Uttarakhand High Court
Pankaj Kumar vs State Of Uttarakhand And Others on 20 August, 2019
Equivalent citations: AIRONLINE 2019 UTR 791
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 983 of 2018
Pankaj Kumar ...Appellant
Vs.
State of Uttarakhand and others ...Respondents
Mr. Tapan Singh, learned counsel for the appellant
Mr. Paresh Tripathi, learned Chief Standing Counsel with Mr. Pradeep Joshi and Mr. Anil Bisht,
learned Standing Counsel for the State.
Mr. Amar Shukla, learned counsel for the private respondent.
AND
Special Appeal No. 683 of 2018
Secretary Department of Education and others ...Appellants
Vs.
Committee of Management Sri Guru Ram
Rai Inter College Mothrawala, Dehradun ...Respondent
Mr. Paresh Tripathi, learned Chief Standing Counsel with Mr. Pradeep Joshi and Mr. Anil Bisht,
learned Standing Counsel for the State/appellant.
Mr. Navnish Negi, learned counsel for the respondent.
AND
Special Appeal No. 763 of 2018
Committee of Management, Children Academy
Junior High School, Srinagar ...Appellant
Vs.
State of Uttarakhand and others ...Respondents
Mr. M.S. Bhandari learned counsel for the appellant
Mr. Paresh Tripathi, learned Chief Standing Counsel with Mr. Pradeep Joshi and Mr. Anil Bisht,
learned Standing Counsel for the State.
AND
Special Appeal No. 951 of 2018
Secretary Department of Education ...Appellant
Vs.
Committee of Management,
Intermediate College, Bisabajerh ...Respondent
Mr. Paresh Tripathi, learned Chief Standing Counsel with Mr. Pradeep Joshi and Mr. Anil Bisht,
learned Standing Counsel for the State.
Mr. Rajesh Joshi, learned counsel for the respondent.
2
AND
Special Appeal No. 1004 of 2018
Rajveer Singh ...Appellant
Vs.
State of Uttarakhand and others ...Respondents
Mr. Tapan Singh, learned counsel for the appellant
Mr. Paresh Tripathi, learned Chief Standing Counsel with Mr. Pradeep Joshi and Mr. Anil Bisht,
learned Standing Counsel for the State.
AND
Special Appeal No. 27 of 2019
State of Uttarakhand and others ...Appellants
Vs.
Meenakshi Rawat and another ...Respondents
Mr. Paresh Tripathi, learned Chief Standing Counsel with Mr. Pradeep Joshi and Mr. Anil Bisht,
learned Standing Counsel for the State.
Mr. Subhash Upadhdya, learned counsel for the respondent.
AND
Special Appeal No. 221 of 2019
Secretary Department of Education ...Appellant
Vs.
Committee of Management Maha
Devi Kanya Pathshala ...Respondent
Mr. Paresh Tripathi, learned Chief Standing Counsel with Mr. Pradeep Joshi and Mr. Anil Bisht,
learned Standing Counsel for the State.
Mr. Navnish Negi, learned counsel for the respondent.
AND
Special Appeal No. 236 of 2019
Secretary Department of Education and Others ...Appellants
Vs.
Committee of Management
Sri Guru Ram Rai Inter College, Sahaspur ...Respondent
Mr. Paresh Tripathi, learned Chief Standing Counsel with Mr. Pradeep Joshi and Mr. Anil Bisht,
learned Standing Counsel for the State.
Mr. Navnish Negi, learned counsel for the respondent.
3
AND
Special Appeal No. 298 of 2019
State of Uttarakhand and others ...Appellants
Vs.
Committee of Management
Aditya Nath Jha Inter College ...Respondent
Mr. Paresh Tripathi, learned Chief Standing Counsel with Mr. Pradeep Joshi and Mr. Anil Bisht,
learned Standing Counsel for the State.
Mr. Anil Kumar Joshi, learned counsel for the respondent.
AND
Special Appeal No. 528 of 2019
Alka Chauhan ...Appellant
Vs.
State of Uttarakhand and others ...Respondents
Ms. Charanjeet Kaur, learned counsel for the appellant
Mr. Paresh Tripathi, learned Chief Standing Counsel with Mr. Pradeep Joshi and Mr. Anil Bisht,
learned Standing Counsel for the State.
Judgment Reserved : 17.07.2019
Judgment Delivered : 20.08.2019
Chronological list of cases referred :
1. (1997) 10 SCC 419
2. (1983) 3 SCC 284
3. (1983) 3 SCC 33
4. (1990) 1 SCC 411
5. (1990) 3 SCC 157
6. (1999) 1 SCC 544
7. (2015) 8 SCC 410
8. (1990) 2 SCC 669
9. (2007) 10 SCC 402
10. (2011) 6 SCC 725
11. (1998) 4 SCC 202
12. (1997) 3 SCC 59
13. (2017) 3 SCC 646
14. AIR 2019 SC 675
15. AIR 2019 SC 2331
16. (2016) 4 SCC 179
17. (1994) 2 SCC 630
18. (1994) 6 SCC 151
19. AIR 1988 SC 2068
20. (1990) IILLJ 456 SC
21. (1996) 11 SCC 242
22. (1996) 3 SCC 139
4
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J.
The question which arises for consideration, in this batch of the Special Appeals, is common. It is whether the amendment made to the 2009 Regulations, by the notification dated 04.01.2017, would apply to selection to the posts of Lecturers and Assistant Teachers (L.T.) in private aided schools, (which, though administered by a Committee of Management, are being extended financial aid by the State Government), for which an advertisement was issued prior thereto; and with respect to which the selection process was underway, at different stages, before 04.01.2017.
2. In Special Appeal Nos. 983 of 2018 and 1004 of 2018, applications were invited for appointment to the posts of Lecturers and Assistant Teachers (L.T.); an advertisement was issued on 03.05.2016; and call letters were issued inviting the short-listed candidates to appear in the interview scheduled to be held on 28.09.2016 to fill up 15 posts of Assistant Teachers (L.T. Grade) and two posts of Lecturers. While appointment orders were initially issued on 18.10.2016, with respect to four posts, and with respect to nine other posts on 20.12.2016, interviews could not be held to fill up the remaining four posts (three posts of Assistant Teachers (L.T.) and one post of Lecturer). Fresh call letters were, therefore, issued on 14.03.2007 calling upon the short-listed candidates to participate in the interview.
3. While matters stood thus, the Additional Chief Secretary, Government of Uttarakhand informed the Director, Secondary Education of Schools, by his letter dated 29.03.2017, that the selection process, relating to appointment in non-Government aided Schools, was amended pursuant to the Government order dated 04.01.2017; the Chief Education Officers were not making appointment as per the amended regulations, but were following the old procedure which was not appropriate. The Additional Chief Secretary directed that the procedure, for appointment in non-Government Schools, be stopped with immediate effect, and information be given to the Government, along with details of the appointment made since 01.01.2017 till date, and this order should be enforced strictly.
54. The petitioners, in SPA No. 983 of 2018 and 1004 of 2018, were in fact issued call letters to appear for an interview on 28.09.2016, but the interview could not be conducted because of the absence of the subject examiners with respect to the four remaining posts; and, consequently, fresh call letters were issued on 14.03.2017 for the unfilled four posts [one for Lecturer and the other three for Assistant Teacher (L.T.)]. While the earlier call letter dated 28.09.2016 was issued before the 2017 amendment to the 2009 Regulations came into force, the subsequent call letters issued on 14.03.2017 were after the 2017 amendment, to the 2009 Regulations, came into force on 04.01.2017.
5. In Special Appeal No. 27 of 2019, the advertisement was issued on 27.09.2016. Call letters were issued to eligible candidates on 03.12.2016 informing them that a interview would be held on 21.12.2016. The interviews were, however, postponed due to non-availability of the subject experts and, as a result, fresh call letters were issued on 02.01.2017 informing the petitioners that interviews would be held on 16.01.2017. In this case, both the earlier call letter dated 03.12.2016 and the subsequent call letters dated 02.01.2017 were issued prior to the 2017 amendment, to the 2009 Regulations, coming into on 04.01.2017. However, by time, interviews were held on 16.01.2017, the 2017 amendment had come into force.
6. In Special Appeal No. 528 of 2019, an advertisement was issued on 13.12.2016 inviting applications for three posts of Assistant Teacher (L.T.). While applications were received by the District Education Officer on 21.12.2016, nothing happened thereafter till the 2017 amendment came into force on 04.01.2017.
7. The other Special Appeal Nos. 221 of 2018, 236 of 2018, 298 of 2018, 683 of 2018, 763 of 2018 and 951 of 2018 have all been filed by the Committees of Management. When we asked Mr. Navnish Negi, Mr. Anil Kumar Joshi, Mr. Rajesh Joshi, and Mr. M.S. Bhandari, learned counsel appearing on behalf of these private aided institution, how they were aggrieved by the 2017 amendment to the 2009 Regulations, all of them submitted that, since there was an acute shortage of Lecturers/Assistant 6 Teachers (L.T.) in their respective institutions, any delay in completing the process of selection, as a result of the 2017 amendment to the 2009 Regulations, would cripple their academic faculty.
