Rajasthan High Court - Jaipur
Chanan Ram vs State Of Raj. And Anr. on 3 March, 1997
Equivalent citations: 1997(2)WLC378, 1997(1)WLN223
JUDGMENT M.G. Mukherji, C.J.
1. This special appeal arises out of the judgment dated 9.8.1996 passed in S.B. Civil Writ petition No. 2474/1996 by the learned Single Judge. The learned Single Judge has negated the contention of the petitioner that the eligibility of the petitioner for recruitment against the vacancies advertised is to be governed by the old Rules of 1986 under which Rules the petitioner was eligible and applied in pursuance of the advertisement issued by the Rajasthan Public Service Commission. The contention of the petitioner to the effect that the amendment of Rules in 1995 cannot be made applicable to the vacancies which had been advertised much prior to the coming into force of the amendment of 1995 and against which the petitioner had also applied was not aearpted and the writ petition was dismissed in limine without issuing any notice to the respondents. Being aggrieved, the petitioner has filed the present special appeal against the impugned order passed by the learned Single Judge.
2. The facts, as stated in the petition, are that the petitioner has acquired the qualifications of B.Sc. Agriculture in IInd Division and Diploma in Marketing and Inspection in Agricultural Marketing from the Government of India. Respondent No. 2 Rajasthan Public Service Commission (referred to hereinafter as "the Commission" had invited applications for recruitment to various posts including 23 posts of Assistant Director (Junior) vide advertisement dated 5.11.1993, a copy whereof has been attached as Annex. P/l to the writ petition. As per the advertisement Annex. P/l, the qualifications have been prescribed as to be Graduate in Economics, Commerce or Agriculture in IInd Division from a recognised University and the candidate should also be qualified in Agriculture Marketing from a recongised Institution. The last date for submitting the applications was fixed as 31.12.1993. It is stated in the petition that the posts advertised in the advertisement pertained to the years 1986-87 to 1992-93 after vacancies have been determined by the respondent No. 1 in accordance with Rule 8 of the Rajasthan State Agricultural Marketing Services Rules, 1986 (hereinafter referred to as "the Rules of 1986." It is submitted that for about 6 years no such posts were advertised or filled up by the respondents and, therefore, vide advertisement Annex. P/l the posts so advertised were to be governed by the recruitment Rules of 1986, which were in force at that time.
3. It is submitted in the petition that the Government of Rajasthan had directed the Public Service Commission not to fill up the vacancies of Assistant Director (Junior) as advertised vide Annex. P/1 for the reason that the Government was contemplating to bring some amendment by prescribing certain qualifications in the Rules itself vide letter dated 28.12.1993 (Annex. P/2). It is stated that on 7.5.1994 the Commission had again sought direction from the Government for permission to fill up the vacancies, but once again the Government had, vide letter dated 23.5.1994 (Annex. P/3), informed the Commission that because of the reasons that the Government is contemplating to amend the Rules, therefore, the posts should not be filled up. Ultimately, the Government had amended the Rules in the month of April, 1995 and had made certain changes in the Rules. By way of amendment in the Rules the nomenclature of the post of Assistant Director (Junior) was redesignated as Marketing Officer and the basic qualifications were also changed i.e. the minimum qualification now prescribed under the amended Rules was M.Sc. Agriculture or as prescribed in the Rules. A fresh advertisement was issued on 8.1.1996, a copy of which is attached as Annex. P/4 to the writ petition and the applications were invited for 26 posts of Marketing Officers as designated by way of amendment. The applicants were required to submit the applications by 7.3.1996. The eligibility qualifications as prescribed under the amended Rules were M.Sc. Agriculture or a Degree in Articals with Economics, Commerce or Agriculture with minimum IInd Class and a Diploma in Marketing from a recongised Institution. The minimum and maximum age prescribed under the advertisement were 21 and 33 years respectively.
4. Vide amendment date 19.4.1995 the designation of the post was changed and vide amendment dated 26.4.1995 certain qualifications were added. These amendments have been published in November, 1995. Both the amendments are reproduced as under:
Amendment Dated 19.4.1995 (2) The existing expression "Assistant Director (Junior)" occurring in Col. 4 against the entry at SI. No. 3 and in Col. No. 2 against the entry at SI. 4, shall be substituted by the expression "Marketing Officer.
