the next promotional post of Deputy Excise Commissioner. The challenge to such exclusion having been negated Deepak Agarwal Vs. State of U.P. [2002 SCC OnLine All 1279: 2002 All LJ 1701] by the High Court the matter reached this Court and the relevant paragraphs of the decision were:

"2. The old vacancies have to be filled under the old rules is the mantra sought to be invoked by the appellants in support of their claim that the vacancies arising prior to 17-5-1999, ought to be filled under the 1983 Rules as they existed prior to the amendment dated 17-5-1999. The claim is based on the principle enunciated by this Court in Y.V. Rangaiah v J. Sreenivasa Rao (1983) 3 SCC 284:1983 SCC (L&S) 382.

23. Could the right of the appellants, to be considered under the unamended 1983 Rules be taken away? The promotions to the 12 vacancies have been made on 26-5-1999 under the amended Rules. The High Court rejected Deepak Agarwal Vs. State of U.P. [2002 SCC OnLine All 1279: 2002 All LJ 1701] the submissions of the appellants that the controversy herein is squarely covered by the judgment of this Court in Y.V. Rangaiah (1983) 3 SCC 284:1983 SCC (L&S) 382. The High Court has relied on the judgment of this Court in K. Ramulu v Dr. S. Suryaprakash Rao (1997) 3 SCC 59:1997 SCC (L&S) 625.

24. We are of the considered opinion that the judgment in Y.V. Rangaiah case (1983) 3 SCC 284:1983 SCC (L&S) 382 would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the Rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amended Rules would be governed by the old Rules and not the amended Rules.

25. In the present case, there is no statutory duty cast upon the respondents to either prepare a yearwise panel of the eligible candidates or of the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable Rules. The requirement to identify the vacancies in a year or to take a decision as to how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to the candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhavan that the vacancies, which had arisen before 17-5-1999 had to be filled under the unamended Rules.

26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates unless, of course, the applicable rule, as in Y.V. Rangaiah case lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment."

9. The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, "rules in force on the date" the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in the case of Deepak Agarwal, in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24.11.2011."

In view of the exposition of the law in Deepak Agarwal as well as the Sate of Tripura noticed above, the last submission advanced by Sri Singh must also and is rejected.

In the ultimate analysis the Court notes that the recruitment process languished at the stage of receipt of applications and fee deposited by candidates. No process for evaluation of inter se merit was commenced or undertaken. The petitioners did not participate in any written examination of Physical Efficient Test. No merit list, tentative or otherwise, was prepared or drawn up. No recommendations came to be framed in favour of the petitioners. Viewed in that light it is manifest that no vested rights stood created in favour of the petitioners. The respondents appear to have taken a conscious decision to cancel the original advertisements and recommence the selection process in light of the amended statutory rules. This decision merits no interference since it is not established to be arbitrary. The petitioners, undisputedly are also not rendered ineligible under the amended rules. There has been no deprivation of their rights. The mere fact that they would now be subjected to a written examination along with others does not result in the violation of a legal right. The decisions in Calton, Devin Katti as well as of the Full Bench in Santhosh Kumar Singh do not lay down a general or absolute proposition as was sought to be canvassed at the behest of the petitioners. For the principles enunciated therein to apply it would be incumbent upon the candidate to establish that a vested right which came to be created in his favour is adversely impacted or that the amended statutory regimen renders him ineligible to participate in the selection process. As has been held earlier, no vested rights came to be created in favour of the petitioners. The impugned action has not resulted in the destruction of any rights.

In view of all of the above, these writ petitions are dismissed.

Order Date :- 14.02.2019 Arun K. Singh/faraz (Yashwant Varma, J.)

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