8. While there is, undoubtedly, an urgent need to fill up the vacant sanctioned posts, it matters little, for the Committee of Management of these institutions, whether the process of selection is undertaken under the pre-amendment 2009 Regulations, or post the 2017 amendment to the 2009 Regulations. We see no reason, therefore, to examine the validity/applicability of the 2017 amendment to the 2009 Regulations, to the ongoing process of selection, at their behest.
9. We shall, therefore, confine our examination, in this batch of cases, only to the challenge put forth on behalf of candidates who have either applied pursuant to the advertisement, or have participated in the process of selection which was underway, prior to the 2017 amendment, to the 2009 Regulations, coming into force on 04.01.2007.
10. Regulation 10(d) of Chapter (2) of the 2009 Regulations was amended, by the notification dated 04.01.2017, mainly regarding the quality point marks to be awarded for appointment as teachers of these Institutions. Appendix-C of the pre-amended 2009 Regulations, in terms of which the advertisements in all these cases were issued, prescribed a total of 200 marks of which 175 were set apart as quality marks for academic qualifications, experience and co-curricular activities; and the maximum marks, which could be given by the Selection Committee in the interview, was 25. While the marks for teaching experience under the pre-amended Regulations was 25, 10 quality marks were prescribed for Ph.D/D. Lit in the concerned subject, 5 quality marks for a Post Graduate degree, and 15 quality marks were set apart for co-curricular activities.
11. The 2017 amendment to the 2009 Regulations, however, brought about a change in the quality marks stipulated under different heads. Appendix-C was substituted and, instead, the maximum quality marks, on the basis of the academic qualifications, was prescribed as 80, the maximum marks to be given by the Selection Committee in the interview was fixed as 7 10 i.e. a total of 90 marks. From out of the total 80 quality marks for academic qualifications, 5 marks were prescribed for Ph.D/D. Litt, and 5 marks for M.Ed. Under the amendment regulations, no marks were prescribed for teaching experience or for co-curricular activities.
12. The petitioners, (all of whom had applied for the posts of Lecturers/Assistant Teachers (L.T.) pursuant to the advertisements issued by the Committees of Management of private aided institutions), have invoked the jurisdiction of this Court contending that the letter dated 29.03.2017 requiring the 2017 amendment to the 2009 Regulations, notified on 04.01.2017, to be applied for all appointments made after 04.01.2017, would have no application to cases where the advertisement, inviting applications for being considered for appointment to the post of Lecturers/Assistant Teachers (L.T.), was issued prior to 04.01.2017 when the amended Regulations came into force; and, in some of which, the process of selection had reached a stage where the short-listed candidates had already been called for interview.
13. Since the orders, in all these cases, either arose from the order passed in WPMS No. 1817 of 2017 and batch dated 09.10.2017, or orders passed in other writ petitions following this order, it would suffice for the disposal of these appeals to refer to the contents of the order in WPMS No. 1817 of 2017 dated 09.10.2017. In the said order, the learned Single Judge noted the contention urged by the learned counsel for the petitioners, (some of whom were committees of management and the others - individual applicants), that, since the process of selection had already been completed, the results should be announced. The learned Single Judge, thereafter, observed that the model code of conduct did not survive, and could not be a reason for stalling the selection process; since the Regulations were amended, after the process of making selection was initiated, it would work prospectively, and not retrospectively; and it would not act on such a selection process which had already been initiated.
14. After referring to the judgment of the Supreme Court, in State of Rajasthan Vs. R. Dayal and others[1], the learned Single Judge allowed 8 the writ petition. A writ of mandamus was issued to the respondent authorities directing that the process be completed, recommendations be given to the Education Authority, and the recommendation should be acted upon. The learned Single Judge made it clear that he had only observed that the model code of conduct would not come in the way; that did not mean that, if there was any other short-comings and irregularities in the selection process, the respondent authority was, in any manner, restrained from passing appropriate orders; and, however, the needful should be done as expeditiously as possible, preferably within a period of four weeks from the production of a certified copy of this order.
15. The submission, urged on behalf of the appellants-writ petitioners, by Mr. Subhash Upadhyay and Mr. Tapan Singh, learned Counsel for the petitioners, is that an advertisement, inviting applications from eligible candidates for direct recruitment to the posts of Lecturer/ Assistant Teacher (L.T.), can only be issued after approval of the District Education Officer; the applications received by the private aided institutions are required to be forwarded to the office of the District Education Officer; the applications are segregated there, and quality marks are awarded only by the department; on the basis of the quality marks secured by them, the applicants are required to be called for interview in the ratio of 1:7 i.e. the seven most meritorious candidates are to be called for interview for each post; in these cases, the entire exercise till this stage was completed even before the Regulations were amended from 04.01.2017; call letters had also been issued by them to the applicants calling upon them to participate in the interview; if the process were now to be undertaken afresh, on the basis of the newly prescribed quality marks, there is a distinct possibility of the appellants-applicants no longer being eligible to be called for interview; since they have a vested right to be considered on their being short listed for interview, and on call letters being issued to them to appear for an interview, their selection process should be completed only in terms of the pre-amended 2009 Regulations, and not in terms of 2017 amendment to the 2009 Regulations; except to state that the 2017 amendment to the 2009 Regulations should be applied for all appointments made after 04.01.2017, the impugned proceedings dated 29.03.2017 does not assign any 9 reason why the 2017 amendment should be applied even for selections, the process of which had commenced long before the 2017 amendment came into force on 04.01.2017, and which process had almost culminated prior thereto.
16. While Mr. Tapan Singh, learned counsel for the appellant-writ petitioner, would place reliance upon Y.V. Rangaiah Vs. J. Sreenivasa Rao and others[2]; A.A. Calton Vs. Director of Education & another[3]; and State of Rajasthan Vs. R. Dayal and others[1], Mr. Subhash Upadhyaya, learned counsel, would rely on P. Mahendran and others Vs. State of Karnataka and others[4]; N.T. Devin Katti and others Vs. Karnataka Public Service Commission and others[5]; Gopal Krushna Rath Vs. M.A.A. Baig & others[6]; and M. Surender Reddy Vs. State of Andhra Pradesh and others[7].
17. Ms. Charanjeet Kaur, learned counsel for the appellant in Special Appeal No. 528 of 2019, would submit that the learned Single Judge had erred in directing appointment orders to be issued only to those candidates, whose selection had been completed before the 2017 amendment to the 2009 Regulations were made w.e.f. 04.01.2017; on the other hand, in all such cases where an advertisement was issued before the amendment was notified on 04.01.2017, it is the pre-amended 2009 Regulations which would govern; in the present case, an advertisement was issued on 13.12.2016 for three post of Assistant Teacher (L.T.), and applications were received at the District Education Office on 21.12.2016; and, consequently, the pre- amended 2009 Regulations should alone be applied to such selection process. She would rely on A.P. Public Service Commission, Hyderabad and another Vs. B. Sarat Chandra and others[8].
18. On the other hand Mr. Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarkhand, would submit that though the order dated 29.03.2017 may not have specifically stated why the selection process, (in cases where no appointment orders were issued before 01.01.2017), should be undertaken in terms of the 2017 amendment which was notified on 04.01.2017, the object is to restrict the discretion of the Committee of 10 Management in awarding marks in the interview; no useful purpose would have been served in awarding marks for co-curricular activities which the pre amendment Regulations provided for; and since the Government has taken a conscious decision, as has been made clear in its letter dated 29.03.2017, to make appointment only in terms of the 2017 amendment to the 2009 Regulations, in all such cases where interview has not been held before 01.01.2017, it is the 2017 amendment which would govern the mode and manner of selection and appointment to the post of Lecturers/Assistant Teachers (L.T.) in private aided institutions; no vested right can be said to have accrued in favour of the candidates merely because call letters were issued to them; even if candidates have been selected, no right is conferred on them to claim appointment; it is always open to the competent authority, for just and valid reasons, not to appoint even the selected candidates; in the present case, candidates have only been called for interview; they have not even been subjected to interview; and, in the light of the law declared in several later judgements of the Supreme Court, reliance placed, on behalf of the applicants, on the earlier judgments of the Supreme Court is of no avail. Learned Chief Standing Counsel would rely on State of Punjab & Ors. Vs. Arun Kumar Aggarwal & Ors.[9]; Deepak Agrawal & Anr. Vs. State Of Uttar Pradesh & Ors.[10]; Rajasthan Public Service Commission Vs. Chanan Ram and another[11]; Dr. K. Ramulu and another Vs. Dr. S. Suryaprakash Rao and others[12]; State of Tripura and others Vs. Nikhil Ranjan Chakraborty and others[13]; Union of India & others Vs. Krishna Kumar & others[14]; State of Orissa & another Vs. Dhirendra Sundar Das & others[15]; and Richa Mishra Vs. State of Chhattisgarh and others[16].