Amendment Dated 26.4.1995 The existing entry occurring in column No. 7, against S. No. 4 of the Schedule appended to the said Rules, shall be substituted by the following namely:
M.Sc. (Agriculture) with specialization in Agriculture Economics/Agriculture Marketing of a University established by law in India, (1) At least second class degree either in Articals with Economics or in Commerce or in Agriculture of a University established by law in India.
(2) Specialised training in Agriculture Marketing from recognised Institution.
5. The grievance of the petitioner in challenging the new advertisement is, that under the earlier advertisement Annex. P/l the petitioner did fall within the age limit prescribed, but now in the resh advertisement under the Rules for the post of Marketing Officer, he had become over age because of lapse of time. It is submitted on behalf of the petitioner that recruitment to the vacancies relating to the year 1986-87 to 1992-93 was required to be made under the unamended Rules of 1986 and if at all the amendments of 1995 were to be made applicable, in that situation, those could only apply to the vacancies arising after the coming into force of the amendment in the Rules and that too prospectively. It is stated that once the vacancies are determined of a particular year, and the advertisement is made for recruitment and selection, the selection must be confined under the Rules which were applicable at the time when the advertisement was made, because of reason that the respondents are said to have kept the advertisement Annex. P/1 in abeyance for a period of two years after issuance of the advertisement Annex. P/l, the petitioner cannot be made to suffer and his case must be considered under the unamended rules. It is further submitted that by way of amendment only the nomenclature the post was changed with certain provision of alternative added qualifications and the aforesaid amendments could not in any way affect the advertisement already made vide Annex. P. 1. It is submitted that the application submitted by the petitioner in response to the advertisement could not be ignored only because of the reason that the nomenclature of the post has been changed and the advertisement already inserted is deemed to continue for the additional reason that the said advertisement was not cancelled. It has also been submitted that if the vacancies meant for direct recruitment are not filled up for a particular year and ultimately the vacancies are determined, those vacancies are to be filled up under the Rules when they were determined and advertised. For the reasons that the selection procedure has been initiated, the petitioner is praying for an appropriate writ, order or direction to fill up the posts of Assistant Director (Junior) in accordance with the advertisement Annex. P/l under the unamended Rules of 1986 and to consider the candidature of the petitioner for the post of Marketing Officer as now re-designated in continuation of his earlier application and the previous advertisement could not be ignored, only because of the reason that certain alternative qualifications were added or name of the post was changed.
6. Separate detailed replies were filed by the respondents No. 1 and 2 in response to the notices issued by this Court in appeal and the stay application. It is stated in the reply that under the Rules of 1986 the posts of Assistant Director (Junior) are to be filled up after determination of vacancies through 50% by promotion and 50% by direct recruitment and the steps were taken for filling up the said vacancies. It is stated that the Commission was informed that no recruitment be made in pursuance of the advertisement Annex. P/l because the Government was contemplating to amend the Rules. It is stated in the reply that the amendment was necessary to be made in order to give benefit of reservation to the Backward Classes. It is stated that 2 days before the last date of inviting the applications, a letter was written by the Government to the Commission to stay the process of selection for the reason that the Government was contemplating to amend the Rules.
7. It is admitted by the respondent No. 2 Commission, that the appellant had applied for being considered in response to the advertisement dated 5.11.1993 Annex. P/l but it is stated that the Government had withdrawn the requisition for holding recruitment on 3.8.1995. It is further stated by the Commission that after withdrawal of the requisition the carder structure given under the Rules of 1986 was revised and the post of Assistant Director (Junior) was redesignated as Marketing Officer and new qualifications were added and on receipt of the fresh requisition by the Commission from the State Government an advertisement dated 8.1.1996 was published. It is denied that the un-amended Rules can be made applicable to the vacancies advertised prior to the amendments of 1995. It is denied that the vacancies as advertised vide Annex. P/l, relating to the years 1986-87 and 1992-93, are to be filled up in accordance with the rules prevailing in the relevant years.