19. Before examining the rival contentions, urged by learned counsel on either side, it is useful to take note of the relevant statutory provisions. Section 2(a) of the Uttaranchal School Education Act, 2006 (herein referred in short as the 'Act') defines "Board" to mean the Board of School Education. Section 2(l) defines "Management", in relation to any institution, to mean the committee of management constituted in accordance with the scheme of administration, if any, and includes the manager or other person vested with the authority to manage and conduct the affairs of the 11 institution. Section 2(m) defines "Prescribed" to mean prescribed by Regulations under this Act.
20. Section 5 relates to the establishment of the Board and, with effect from such date as the State Government may, by notification in the Official Gazette, appoint, there shall be a Board to be known as the Uttaranchal Board of School Education. Section 24 of the Act confers power on the Board to make Regulations and, thereunder, the Board of School Education may make regulations. Section 24 (2) stipulates that no regulation under Section 24(1) shall be made except with the prior approval of the State Government.
21. Section 36 of the Act prescribes the procedure for selection of teachers and, subject to the provisions of the Act, teachers of an institution are required to be appointed by the Committee of Management in the manner provided under Section 36. Section 36(2) stipulates that every post of a teacher of an institution shall, except to the extent prescribed for being filled by promotion, be filled up by direct recruitment after intimation of the vacancy to the District Education Officer, obtaining approval of the District Education Officer for advertising, and advertisement of the vacancy, containing such particulars as may be prescribed, in at least two daily newspapers having wide circulation in the State.
22. Section 36(3) of the Act stipulates that no person shall be appointed as a teacher in an institution, unless he possesses the qualifications prescribed by the Regulations. Section 36(4) stipulates that every application for appointment as a teacher of an institution, in pursuance of an advertisement published under Sub-section(2), shall be made to the District Education Officer, and shall be accompanied by such fee which shall be paid in such manner as may be prescribed. Section 36(5)(i) stipulates that, after receipt of applications under sub-section (4), the District Education Officer shall cause to be awarded, in respect of each such application, quality-point marks in accordance with the procedure and principles prescribed, and shall forward the applications to the Committee of Management. Section 36(5)(ii) provides that the applications shall be dealt with, the candidates shall be 12 called for interview, and the meeting of the selection committee shall be held, in accordance with the regulations.
23. Section 36(6) of the Act requires the Selection Committee to prepare a list containing, in the order of preference, the names, as far as possible, of three candidates for a post found by it to be suitable for appointment, and to communicate its recommendations together with such list to the committee of management. Section 36(7) stipulates that, subject to the provisions of sub-section (8), the Committee of Management shall, on receipt of the recommendations of the Selection Committee under sub- section (6), first offer appointment to the candidate who has been given the first preference by the Selection Committee and, on his failure to join the post, the candidate next to him in the list prepared by the Selection Committee under this Section, and on the failure of such candidate also, to the last candidate specified in such list. Section 36(8) requires the Committee of Management, where it does not agree with the recommendations of the Selection Committee, to refer the matter, together with the reasons of such disagreement, to the District Education Officer in the case of appointment to the post of teacher of an institution, and his decision is to be final. Section 36(9) stipulates that where no candidate, approved by the Selection Committee for appointment, is available a fresh selection shall be held in the manner laid down in Section 36. Section 36(10) stipulates that where the Director, in the case of appointment of teacher of an institution, is satisfied that any person has been appointed as a teacher, in contravention of the provisions of the Act, the Director shall, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary.
24. Section 37 relates to the constitution of selection committees and under Section 37(2), for the selection of candidates for appointment as a teacher, there shall be a selection committee consisting of the president or any member of the committee of management nominated by the committee by resolution in that behalf, who shall be the Chairman, the head of such institution, and three experts nominated by the District Education Officer 13 from persons, not belonging to the district in which the institution is situated, out of a panel of names prepared under this Section.
25. Regulation 10 of Chapter 2 of the 2009 Regulations prescribes the procedure for filling up the post, by direct recruitment, of a teacher of a recognized Inter-College, High School, Junior High School, Primary School. Clause (a) of Regulation 10 provides that, after determining the number of vacancies to be filled up through direct recruitment, and after taking such permission from the District Education Officer by the committee of management, the manager of the institution shall advertise the post in at least two daily news papers, which has wide circulation in the State. The pre-condition is that the list of newspapers should be prescribed by the District Education Officer after he obtains the sanction/ approval of the Additional Director of Education. It is mandatory to give an advertisement in two newspapers from amongst the prescribed list. In the advertisement, the form of vacancy (whether temporary or permanent), number of vacancies, details of posts (Principal or Headmaster, Lecturer, LT. Or BTC category teacher or the subject in which the Lecturer or teacher is required), pay and other allowances, requisite experience, minimum eligibility for the post and minimum age should be provided. The last date (which, ordinarily, should not be less than 3 weeks from the date of the advertisement) should be prescribed. The application, duly filled, should be sent through speed post only to the office of the District Education Officer.
26. Clause (a) of Regulation 10 further requires the advertisement to stipulate that the application form can be obtained, from the office of the District Education Officer, on payment of the prescribed fees. The manager of the institution should also send a copy of the advertisement to the concerned District Education Officer. Note (1) thereunder requires that, at the time of advertisement, the vacancies of the teachers available should be advertised. Note (2) stipulates that no new post should be advertised until and unless the management committee has taken due permission for its creation from the competent authority. Regulation 10 (d) provides that applications received should be numbered, and entered in the Register, maintained as per the prescribed format, in the office of the district 14 education officer, duly approved by the director; the details of the candidates, and the quality point marks obtained by them should be entered under the prescribed heads; every candidate should be allotted quality point marks as per the procedure prescribed in annexure (d), by the person employed by the district education officer, who should either be a working or a retired gazetted officer of the education department or a principal or a teacher of a degree college or university or retired head of the department of the University, and the same should be examined by the district education officer or any person nominated by him; the said applications should be collected by the manager of the institution from the office of the district education officer within three days from the completion of a five day period after the last date prescribed for receiving applications; in case, it is not done, then the district education officer should send the application to the concerned manager; and the manager is also required to maintain a similar register.
27. Regulation 10(d) also requires candidates to be selected on the basis of the quality point marks obtained by them. For each post, seven candidates are to be called for interview with the provision that the number of candidate can be increased, who obtain similar quality point marks within the first seven candidates. The District Education Officer, for the purpose of selection, is required to determine the date, time and place, and should send the information, at least two weeks prior, to the management committee through the manager. On receipt of information, the Manager should send information to the members of the selection committee, other than the subject experts. The candidates selected for interview should also be intimated by a call letter, sent through registered post, at least two weeks prior to the date of interview. The time, place and the date of interview should be specified.
28. The 2009 Regulations also provide that the selection committee should hold a meeting accordingly. The District Education Officer, as per Section 37 (1) or (2), should inform the subject expert about the name of the institution and the date, time and place, prior to the said date, for conducting interview. If, due to some unforeseen reasons, the subject expert is not 15 available then the District Education Officer should make arrangement of an expert from the waiting list. In the absence of two subject experts, the meeting of the Selection Committee should be postponed, and the next date should be fixed. In case the number of candidates is less than 3, then the interview should be postponed, and the candidates should be informed accordingly, and the next date should be fixed thereafter.
29. Regulation 10 (f) requires the management committee to prepare details of the candidates, and place them before the members of the selection committee. Regulation 10 (g) requires the selection committee to select candidates on the basis of the aggregate marks of the quality point marks, and the marks obtained by the candidates in the interview; for the said purpose, the marks obtained by the candidate as quality point marks, as provided in Chapter (d) and the marks given by the Selection Committee for interview (25 marks), would be taken into consideration; in case a candidate is provided more than 18 marks from 25, or less than 10 marks, then the member, providing such marks, should mandatorily give reasons.
30. We shall now take note of the law declared by the Supreme Court in the judgments relied upon on behalf of the petitioners. In A.A. Calton[3], Section 16-F(4) of the U.P. Intermediate Education Act, as it stood prior to August 18, 1975, stipulated that, where the recommendation made under sub-section (2) has been disapproved and the representation of the management, if any, under sub-section (3) has been rejected, the selection committee shall proceed to select and recommend another name for approval as provided under Section 16-E and 16-F; if the selection so made is again disapproved and the representation, if any, against the disapproval has not been accepted, the Regional Deputy Director, Education in case of a teacher may appoint any qualified person out of the list of the candidates applying for the vacancies and such appointment shall be final. After its amendment which came into force on 18.08.1975, Section 16-F(4) took away the power of the Director to make an appointment. While examining the application of this provision, to pending proceedings, the Supreme Court observed:-
16"...... 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....."
(emphasis supplied)
31. In Y.V. Rangaiah[2], Rule 4(a)(1)(i), of the Andhra Pradesh Registration and Subordinate Service Rules, stipulated that all first appointments to a service and all promotions in a service shall be made by 17 the appointing authority from a list of approved candidates, which list shall be prepared in the prescribed manner. The Rule also required that the list of approved candidates, for appointment by transfer, shall be prepared 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 the purpose of preparing the said list, the claims of as many eligible candidates as such authority considered necessary shall be considered. It is in this context that the Supreme Court observed:-
"......... Having heard the counsel for the parties, we find no force in either of the two contentions. 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-Register Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 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 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 posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules...."
(emphasis supplied)
32. In P. Mahendran[4], the dispute related to the selection and appointment of Motor Vehicle Inspectors. Recruitment to the said post was regulated by the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962. The prescribed minimum qualification was a diploma in automobile engineering or mechanical engineering. An advertisement was issued by the Karnataka Public Service Commission inviting applications for 56 posts of Motor Vehicle Inspectors, which was later increased to 102 posts. The advertisement specifically stated that the selection would be made in accordance with the Recruitment Rules, 1976, and candidates for selection must be holders of diploma in automobile engineering or mechanical engineering. The appellants, who were holding 18 diploma in mechanical engineering, along with others applied for selection to the post of motor vehicle inspectors. The Commission, after scrutiny of the application forms, issued letters for interview to the suitable candidates, and commenced the exercise of holding interviews in August, 1984. However, certain candidates were not interviewed as they had competed for selection against seats reserved for 'local candidates'. On the ground that they were not entitled to be treated as 'local candidates', as they had not actually worked as 'local candidates' in the post of Motor Vehicle Inspectors, other Candidates, who claimed appointment to the reserved seats as 'local candidates', had approached the Karnataka High Court, and an interim order was passed which resulted in the selection not being completed. The interim order was later modified by the High Court, and the Commission was permitted to proceed with the selection, subject to the result of the Writ Petition. The Commission resumed interviews again, completed the same by June 2, 1987, and declared the result of the selection on 22.06.1987. In the meanwhile, the Government of Karnataka had amended the recruitment rules by a notification issued in May, 1987 omitting the qualification of diploma in mechanical engineering for the post of Motor Vehicle Inspectors. Consequent to the amendment of the Rules, only diploma holders in automobile engineering were eligible for the post of Motor Vehicle Inspectors, and candidates who had completed their Diploma in Mechanical Engineering ceased to be eligible for selection and appointment to the post of Motor Vehicle Inspectors. Some of the candidates, who were unsuccessful in the selection held by the Commission, approached the Karnataka Administrative Tribunal. The Tribunal held that, after amendment of the Recruitment Rules in May, 1987, the Commission could not make selection or determine the result on the basis of the Rules which existed prior to May 14, 1987; and candidates, holding diploma in mechanical engineering, ceased to be eligible for appointment to the post of Motor Vehicle Inspectors with effect from the date of publication of the amending Rules. It is in this context that the Supreme Court observed:-
"...... It is well-settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing 19 rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision. or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment. Moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter........"
(emphasis supplied)
33. After referring to A.A. Calton[3], the Supreme Court further held that selection and appointment could not be held to be illegal as the process of selection had commenced in 1983 which had to be completed in accordance with the law as it stood at the commencement of the selection; and the amended Rule could not be applied to invalidate the selection made by the Commission. The Supreme Court also referred to Y.V. Rangaiah[2] and held that the decision did not lay down anything which was contrary to the view taken in A.A. Calton[3].
34. In B. Sarat Chandra[8], the A.P. Police Service Rules, 1966 prescribed the minimum as well as the maximum age for appointment as deputy superintendent of police. Candidates were required to have completed 21 years on the first day of July of the year in which the selection was made, and not to have completed 26 years as on that day. The Tribunal, while construing this Rule, had observed that, according to the procedure, the process of selection begins with the issue of the advertisement and culminates in forwarding the list to the appointing authority; the essence of the process lies in the preparation of the list; a selection can be said to have 20 been done only when the list is prepared; and, in this view, the eligibility of the candidates as to age should be determined at this stage.
35. It is in this context that the Supreme Court observed:-
".........If the word 'selection' is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, 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. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it 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. The date to attain the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. It would be, therefore, unreasonable to construe the word selection only as the factum of preparation of the select list. Nothing so bad would have been intended by the Rule making authority............"
(emphasis supplied)
36. The Supreme Court, in N.T. Devin Katti[5], held:-
".........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 21 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......."
(emphasis supplied)
37. In R. Dayal[1], a Departmental Promotion Committee was convened on 13.04.1995 to select nine candidates to fill up nine existing and anticipated vacancies. Nine candidates were appointed including respondents 12 and 13. The other respondents questioned their appointment. Rule 9 of the Rajasthan Service of Engineers (Building and Roads Branch) Rules, 1954 (as amended) required the appointing authority to determine, as on the first day of the financial year, i.e, commencing from 1st of April of the ensuing year, and ending with 31st March of successive year, the number of vacancies, actual or anticipated, occurring during the financial year. They were required to be considered by the DPC constituted in that behalf as per the criteria prescribed in Rule 23 of the Rules. Consequently, a DPC was constituted to consider the claims of all the eligible candidates, as per the 22 Rules which then existed, for the nine existing and anticipated vacancies. It was contended on behalf of the respondents, relying on the judgment of the Supreme Court, in Y.V. Rangaiah[2], that any appointment should be consistent with the existing Rules. It is in this context that the Supreme Court observed:-
"......It is not in dispute and cannot be disputed that while selecting officers, minimum requisite qualifications and experience for promotion specified in the relevant column, should be taken into consideration against vacancies existing as on 1st April of the year of selection. But since the Rules came to be amended and the amendment became effective with immediate effect and Clause (11-B) of Rule 24-A indicates that options have been given to the Government or the appointing Authority, as the case may be, to revise the select list as existing as per the law as on the date of the appointment or as may be directed by a competent court, selection is required to be made by the concerned DPC. An appointment made, after selection as per the procedure, to the vacancies existing prior to the amendment, is valid. But the question is: whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore? This Court has considered the similar question in paragraph 9 of the judgment above cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in accordance with the law existing as on the date when the vacancies arose. Undoubtedly, the selection came to be made prior to the amendment of the Rules in accordance with law then existing since the anticipated vacancies also must have been taken into consideration in the light of Rule 9 of the Rules. But after the amended Rules came into force, necessarily the amended Rules would be required to be applied for and given effect to. But, unfortunately, that has not been done in the present case. The two courses are open to the Government or the appointing authority, viz., either to make temporary promotions for the ensuing financial year until the DPC meets or in exercise of the power under Rule 24-A(11- B), they can revise the panel already prepared in accordance with the Rules and make appointments in accordance therewith......."
(emphasis supplied)
38. In Gopal Krushna Rath[6], the essential qualification, prescribed in the advertisement, included ten years experience of teaching 23 and/or research. The assessment chart of the candidates was prepared by the Syndicate on 25.07.1991. Interviews were, thereafter, held on 11.05.1992 by the duly constituted selection committee which selected and appointed the appellant as Professor. His appointment was challenged on the ground that the guidelines prescribed by the University Grants Commission were changed w.e.f. 19.09.1991, in terms of which, ten years' experience now prescribed was in post-graduate teaching and/or research; and the respondent did not possess ten years' experience of teaching at the post-graduate level. It is in this context that the Supreme Court observed:-
"....... It is an accepted position that on the date of the advertisement and on the last date prescribed for the receipt of applications, the qualification prescribed by the University Grants Commission was 10 years' experience of teaching and/or research. Therefore, the advertisement also prescribed the same qualification. The appellant possessed that qualification. Even on the date when the Syndicate prepared an assessment chart, the position was the same. It was only thereafter, on 19-9-91 that the new qualification regarding ten years' teaching experience at the post graduate level came into effect.
When the selection process has actually commenced and the last date for inviting applications is over, any subsequent change in the requirement regarding qualifications by the University Grants Commission will not affect the process of selection which has already commenced. Otherwise it would involve issuing a fresh advertisement with the new qualifications. In the case of P. Mahendran v. State of Karnataka :AIR 1990 SC 405 this Court has observed:
"It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect.
The Supreme Court further observed:
"Since the amending rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover , as the process of selection had already commenced when the amending Rules came into force , the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment..." (emphasis supplied)
39. In M. Surender Reddy[7], the Supreme Court held that the State Government cannot pass any order amending a procedural law, 24 regarding reservation in the matter of selection to posts, with retrospective effect, once the procedure of selection starts.