8. Four points arise for determination in the present case i.e. (1) Whether under Rules 8 of the Rules of 1986 when the vacancies had been determined finally and had been advertised for recruitment to the posts of Assistant Director (Junior) with the qualifications as mentioned in the then prevailing Rules and the petitioner having applied for the same, was the Government bound to consider the case of the petitioner under the Rules as prevalent at that time? (2) Whether the amendment of the Rules by prescribing certain additional alternative qualifications (even though the enhancement of the qualifications did not affect the petitioner as he is educationally qualified under the new amendment Rules as well) is to be made applicable prospectively, (3) Whether the Rajasthan Public Service Commission had at any time withdrawn the advertisement by issuing a new advertisement or whether the advertisement Annex. P/l was ever superseded by the Rajasthan Public Service Commission or not and (4) and to what relief ultimately the petitioner should be entitled to.
9. For the contention that the recruitment as per advertisement Annex. P/l for the relevant years from 1986-87 to 1992-93, when the vacancies have been determined, is to be governed by the unamended Rules of 1986, the petitioner relies on Y.V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors. ; A.A. Calton v. Director of Education and anr. ; P. Ganeshwar Rao and Ors. v. State of Andhra Pradesh 1988 (Supp) S.C.C. 740; A.P. Public Service Commission and Anr. v. B. Sarat Chandra and Ors. 1990 (4) S.L.R. 235; P. Mahendran and Ors. v. State of Karnataka and Ors. on a Division Bench Judgment of this Court in Dr. Ram Shanker Asopa v. The State of Raj. and Ors. (D.B. Civil Writ Petition No. 1359 of 88 decided on 18.1.1989).
10. Counsel for the respondents relies on Supreme Court judgments in J.& K. Public Service Commission etc. v. Dr. Narinder Mohan and Ors. and on Rajasthan Public Service Commission v. Smt. Anand Kanwar and Ors. (Civil Appeal No. 52 of 93 decided on 8.2.1995 and on a Division Bench Judgment of this Court in Raj. Council of Diploma Eng. v. The State of Raj. (WLR 1991 (s) Raj. 487).
11. In Y.V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors. Hon'ble Court was seized of the matter in regard to the promotions of L.D.Cs. in the Department of Registration and Stamps wherein a list of approved candidates was to be prepared by the appointing authority and the Rule further provided that such list shall be prepared in the prescribed manner by the appointing authority in the month of September every year so as to be in force until the list of approved candidates for the succeeding year is prepared, and for preparing the said list the claims of as many eligible candidates as such authority considers necessary shall be considered. The grievance of the petitioners in that case was that the list should have been prepared on 1st September, 1976 for making appointments to the grade of Sub-Registrars Grade II by transfers and it was submitted that contrary to the rules and instructions a list of approved candidates was not prepared on 1st September, 1976; instead it was considerably delayed and drawn up only in the year 1977 when an amendment to the Rules had been incorporated on 22.3.1977 whereby the original Rules providing for consideration of L.D.Cs. for appointment as Sub-Registrars Grade II were don away with and promotion or transfer to that category was to be made from amongst U.D.Cs. employed in the Registration and Stamps Department. It was the case of the petitioners before the Supreme Court that by delaying the preparation of list of approved candidates till after the rules were amended, their chance for consideration for appointment to the higher post were adversely affected. After considering the various contentions of the parties, the Hon'ble Apex Court had Ruled that the vacancies which occurred prior to the amended Rules would be governed by the old Rules and not by the amended Rules and the posts falling vacant prior to the amended Rules would be governed by the old Rules and not by the new Rules. The observations of the Hon'ble Supreme Court are reproduced as under-:
Under the old Rules a panel had to be prepared every year In September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of sub-Registrar Grade II Should have been made out of that panel. In that even the petitioners in the two representation petitions who ranked higher than the respondents No. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended Rules would be governed by the old Rules and not by the amended Rules. It is admitted by the counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new Rules on the Zonal basis and not on the state-wide basis and, therefore, there was no question of challenging the new Rules. But the question is of filling the vacancies that occurred prior to the amended Rules. We have not the slightest doubt that the post which fell vacant prior to the amended Rules would be governed by the old Rules and not by the new Rules.