40. Before examining the rival contentions urged by learned counsel on either side, it is useful to also take note of the law declared by the Supreme Court in the judgments relied upon on behalf of the respondents. In J&K Public Service Commission and others Vs. Dr. Narinder Mohan and others[17], the Supreme Court considered the question of interruption of the recruitment process, undertaken earlier by the recruiting agency, and observed that the process of selection against existing and anticipated vacancies did not create any right to be appointed to the post which can be enforced by a mandamus.
41. In State of M.P. and others Vs. Raghuveer Singh Yadav and others[18], the question which arose for consideration was whether the State could change the qualifications for appointment during the process of recruitment which had not resulted in any final decision in favour of any candidate. The Supreme Court held that the State had the power to prescribe qualification for recruitment; pursuant to the amended Rules, the Government had withdrawn the earlier notification and wanted to proceed with the recruitment afresh; this was not a case of any accrued right; candidates who had appeared for the examination, and had passed the written examination, had only a legitimate expectation to be considered according to the rules then in vogue; the amended rules had only prospective operation; the Government was entitled to conduct selection in accordance with the changed rules and make final recruitment; no candidate acquired any vested right against the State; and the State was, therefore, entitled to withdraw the notification, and to issue a fresh notification in that regard on the basis of the amended Rules.
42. In Dr. K. Ramulu[12], the Supreme Court held:-
".........The same ratio was reiterated in U.O.I. and Ors. v. K.V. Vijeesh : [1996] 2 SCR 1077, paras 5 and 7. Thus it could be seen that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date.......25
As a proposition of law, there is no dispute and cannot be disputed. But the question is : whether the ratio in Rangaiah 's case would apply to the facts of this case? The Government therein merely amended the Rules, applied amended Rules without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date the new Rules came into force. It is true, as contended by Mr. H.S. Gururaja Rao, that this Court has followed the ratio therein in many a decision and those cited by him are P. Ganeshwar Rao and Ors. v. State of A.P. and Ors.: AIR 1988 SC 2068 , P. Mahendranath v. State of Karnataka: AIR 1990 SC 405 , A.A. Calion v. Director of Education: (1983) ILLJ 502 SC , N.T. Dev v. Karnataka PSC: (1990) IILLJ 456 SC , Ramesh Kumar Choudha and Ors. v. State of M.P. and Ors.: (1996) 11 SCC 242. In none of these decisions, situation which has arisen in the present case had come up for consideration......
......It is seen that since the Government have taken a conscious decision not to make any appointment till the amendment of the Rules, Rule 3 of the General Rules is not of any help to the appellant. The ratio in the case of Ramesh Kumar Choudha and Ors. v. State of M.P. and Ors.: (1996) 11 SCC 242 is also not of any help to the respondent. Therein, this Court had pointed out that the panel requires to be made in accordance with the existing Rules and operated upon. There cannot be any dispute on that proposition or direction issued by this Court. As stated earlier, the Government was right in taking a decision not to operate Rule 4 of the General Rules due to their policy decision to amend the Rules........"
(emphasis supplied)
43. In Chanan Ram[11], an advertisement was issued by the Rajasthan Public Service Commission on 05.11.1993 for recruitment to 23 posts of Assistant Directors (Junior). The last date for inviting applications, as mentioned in the advertisement, was 31.12.1993. Three days prior to the said date, the State of Rajasthan, by its communication dated 28.12.1993, asked the Rajasthan Public Service Commission not to go ahead with the said recruitment as the relevant Rules, pertaining to recruitment to the posts concerned, were sought to be amended. As a result, after expiry of the last date for inviting applications from eligible candidates for being considered for appointment to the advertised posts, the proceedings remained dormant and the State Public Service Commission did not proceed further in the matter. The petitioner had applied for the post pursuant to the advertisement. On 19.04.1995, the State of Rajasthan amended the service Rules and, 26 consequent to the amendment, withdrew its earlier requisition dated 01.11.2013, and cancelled the earlier advertisement. On a fresh requisition being issued under the amended Rules, a fresh advertisement was issued by the Rajasthan Public Service Commission. The petitioner applied once again and, instead of appearing in the written test, he approached the Rajasthan High Court contending that he was entitled to be considered in the light of the earlier advertisement. It is in this context that the Supreme Court observed:-
"..........The decisions of this Court relied upon by the Division Bench of the High Court in taking the view that old vacancies in the posts had to be filled in pursuant to the old recruitment rules would become ex facie inapplicable. Once it is held that the old vacancies were in posts which no longer existed after April 1995, there remained no occasion to consider whether these old vacancies could be filled in by applying earlier rules of recruitment to the very same posts. It is true that old vacancies were carried forward and got merged along with three more vacancies and became 26 vacancies for the newly created posts of Marketing Officers, but that does not mean that still the earlier 23 vacancies remained existing under the Rules for appointing eligible persons to the 23 erstwhile vacant posts of Assistant Directors (Junior). There were no such posts after 1995 in the cadres of Rajasthan Agriculture Marketing Service, as seen earlier. Those vacancies were carried forward and got merged with the further vacancies in the newly created posts of Marketing Officer. But all the 26 vacancies, therefore, after April 1995 had to be treated to be vacancies in the newly created posts of Marketing Officers and these vacancies had to be filled in necessarily as per Rule 17 by issuing fresh advertisement for filling up these newly created 26 posts of Marketing Officers and that is precisely what was done by the Rajasthan Public Service Commission by issuing fresh advertisement dated 08th January 1996.
In the case of Y. V. Rangaiah and others etc. v. J.
Sreenivasa Rao and others,: (1983) II LLJ 23 SC a Bench of two learned Judges of this Court had to consider the question about applicability of Rule 4 (a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules which laid down the procedure for appointment by promotion to the posts in that service. Considering the said rules it was observed that when the said rules enjoined the appointing authority to prepare panels for selecting promotees year wise in old vacancies to be filled in by promotion if panels were not prepared at appropriate time the authorities could be directed to prepare such panels and while preparing those panels for the earlier years the then existing statutory rules of recruitment had to be applied. The said decision obviously cannot apply on the facts of the present case for two reasons. Firstly, this is not a case of 27 promotion but direct recruitment to the advertised posts and secondly the scheme of the A.P. Rules considered by the Court in that case cast a statutory duty and obligation on the part of the appointing authority to prepare panels of eligible candidates year wise in connection with the vacancies then existing and if they had failed in that statutory duty and obligation they could legitimately be called upon to carry out that obligation and while doing so for preparing the panels for the earlier years the relevant rules then existing had to be kept in view. But even apart from these two distinguishing features one additional salient aspect of the matter is that these panels were to be prepared for filling up vacancies by promotion to the posts of Sub-Registrars Grade II. The said posts continued to exist in the cadre and the only question was how the vacancies in the said existing posts had to be filled in by promotion by preparing panels for the relevant years. As we have seen earlier in the present case the old posts of Assistant Directors (Junior) had ceased to exist. Therefore, there remained no occasion for proceeding with recruitment to such non-existing posts pursuant to the earlier stale and infructuous advertisement of 05th November 1993 Annexure P-1........"
(emphasis supplied)
44. In Arun Kumar Aggarwal[9], the Punjab Service of Engineers Class II (Irrigation Branch) Rules, 1941 were repealed and substituted by the Punjab Irrigation Department (Group 'A') Service Rules, 2004, since the earlier 1941 Rules did not provide for a channel of promotion for diploma- holders, and the power of relaxation was alone conferred on the Government to admit the promotion of a member, of the Overseas Engineering Service or Irrigation Branch, of 'outstanding merit'. However, under the 2004 Rules, the diploma holders were entitled to 25% out of the 40% promotional quota. The criteria of outstanding merit was done away with, and the new criteria was promotion on the basis of seniority-cum-merit. While it was contended on behalf of the State Government that, consequent on the repeal of the old Rules, they ceased to be in existence and the instructions issued in terms of the old Rules also became extinct, it was contended on behalf of the employees that vacancies arose under the 1941 Rules and, therefore, should be filled up under the 1941 Rules and not under the later 2004 Rules. It is in this context that the Supreme Court observed:-
"...... While it is true that there appears to be no definite decision arrived at based on deliberations, the intendment of the authorities can be gathered from various background and circumstances........28
......We are gravely concerned with the manner in which the certificates of outstanding merit categories were obtained by diploma-holders (respondents herein). It is disclosed in the impugned order of 22nd June, 2005 that the certificates of outstanding merit categories were obtained by tampering/stage managing and manipulation by diploma- holders Junior Engineers for getting CDC of the post of S.D.O. This has casted a serious doubt of the credibility of their outstanding merit categories. It is also disclosed that enquiry No. 28/2002 was also registered by Vigilance Bureau, Punjab. We found ourselves extremely difficult to sift the grain from the chaff. This is one of the reasons that persuaded the appropriate authority for taking conscious decision not to fill up the post under 1941 Rules.