12. In A.A. Calton v. Director of Education and Anr. , it was held by the Hon'ble Supreme Court that the process of selection under Section 16-F of the Act commences from the stage of calling for applications for a post upto 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 was held that no retrospective effect should be given to any statutory provision so as to impale 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 case of A.A. Calton an amendment in Section 16-F of the U.P. Intermediate Education Act, 1921 was incorporated by U.P. Act 26 of 1976. The Statutory provision before the amendment read that no person shall be appointed as a Principal, Headmaster or teacher in a recognised institution unless he possesses the prescribed qualifications or has been recommended by selection committee constituted under the provisions of the Act and approved in the case of the Principal or Headmaster by the Regional Deputy Director, Education. It was further provided that the name of the selected candidate shall be forwarded for approval in the case of a teacher by the Principal or Headmaster to the Inspector and in the case of Principal or Headmaster by the Chairman of the Selection Committee to the Regional Deputy Director, Education, Sub-section (4) of Section 16-F of the U.P. Intermediate Education Act provided that if the recommendation has been disapproved or representation of the management has been rejected, the Selection Committee shall proceed to select and recommend another name for approval and if again it is disapproved or rejected then the Director, in the case of a Principal or Headmaster, may appoint any qualified person out of the list of candidates applying for the vacancies and such appointment shall be final. By away of amendment coming into force on 18.8.1975 the power of the Director to make an appointment under Section 16-F (4) was taken away in the case of minority institutions. The amendment did not however provide expressly that the amendment in question would apply to pending proceedings under Section 16-F of the Act. The Hon'ble Supreme Court had held that the amendment had no effect on the proceedings which had commenced prior to the coming into force of the amendment Act and such proceedings have to be continued in accordance with law as it stood at the commencement of the said proceedings.
13. As per law laid down in the case of A.A. Calton, the selection process starts from the issuance of the advertisement when the applications were called for the first time.
14. In P. Ganeshwar Rao and Other v. State of Andhra Pradesh and Ors. (1988 (Supp) S.C.C 740) for the recruitment years 1978 and 1979 the estimate of vacancies were due with the Public Service Commission in the first week of May, 1978 and of May 1979. In accordance with the Rules then in force, the State Government took the decision in February 1980 to notify 18 vacancies for the recruitment year 1978 and 18 vacancies for the recruitment year 1979. The Commission was required to fill up 36 vacancies in addition to the 15 vacancies already notified to the Public Service Commission and was asked to send the zone-wise break up of vacancies keeping in view the Rules of special representation for Scheduled Castes, Scheduled Tribes, Backward Classes etc. for recruitment to the post of Assistant Engineers. In the meanwhile the Public Service Commission had published an advertisement in or about September 1980 inviting applications for recruitment of Assistant Engineers directly, specifying January 8, 1981 as the last date for submitting the applications. In that notification the public Service Commission had intimated that 15 vacancies were available for recruitment as per the first communication. When the process of recruitment was in progress some of the officers who were working as Incharge Assistant Engineers or Junior Engineers in the Panchayat Raj Department Engineering Service made representations to the State Government raising objection to the proposed direct recruitment of 51 Assistant Engineers on the basis of the total number of substantive and temporary vacancies which had arisen in the years 1978 and 1979 on the ground that as per the amendment of the Rules made on 28.4.1980 only 37 1/2% of the substantive vacancies could be filled up by direct recruitment. According to them only 8 vacancies could be filled up by direct recruitment as per the amended Rules. The action of the State Government was challenged before the Tribunal and it was averred on behalf of the State that the amendment of the Rules had no effect on the vacancies which had arisen prior to the date on which the amendment was made and, therefore, the State was competent to fill up the vacancies by direct recruitment as per the unamended Rules. The contention of the State Government was rejected and the Tribunal had held that the State Government cannot fill up 51 vacancies after the special Rules were amended on 28.4.1980 irrespective of the fact that the vacancies in question had arisen prior to the date of the amendment, which was challenged before the Apex Court. It was held as under:
It is clear from the Special Rules as they were in force prior to the amendment on April 28, 1980 that it was open to the State Government to fill 371/2 per cent of the vacancies (both substantive and temporary) in the cadre of Assistant Engineers by direct recruitment. It is also not in dispute that during the years 1978 and 1979 the position of the vacancies was such that it was permissible for the State Government to appoint 51 Assistant Engineers by direct recruitment. The only question which has now to be considered is whether the amendment made on April 28, 1980 to the Special Rules applied only to the vacancies that arose after the date on which the amendment came into force or whether it applied to the vacancies which had arisen before the said date also. The crucial words in the Explanation which was introduced by way of amendment in the Special Rules on April 28, 1980 were "37 1/2 per cent of the substantive vacancies arising in the category of Assistant Engineers shall be filled by the direct recruitment". If the above clause had read "371/2 per cent of the substantive vacancies in the category of Assistant Engineers shall be filled by the direct recruitment" perhaps there would not have been much room for discussion. The said clause then would have applied even to the vacancies which had arisen prior to the date of the amendment but which had not been filled up before that date, We feel that there is much force in the submission made on behalf of the appellants and the State Government that the introduction of the word "arising" in the. above clause made it applicable only to those vacancies which came into existence subsequent to the date of amendment.
15. In P. Mahendran and Ors. v. State of Karnataka and Ors. in a dispute relating to appointment to the post of Motor Vehicle Inspectors under the Karnataka General Service (Motor Vehicle Branch) (Recruitment) Rules, 1962 the Rules provided the minimum qualification for the post of Motor Vehicle Inspectors as Diploma in Automobile Engineering or Mechanical Engineering. About 200 posts of Motor Vehicle Inspectors were filled up from amongst the candidates holding Diploma in Mechanical Engineering and in Automobile Engineering. On September 28, 1983 the Public Service Commission issued an advertisement inviting applications for 56 posts of Motor Vehicle Inspectors which were latter on increased to 102 posts. The advertisement specifically mentioned that the recruitment shall be made under the 1976 Rules and further stated that a candidate for selection must be holder of Diploma in Automobile Engineering or Mechanical Engineering; The candidates who were possessing such qualifications applied for selection to the post of Motor Vehicle Inspectors. The interviews were also held. There arose some dispute in regard to the reserved seats meant for "local candidates" and the matter went upto the High Court. The State Government in the mean-time amended the recruitment Rules vide notification dated May 4, 1987 and had omitted the qualification of Diploma in Mechanical Engineering for the post of Motor Vehicle Inspectors and, thus, only those candidates who were holders of Diploma in Automobile Engineering became exclusively eligible for appointment to the post of Motor Vehicle Inspectors and the remaining candidates holding Diploma in Mechanical Engineering ceased to be eligible. Because of the reason that earlier some candidates holding the Diploma in Mechanical Engineering had been selected but no appointments have been made, certain persons challenged the selection, (for quashing the selection), under the amended Rules only, which was contested by the respective parties before the Service Tribunal. The Tribunal had allowed their application and because of the amended Rules had quashed the selection of the candidates possessing Diploma in Mechanical Engineering which was challenged before the Hon'ble Supreme Court under Article 32 of the Constitution. It was held by the Hon'ble Supreme Court that in the absence of any express provision contained in the amending Rules it must be held to be prospective in nature and cannot take away or impair the right of the candidates holding Diploma in Mechanical Engineering. The Hon'ble Supreme had observed as under:
In the absence of any express provision contained in the amending Rules it must be held to be prospective in nature. The Rules which are prospective in nature cannot take away or impair the right of candidates holding Diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment. In fact the entire selection in the normal course would have been finalised much before the amendment of Rules.
It was further held as under:
The above observations as relied by the Tribunal do not apply to the facts of the instant case as the advertisement issued by the Commission on September 28, 1983 was in accordance with the Recruitment Rules of 1976, validity of those Rules was not in question. The Rule prescribing qualification was amended after four years of the advertisement, therefore, the law laid down in Ramakrishna Rao case does not apply. The Tribunal committed error in ignoring the law laid down in, Calton case by placing reliance on the observations of this Court in Ramakrishna Rao case. In our view the principles laid down in Calton case are fully applicable to the instant case.
16. It was further held in the aforesaid case as under:
In this background the Court made observations that a candidate merely by making application does not acquire any right to the post. It is true that a candidate does not get any right to the post by merely making an application for the same, but a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment Rules. If a candidate applies for a post in response to advertisement issued.by Public Service Commission in accordance with recruitment Rules, he acquires right to be considered for selection in accordance with the then existing Rules. This right cannot be affected by amendment of any Rule unless the amending Rule is retrospective in nature. In the instant case the Commission had acted in accordance with the then existing Rules and there is no dispute that the appellants were eligible for appointment, their selection was not in violation of the recruitment Rules. The Tribunal in our opinion was in error in setting aside the select list prepared by the Commission.
17. In A.P. Public Service Commission, Hyderabad and Anr. v. B. Sarat Chandra and Ors. (1990(4) S.L.R. 235), it has been held by the Hon'ble Supreme Court that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. It consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva-voce and preparation of list of successful candidates for appointment and if final stage of selection is delayed and more often is happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. It was held that it would be, therefore, unreasonable to construe the word "selection" only as the factum of preparation of the select list.
18. In Dr. Ram Shanker Asopa v. The State of Rajasthan and Ors. (D.B. Civil Writ Petition No. 1359 of 1988, decided on 18.1.1989) a requisition for filling up 21 posts was sent by the State Government to the Rajasthan Public Service Commission in the month of June, 1987 as against the 43 temporarily posts created in the years 1985-86 (33 Posts) and 1986-87 (10 posts). Under the Rajasthan Medical and Health Service Rules, 1963, 50% of the Junior Specialists should be by promotion and 50% by direct recruitment. On 29.2.1988, 21 posts of Junior Specialists were again advertised against the direct recruitment quota. An amendment was effected from 7.1.1988 and the vacancies were to be determined on 1st April of every year. The question arose whether the vacancies which were determined upto 1.4.1987 should be filled up in accordance with the old Rules existing at that time prior to the amendment or to be filled up under the amended Rules or they are to be governed by the amended Rules. It was held by the Division Bench that because of the reason that the vacancies have been sent by State Government to the Rajasthan Public Service Commission in the month of January, 1987 and despite the withdrawal of the requisition by the Government, the Government was directed to request the Rajasthan Public Service Commission to go ahead with the selection as per the earlier requisition sent in the month of January, 1987. The Division Bench after relying on the judgments in A.A. Calton, Y.V. Rangaiah and P Ganeshwar Rao cases has given the following direction:
In the present case, for the vacancies relating to year 1985-86 and 1986-87 a requisition had already been sent by the State Government to the Rajasthan Public Service Commission in the month of January, 1987, on the basis of which the R.P.S.C. had issued an advertisement No. 2/87-88 (Anx. 6)and applications had been invited and even interviews letters had been issued but after the amendment of Rules, the requisition had been withdrawn on 18.5.88. The Government is directed to request the RPSC to go ahead with the selection as per the earlier requisition sent in the month of January 1987.
19. The respondents have relied on Jammu & Kashmir Public Service Commission, etc. v. Dr. Narinder Mohan and Ors. etc. etc. which related to regularisation of ad hoc appointments, wherein an argument was made that appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc or temporary employee. Ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee and he must be replaced only by a regularly selected candidate. The Court did not lay down as a general Rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made and the Hon'ble Supreme Court had upheld the judgment of the learned Single Judge directing the State Government to notify the vacancies to the Public Service Commission to advertise the vacancies and make recruitment of the candidates in accordance with the Rules. A suggestion was made by the counsel for adopting the chain system of recruitment by notifying each year's vacancies and for recruitment of the candidates found eligible for the respective years. It was observed by the Hon'ble Supreme Court that the Government need not immediately notify vacancies as soon as they arose. It is open as early as possible to inform the vacancies existing or anticipated to the PSC for recruitment and that every eligible person is entitled to apply for and to be considered of his claim for recruitment provided he satisfies the prescribed requisite qualifications.