............There is no quarrel over the proposition of law that normal Rule is that the vacancy prior to new Rules would be governed by the old Rules and not by the new Rules. However, in the present case, we have already held that the Government has taken conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the case............
...........All the decisions referred to above are relating to amendment of the Rules. We have already held that 1941 Rules were repealed by 2004 Rules. The facts of those cases are, therefore, not applicable to the facts of the present case...........
...........We hold the Government has taken conscious decision not to fill up the posts under the old 1941 Rules. The impugned order of the High Court is set aside. We may at this stage point out that the problem seems to have been compounded by the inaction/casual approach of the Government detrimental to public interest. The State Government shall now fill up the vacant posts in accordance with the 2004 Rules within a period of three months from today....."
(emphasis supplied)
45. In Deepak Agarwal[10], 12 vacancies arose in the post of Deputy Excise Commissioner in the year 1997-98 and 1998-99 out of which 10 vacancies had arisen prior to 17th May, 1999 and 2 vacancies had arisen on 30th June, 1999. The appellants claimed that they were entitled to be considered for the aforesaid 10 vacancies under Rule 5(2). The 1983 Rules were amended on 17th May, 1999, and the posts of Technical Officers and Statistical Officers were excluded from the feeder cadre for promotion to the post of Deputy Excise Commissioner. This amendment came just two days 29 before the DPC was scheduled to meet on 19th May, 1999. As a consequence of the amendment, the DPC did not consider the appellants for promotion. The justification given for the aforesaid amendment was that the State Government had taken a "conscious decision" to exclude Technical Officers and Statistical Officers as they were not fit for the post of Deputy Excise Commissioner because of their peculiar qualifications, duties, responsibilities and work experience. However, to compensate for the loss of promotion, the pay scale of these two posts was upgraded to the level of Deputy Excise Commissioner. The State Government issued Notification dated 26th May, 1999 granting promotion to 10 persons (Respondent Nos. 3 to 9) to the posts of Deputy Excise Commissioner. Aggrieved thereby, the appellants filed a writ petition before the Allahabad High Court challenging the Notification dated 26th May, 1999; and praying that they be considered for the posts of Deputy Excise Commissioner. On the High Court dismissing the petition, they preferred an appeal. It is in this context that the Supreme Court observed:-
"........... We are of the considered opinion that the judgment in Y.V. Rangaiah's case 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 amendment rules would be governed by the old rules and not the amended rules.
In the present case, there is no statutory duty cast upon the Respondents to either prepare a year-wise panel of the eligible candidates or 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 how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to candidates duly 30 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 Dhawan that the vacancies, which had arisen before 17th May, 1999, had to be filled under the unamended rules.
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's case (supra) 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 have been taken away by the amendment.
The judgments cited by learned Counsel for the Appellants namely B.L. Gupta v. MCD (supra), P. Ganeshwar Rao v. State of Andhra Pradesh (supra) and N.T. Bevin Katti and Ors. v. Karnataka Public Service Commission and Ors. (supra) are reiterations of a principle laid down in Y.V. Rangaiah's case (supra). All these judgments have been considered by this Court in the case of Rajasthan Public Service Commission v. Chanan Ram and Anr. (supra). In our opinion, the observations made by this Court in paragraphs 14 and 15 of the judgment are a complete answer to the submissions made by Dr. Rajiv Dhawan.
In that case, this Court was considering the abolition of the post of Assistant Director (Junior) which was substituted by the post of Marketing Officer. Thus the post of Assistant Director (Junior) was no longer eligible for promotion, as the post of Assistant Director had to be filled by 100% promotion from the post of Marketing Officer. It was, therefore, held that the post had to be filled under the prevailing rules and not the old rules.
In our opinion, the matter is squarely covered by the ratio of the judgment of this Court in the case of Dr. K. Ramulu (supra). In the aforesaid case, this Court considered all the judgments cited by the learned senior counsel for the Appellant and held that Y.V. Rangaiah's case (supra) would not be applicable in the facts and circumstances of that case. It was observed that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. It was also held that when the Government takes a conscious decision and amends the 31 Rules, the promotions have to be made in accordance with the rules prevalent at the time when the consideration takes place.
The High Court has noticed that the post of Technical Officers and statistical Officers have been deleted from the feeder cadre for promotion to the post of Deputy Excise Commissioner for valid reasons. The Government was of the opinion that the Technical Officers and Statistical Officers were not suitable to be promoted on the post of Deputy Excise Commissioner, which involved multifarious administrative responsibilities. The experience gained by the officials working on the post of Technical Officer and Statistical Officer was of no relevance for the duties to be performed on the post of Deputy Excise Commissioner. Consequently, a conscious decision was taken to abolish the feeder cadre consisting of Technical Officers and Statistical Officers for promotion to the post of Deputy Excise Commissioner. The Division Bench, therefore, correctly applied the ratio laid down in Dr. K. Ramulu's case (supra) wherein this Court reiterated the ratio in Union of India v. K.V. Vijeesh: 1996 3 SCC 139, that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies on the relevant date.
We are also unable to accept the submissions of Dr. Dhawan that the conscious decision taken herein is not grounded on the relevant facts. A perusal of the Counter Affidavit filed by the Respondent herein shows that the recruitment of the Appellant No. 1 has been made purely with the objective of looking after the technical work pertaining to pharmacies and industrial units. Therefore, the requisite qualification for the post is Degree in Chemical Engineering. Appellant No.2 has been recruited for compilation, analysis and maintenance of statistical data of the Excise Department. The basic qualification for the post of Statistical Officer is Graduation in Statistics. It appears that the two categories of posts have been eliminated as the incumbents on the said posts do not have any administrative experience. The decision was taken clearly in public interest. Since the decision has been taken after taking into consideration the view points of both the sides, it cannot be said to be arbitrary or based on irrelevant considerations. We also do not find any merit in the submission of Dr. Dhawan that the amendment has been given a retroactive operation as the vacancies which arose prior to the amendment are sought to be filled under the amended rules......"
(emphasis supplied)
46. In Richa Mishra[16], the appellant participated in the selection process and qualified at each stage of the examination. However, her name was not included in the list of successful candidates on the ground that, as per the Chhattisgarh Police Executive (Gazetted) Service Recruitment and 32 Promotion Rules, 2000, the upper age of the DSP was 25 years and she had already crossed the said age-limit and, therefore, she was rendered ineligible for the post of DSP. The petitioner approached the High Court of Chhattisgarh, contending that she was appointed as an Excise Sub-Inspector after clearing the Chhattisgarh Combined Competitive Examination, 2003, she was in government service, and on that ground she was entitled for age relaxation as per Rule 8 of the 2000 Rules. The learned Single Judge of the High Court dismissed the Writ Petition holding that she had entered government service vide appointment order dated 21.04.2006, which was after the cut-off date i.e. 01.01.2006 for the post of DSP; and she was, therefore, not entitled to the benefit of age relaxation. The appellant filed an Appeal before the Division Bench, which was also dismissed. It is in this context that the Supreme Court observed:-
"........No doubt, under certain exceptional circumstances, Government can take a conscience decisions not to fill the vacancies under the old Rules and, thus, there can be departure of the aforesaid general rule in exceptional cases. This legal precept was recognised in the case of Rajasthan Public Service Commission v. Keilla Kumar Palliwal and Anr.: (2007) 10 SCC 260 in the following words:
"30. There is no quarrel over the proposition of law that normal rule is that the vacancy prior to the new Rules would be governed by the old Rules and not by the new Rules. However, in the present case, we have already held that the Government has taken conscious decision not to fill the vacancy under the old Rules and that such decision has been validly taken keeping in view the facts and circumstances of the cases."
This position is reaffirmed in State of Punjab v. Arun Kumar Aggarwal: (2007) 10 SCC 402.
However, as far as present case is concerned, the State sent the requisition specifically mentioning that the recruitment has to be under Rules, 2000. This was so provided even in the advertisement. The Appellant never challenged the advertisement and contended that after the promulgation of Rules, 2005 the recruitment should have been under Rules, 2005 and not Rules, 2000. Therefore, the Appellant is even precluded from arguing that recruitment should have been made under Rules, 2005......"
(emphasis supplied) 33
47. In Nikhil Ranjan Chakraborty[13], Schedule IV to the Tripura Civil Service Rules, 1967 stipulated the names of posts which were feeder posts for the Tripura Civil Service. Schedule IV was amended by including certain other posts as feeder posts in 'Group A' and 'Group B'. A proposal was forwarded to the Tripura Public Service Commission on 23.08.2011, and the Commission accepted the proposal on 26.09.2011. On 24.12.2011, in pursuance of Rule 13, the Selection Committee was constituted for considering cases of eligible officers holding feeder posts in 'Group A' and 'Group B' of Schedule IV of the Rules. A notification dated 19.12.2011 was published in the Gazette on 24.12.2011, amending the Rules including additional posts in Group A and Group B of Schedule IV to the Rules. Thereafter, the State Government called for information from all departments of all eligible officers holding feeder posts. The action of the State of Tripura was challenged by the candidates contending that, since the notification dated 24.12.2011 had been issued constituting a selection committee against the promotional quota, the later amendments in December, 2011 could not be applied and the selection should be governed by the pre-amended Rules. It is in this context that the Supreme Court observed:-
".......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 (supra), 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......"