20. Counsel for the respondents desires to seek support from this judgment but this judgment of the Hon'ble Supreme Court is of no assistance to the counsel for the respondents for the proposition in hand.
21. Counsel for the respondents has also relied upon a Division Bench judgment of this Court in Rajasthan Council of Diploma Engineers v. The State of Rajasthan (WLR 1991 (S).Raj. 487), wherein it was held that in view of the absence of any provision regarding unfilled vacancies of earlier years falling in direct recruitment quota, it cannot be applied for year-wise selections in case of direct recruitment with the same rigour as it is to be applied in the case of vacancies of earlier years in respect of promotion quota. The Division Bench had observed as under
60. Thus we hold as under:
(1) Rule 9 of the Rajasthan Service of Engineer (Building and Roads Branch) Rules, 1954 as amended vide notification No. F. 7(1) (B&R) A-11/81 dated 21.12.81 with effect from 1.4.1981 is mandatory, but in view of the absence of any provision regarding unfilled vacancies of earlier years filling in direct recruitment quota, it cannot be applied for year wise selections in case of direct recruitment with the same rigour as it is to be applied in the case of vacancies of earlier years in respect of promotion quota.
(2) The total exclusion of the candidates eligible at the time of holding direct recruitment against the unfilled vacancies of earlier years will be more vulnerable to Article 14 & 16 of the Constitution in comparison to restricting the direct recruitment to the candidates eligible in the earlier years against the vacancies of such years, yearwise.
22. The counsel has also relied upon an unreported judgment of the Hon'ble Supreme Court in Rajasthan Public Service Commission v. Smt. Anand Kanwar and Ors. (Civil Appeal No. 52 of 1993, decided on 8.2.1995) wherein it has been held that the eligibility of a candidate has to be determined on the basis of the terms and conditions of the advertisement in response to which the candidate applied and nothing was shown on the record that the State Government was in any manner negligent or at fault in not making the direct recruitment during the period 1983-89. The facts in Smt. Anand Kanwaar's case are not applicable in the present case. In Smt. Anand Kanwaar's case the vacancies were not at all advertised for the years 1983-89 and a grouse was made that because of the on-advertisement of the vacancies she had become over age. The law laid down in Smt. Anand Kanwar's case is distinguishable on facts but still in a way it helps the petitioner to the effect that the eligibility of the candidate has to be determined on the basis of the terms and conditions of the advertisement in response to which the candidate has applied.
23. Dealing with the case in hand, admittedly, at the relevant time the Rules of 1986 were applicable which Rules are still applicable. Rule 8 of the Rules of 1986 provides determination of vacancies as soon as possible after 1st April every year the actual number of vacancies occurring as on 1st April and also vacancies anticipated during the financial year. Rule 8 of the Rules of 1986 is reproduced as under:
8. Determination of vacancies. (1)(a) Subject to the provisions of these Rules the Appointing Authority shall determine as soon as possible after 1st April every year the actual number of vacancies occurring as on 1st April and also vacancies anticipated 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) X X X X
(d) X X X X
24. After determination of the vacancies of the relevant years right upto 1992-93 under the Rules of 1986 the Government had advertised 23 vacancies of Assistant Director (Junior) on the qualifications prescribed therein. The petitioner who was eligible as per the Rules of 1986 had applied as one of the candidates. The selection was kept pending for two years when ultimately in November, 1995 some amendment as reproduced, were inserted but the said amendment had not changed the procedure of determination of vacancies as provided under the Rules of 1986. Only by way of amendment the nomenclature was changed and certain alternative qualifications were also prescribed in the amendments. Rules of 1986 were otherwise kept intact but with amended provisions aforesaid, instead of proceeding with the selection as per advertisement Annex. P. 1, the Government stayed the selection procedure and issued a fresh advertisement in 1996 when the petitioner had become over age under the 1986 Rules which were still applicable.