(emphasis supplied) 34
48. In Krishna Kumar[14], the respondents were appointed between 1982 and 1989 in the post of rifleman in Assam Rifles. They were then working as Havildars. Under the Rules, promotion was from the post of Havildars to the post of Naib Subedar. The Central Government conveyed its sanction on 03.03.2011 for introduction of an intermediate rank of Warrant Officer by the abolition/up-gradation of one post of Havildar. In terms of the recruitment Rules, the post of Warrant Officer was created which was required to be filled up by promotion amongst members of the Assam Rifles holding the rank of Havildar with five years' regular service in the grade and possessing the requisite educational qualifications. Orders were issued to Havildars promoting them to the newly created post of Warrant Officer. The Writ Petition was filed contending that promotion from the post of Havildar was to a lower and inferior rank of Warrant Officer, whereas the promotion ought to have been made to the rank of Naib Subedar. It is in this context that the Supreme Court observed:-
"....... In considering the rival submissions, it must, at the outset, be noted that it is well-settled that there is no vested right to promotion, but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. This Court has held that there is no Rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose. The decision of this Court in Y.V. Rangaiah v. Sreenivasa Rao: (1983) 3 SCC 284 has been construed in subsequent decisions as a case where the applicable Rules required the process of promotion or selection to be completed within a stipulated time frame.......
........In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havildar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such Rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havildars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the 35 correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion......"
(emphasis supplied)
49. In Dhirendra Sundar Das[15], a letter dated 28.04.2008 was issued by the State Government inviting recommendations from the Heads of Departments for appointment by promotion to the Orissa Administrative Service Class-II cadres. This recruitment process was to be undertaken in accordance with the Orissa Administrative Service Class II (Recruitment) Rules, 1978. The department forwarded the names of 559 candidates for consideration for promotion. In the meanwhile, the State Government issued Office Order dated 07.06.2008, to implement the judgment dated 11.04.2007 passed by the Orissa Administrative Tribunal, whereby the State Government was directed to separately assess the vacancies for the year 2001 to 2005 year wise, hold a D.P.C. and make appointment. Consequently, the State Government decided to keep the recruitment process for the Orissa Administrative Service Class-II for the recruitment year 2008 on hold, till the process of recruitment by way of promotion/selection for the years 2001- 2005 was completed. The State Government, by letter dated 19.06.2008, called for recommendations for the years 2001 to 2005. The State Government issued a notification on 07.12.2010 appointing candidates to Orissa Administrative Service Class-II posts for the recruitment year 2001 to 2005. It, thereafter, framed the Orissa Administrative Services (Method of Recruitment and Conditions of Service) Rules, 2011, which came into force on 25.06.2011. Rule 17 of the 2011 Rules repealed the 1978 Rules, under which the 2008 recruitment process had been initiated. The action of the Government in seeking to fill up the posts under the 2011 Rules was questioned. It is in this context that the Supreme Court observed:-
"............ In the present case, the names of 559 candidates, including the contesting Respondents, were merely recommended by their respective Departmental Authorities under Regulation 6. The recruitment process did not proceed any further in accordance with Regulations 7, 8, 9 and 10. No final list of selected candidates was placed by the Orissa Public Service Commission before the State Government for the purposes of appointment as against the vacancies of 2008.36
As such, the contesting respondents who had merely been recommended by their respective Departmental Authorities could not be considered to be 'eligible' for appointment by way of promotion or selection under the erstwhile OAS Class II Regulations, 1978, since the steps set out in the Regulations mentioned below had not been completed prior to the repeal of the old OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978.
Thus, the contesting Respondents had not acquired an accrued or vested right of selection or promotion to OAS Class-II posts in accordance with the OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978, since their names had never been considered for selection or promotion beyond the stage contemplated under Regulation 6.
......In the present case the contesting Respondents had merely been recommended by the respective Departmental Authorities Under Regulation 6. The recruitment process had not proceeded any further thereafter. There was no time-frame prescribed for completion of the recruitment process under the erstwhile OAS Class-II Rules, 1978 or the OAS Class-II Regulations, 1978.
In the meanwhile, the State restructured the Orissa Administrative Service cadre, and constituted the Orissa Revenue Service vide Resolutions dated 28.02.2009 and 25.05.2009.
On the aforesaid grounds, we hold that the judgment of the Division Bench is liable to be set aside since the contesting Respondents did not have a vested or fructified right of promotion to OAS Class II posts which had arisen during the recruitment year 2008. The names of the contesting Respondents were merely recommended for consideration. In the meanwhile, in 2009 the State had re-structured the cadre, and abolished the OAS Class II cadre. The re-constituted cadre viz. the Orissa Revenue Service Group 'B' cadre came in its place. Hence, the direction of the Division Bench to appoint the contesting Respondents in the vacancies which had occurred in the abolished cadre, in accordance with the repealed 1978 Rules, was contrary to law, and liable to be set aside.........."
(emphasis supplied)
50. In Y.V. Rangaiah[2], on which reliance is placed on behalf of the appellants-writ petitioners, the old rules required a panel to be prepared every year in September. The Supreme Court held that a panel should have been prepared each year, and transfer or promotion should have been made out of that panel; in that event the petitioners, who ranked higher than the 37 respondents, would not have been deprived of their right of being considered for promotion; and the vacancies, which occurred prior to the amended rules, would be governed by the old rules and not by the amended rules. Relying on Y.V. Rangaiah[2], the Supreme Court, in R. Dayal[1], held that posts, which fell vacant prior to the amendment of the Rules, would be governed by the original rules and not the amended Rules; and vacancies, that arose subsequent to the amendment of the Rules, are required to be filled in accordance with the law existing as on the date when the vacancies arose i.e. the amended Rules.
51. In P. Mahendran[4], on which also reliance is placed on behalf of the appellants-writ petitioners, the Supreme Court held that the amending Rules should be construed in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter; and the amended Rule would not affect the existing rights of those candidates who are being considered for selection if they possess the requisite qualifications prescribed by the Rules before its amendment. Relying on P. Mahendran[4], the Supreme Court, in Gopal Krushna Rath[6], observed that, when the selection process has actually commenced and the last date for inviting applications is over, any subsequent change in the requirement, regarding qualifications, will not affect the process of selection which has already commenced. Otherwise it would involve issuing a fresh advertisement with the new qualifications.
52. The decision in Y.V. Rangaiah[2], laying down that vacancies, which occurred prior to the amended Rules, would be governed by the earlier Rules and not the amended Rules, would not apply (i) to cases of direct recruitment to the advertised posts. (Chanan Ram[11]); (ii) where the old posts have ceased to exist, and there remains no occasion for proceeding with the recruitment to such non-existing posts pursuant to the earlier advertisement (Chanan Ram[11]); (iii) in cases where there is no statutory duty cast upon the respondents to either prepare a year-wise panel of the eligible candidates or the selected candidates for promotion (Deepak Agarwal[10]; Chanan Ram[11]); and (iv) where the Rules are itself repealed. (Arun Kumar Aggarwal[9]). There is no vested right to appointment but 38 only a right to be considered for appointment in accordance with the Rules which prevail on the date on which the consideration takes place. There is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of the law which existed on the date when they arose. (Krishna Kumar[14]).
53. As noted hereinabove, the 2009 Regulations do not cast a statutory duty on the respondents to finalize the selection of candidates within a specified time frame. The selections, with which we are concerned in the present batch of cases, are for appointment to the post of Lecturers and Assistant Teachers (L.T. Grade) by direct recruitment, and not by promotion. It is difficult for us, therefore, to hold that the decision in Y.V. Rangaiah[2] required the respondents herein to fill up the vacancies in terms of the Regulations in force when the vacancy arose i.e. the pre-amended 2009 Regulations, and not the Regulations as amended by the notification dated 04.01.2017.
54. We are, largely, in agreement with the submission, urged on behalf of the appellants-writ petitioners, that a candidate has a 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 the advertisement, (N.T. Devin Katti[5]); and where the advertisement, inviting applications for direct recruitment, expressly states that the selection shall be made in accordance with the existing Rules, selection of candidates, in such a case, must be made in accordance with the then existing Rules. (N.T. Devin Katti[5]).
55. It is also true that merely by submitting an application for a post, pursuant to an advertisement, the applicant 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 to be considered for selection in accordance with the Rules as they existed on the date of the advertisement. He cannot be deprived of that limited right, on the 39 amendment of Rules, during the pendency of selection unless the amended Rules are retrospective in nature. (N.T. Devin Katti[5]).