25. The contention of the counsel for the respondents that the petitioner should have applied under the new advertisement and should have taken the examination and for the reason he had not applied under the fresh advertisement, he cannot be allowed to raise his finger now against the non-consideration of his candidature. The contention of the counsel for the respondents is straight away to be rejected. Admittedly under the fresh advertisement the petitioner had become ineligible because of the age factor and, could not have applied. The petitioner has prayed that for the reason that the vacancies relate to the years prior to the amendment of the Rules and the vacancies had been determined under Rule 8 of the Rules of 1986 which rules were still applicable, and the process of selection had started by issuance of the advertisement Annex. P/1 for which he had applied, the respondents are bound to continue the process of selection against the vacancies as advertised vide Annex. P/1.
26. The contention of the counsel for the petitioner has force as has been held by a number of decisions of the Apex Court as discussed above, the process of, selection starts immediately after issuance of the advertisement. Admittedly as per Annex. P/l the process had stalled for selection to the posts on the prescribed qualifications under the prevalent Rules of 1986. The posts advertised as per Annex. P/l were bound to be filled in under the Rules of 1986 and the amendment brought in 1995 shall not affect the vacancies or advertisement or filling up the vacancies as per Annex. P/1 which vacancies had occurred prior to the coming into force of the amendment which did not materially affect the procedure of 1986 Rules. It has been authoritatively held by various Courts and also by the Division Bench of this Court that the vacancies when determined for a particular year; advertised under the Rules as prevalent at that time, the selection process when started, are to be filled up by process of selection under the Rules and the amendment, if any, subsequent to the advertisement shall be prospective and no right which had accrued to the candidates to be considered in response to the advertisement Annex. P/1 under the Rules of 1986 can be taken away by even depriving them of the right of consideration or eligibility.
27. It may also be noticed that at no stage of time the advertisement Annex. P/l was ever cancelled or superseded by the Commission even though the Government had been writing to the Commission to stay the selection on the contemplated amendment of the Rules but that was only an inter department communication and the public at large including the candidates who had applied under Annex. P/1 were never informed of cancellation or supersession of the advertisement Annex. P/1. Even the fresh advertisement under the new Rules Annex. P/4 does not specify or mention about any supersession of the earlier advertisement.
28. From the discussion above and in view of the law laid down by the Hon'ble Supreme Court, there is no escape from the conclusion so as to hold that for the vacancies which have been determined for the years 1986-87 to 1992-93 under Rule 8 of the Rules of 1986 and advertised vide advertisement Annex. P/1 under the Rules of 1986 which Rules are still applicable and the selection process once started, could only be filled up under the unamended Rules of 1986 and on the qualifications prescribed therein and the petitioner or any other candidates who might have applied in response to advertisement Annex. P. 1 were eligible to be considered and should have been considered. It is further held that the amendment of Rules shall not apply to the vacancies advertised under the Rules of 1986 and the amendment shall apply only prospectively. No rights of the candidates who had applied in response to the advertisement Annex. P. 1 could be taken away as to debar them from consideration as they, did fall under the eligibility zone as per Annex. P. 1.
29. The petition is to succeed on the grounds mentioned above with a writ of mandamus to be issued against the respondents No. 1 and 2 to consider the name of the petitioner as per the advertisement Annex. P/l issued under the Rules of 1986.
30. We have been given the understanding that so far no appointments have been made nor any final selection has been made under the advertisement Annex. P/4. In such situation, the respondents shall take all necessary steps for affording an opportunity to the petitioner or even to all those candidates who might have applied in response to the advertisement Annex. P/l issued under the Rules of 1986 to appear in the test etc. as per the regulations of the Commission for the vacancies advertised vide advertisement Annex. P/l and determined up to 1992-93 for the post of Assistant Director (Junior) now redesignated as Marketing Officer. After completing this exercise the Rajasthan Public Service Commission may draw a new merit list in accordance with the directions given above.
31. The order of the learned Single Judge is set aside. The special appeal is allowed and consequently the writ petition also stands allowed with the directions as numerated above with a cost of Rs. 2000/-.