56. These submissions need not detain us, for it is not even the appellants-writ petitioners' case that the advertisement, in these batch of cases, expressly stipulated that the selection process shall be undertaken in terms of the pre-amended 2009 Regulations. Reference in some of the advertisements to the 2009 Regulations cannot be construed as a reference only to the pre-amended 2009 Regulations, since the 2017 amendment is also to the very same 2009 Regulations.
57. 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 appointment. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. (Deepak Agarwal[10]; Nikhil Ranjan Chakraborty[13]). In Y.V. Rangaiah[2], the Government had merely amended and had applied the amended Rules without taking a conscious decision not to fill up the existing vacancies pending amendment of the Rules. (Dr. K. Ramulu[12]). The ratio in Y.V. Rangaiah[2] was followed in P. Ganeshwar Rao and Ors. Vs. State of A.P. and Ors.[19]; P. Mahendran[4]; A.A. Calton[3]; N.T. Devin Katti[5]; Ramesh Kumar Choudha and Ors. Vs. State of M.P. and Ors.[21]. In none of these decisions, had a situation arisen where the Government had taken a conscious decision not to make any appointment till the amendment of the Rules (Dr. K. Ramulu[12]).
58. For reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. (Union of India and Ors. Vs. K.V. Vijeesh[22]; Deepak Agarwal[10]; Dr. K. Ramulu[12]). As there is neither an accrued right, nor is there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State would be well within its rights to 40 stipulate that the vacancies be filled in accordance with the Rules as amended. (Nikhil Ranjan Chakraborty[13]).
59. The Government can take a conscious decision, under certain exceptional circumstances, not to fill the vacancies under the old Rules. (Deepak Agarwal[10]; Richa Mishra[16]; State of Punjab Vs. Arun Kumar Aggarwal[9]). When the Government takes such a conscious decision, and thereafter amends the Rules, appointment should be made in accordance with the amended rules prevalent at the time when the consideration takes place. (Deepak Agarwal[10]). Where the Government has taken a valid and conscious decision not to fill the vacancies under the old Rules, keeping in view the facts and circumstances of the case, the principle, that the vacancy prior to the new Rules would be governed by the old Rules, has no application. (Arun Kumar Aggarwal[9]).
60. Mr. Paresh Tripathi, learned Chief Standing Counsel appearing for the State, has no doubt contended that the intention, in issuing the order dated 29.03.2017, is to undertake the selection process, after the notification dated 04.01.2017, strictly in terms of the amended regulations. The fact remains that the order dated 29.03.2017 merely states that the Chief Educational Officers were not making appointments as per the amended Regulations, but were following the old procedure which was not appropriate. The counter-affidavit does not also disclose a conscious decision having been taken by the State Government not to proceed with the selection process which were at different stages of progress under the pre- amended Regulations, or to undertake the selection process afresh, for appointment to the post of Lecturers and Assistant Teachers (L.T. Grade), only in accordance with the 2017 amendment to the 2009 Regulations.
61. While the Government can, undoubtedly, take a conscious decision and can, for germane reasons, decide not to fill up the existing vacancies in terms of the pre-amended Regulations or, in exceptional circumstances, to even halt the process of selection till the Regulations are suitably amended and, thereafter, hold selections afresh in terms of the amended 2009 Regulations, the counter-affidavit does not disclose any such 41 intention on the part of the Government, much less germane reasons, to undertake the selection process, (which has been in progress even before the notification dated 04.01.2017), only in terms of the amendment made to the 2009 Regulations by the notification dated 04.01.2017.
62. In this context it must be borne in mind that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. (P. Mahendran[4]; Gopal Krushna Rath[6]). Unless the statute either expressly or by necessary implication directs that it should have such retrospective effect, no retrospectivity should be given thereto so as to impair or take away an existing right. (A.A. Calton[3]). It is only if the recruitment Rules are amended retrospectively, during the pendency of selection, must selections be held in accordance with the amended Rules. (N.T. Devin Katti[5]). If a Rule is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. (P. Mahendran[4]). If the amended Rules are not retrospective in nature, the selection must, ordinarily, be regulated in accordance with the Rules which were in force on the date of selection. 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. (N.T. Devin Katti[5]).
63. There is nothing, in the notification dated 04.01.2017, to indicate that the Regulation making authority intended to give retrospective effect to the 2017 amendment to the 2009 Regulations, and make it applicable to the selection process which had already commenced prior to the amendment, and which were pending at different stages. As the amending rules, i.e. the 2017 amendment to the 2009 Regulations, would apply prospectively, they cannot adversely affect the rights of those, qualified for selection and appointment, in cases where the process of selection had already commenced when the amended Rules came into force or of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment. (P. Mahendran[4]; Gopal Krushna Rath[6]). Selection proceedings should, ordinarily, be continued in accordance with the law as it 42 stood at the commencement of the said proceedings. (A.A. Calton[3]). The question which would, therefore, necessitate examination is whether giving prospective application to the 2017 amendment to the 2009 Regulations, would require the earlier process of selection, undertaken by the Committees of Management in terms of the pre-amended Regulations, to be continued and completed under the pre-amended Regulations alone.
64. In examining this question, we must bear in mind that the selection process, in the cases before us, are at different stages. The process of selection begins with the issuance of an advertisement and ends with the preparation of a 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, preparation of a list of successful candidates for appointment etc. (B. Sarat Chandra[8]). In these batch of cases, in some call letters were already issued to the candidates to appear for the interview, before the 2017 amendment to the 2009 Regulations came into force, while in some others only an advertisement has been issued, and applications were invited pursuant thereto, and nothing more.
65. It is in this context that the question whether any vested right had accrued to the candidates, who had applied for these posts pursuant to the advertisement, necessitates examination. 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 takes place. The right is to be considered for appointment in accordance with the Rules as they exist when the exercise is carried out. (Krishna Kumar & others[14]). In cases where the consideration for appointment takes place after the amendment came into operation, no accrued or vested right of the applicants can be said to have been taken away by the amendment. (Deepak Agarwal[10]).
66. The questions which arises for consideration is when does the "consideration" for appointment, in these cases, actually take place; and the stage when the applicant accrues a vested right to have the process of 43 selection continued in terms of the Rules in force? Except in Special Appeal Nos.528 of 2019, in the other three cases i.e. Special Appeal Nos.983 and 1004 of 2018 and Special Appeal No.27 of 2019, the selection process had crossed the stage of receipt of applications pursuant to the advertisement. In terms of Regulation 10(a), the applications, received pursuant to the advertisement, were numbered and entered in the Register in the office of the District Education Officer; in terms of Regulation 10(d) quality point marks, obtained by the applicants, had also been entered under the prescribed heads; the applicants were allotted quality point marks, as per the procedure prescribed in annexure (d), by the office of the District Education Officer; the award of quality point marks had also been examined by the District Education Officer, and had been communicated to the concerned private aided institutions along with the application forms; seven candidates were short-listed for interview for each post which was sought to be filled up by direct recruitment in terms of Regulation 10(d); and even the date and place of interview had been finalized. It is only because the subject experts were not available, were interviews not held and the selection process not completed prior to the 2017 amendment coming into force on 04.01.2017.
67. As noted hereinabove, candidates are required to be short-listed for interview in the ratio of 1:7. The number of candidates to be called for interview, in the ratio of 1:7, is again determined on the basis of the quality point marks awarded to the applicants. The writ petitioners herein have been short-listed, and call letters were issued asking them to appear for interview, since, on the basis of the quality point marks awarded to them, they fell within the ratio of 1:7 to be called for interview. While the pre-amended 2009 Regulations required quality point marks to be awarded, for academic qualifications, for 175 out of 200 marks on various parameters, these parameters have now been changed by the 2017 amendment and, as against the quality point marks awarded from a total of 175 marks under the 2009 pre-amended Regulations, the 2017 amendment requires quality point marks, for academic qualifications, to be awarded only for a total of 80 marks, and that too on largely different parameters.
4468. It is possible that, in the light of the change in the criteria for awarding quality point marks, the writ petitioners' right to be considered for appointment as Lecturers and Assistant Teachers (L.T. Grade) may be defeated since, on application of the 2017 amendment, they may no longer be eligible to be called for interview in case the quality point marks are awarded in terms of the 2017 amendment to the 2009 Regulations, and not the pre-amended 2009 Regulations. This would, undoubtedly, affect their vested right to be considered for appointment to the post of Lecturers and Assistant Teachers (L.T. Grade). Further in Special Appeal Nos.983 and 1004 of 2018, as against 17 posts (15 posts of Assistant Teachers (L.T. Grade) and 02 posts of Lecturers), for which a common advertisement was issued, appointment letters were issued for four posts on 18.10.2016 and for nine other posts on 20.12.2016. It is only for the remaining four posts could interviews not be held, i.e. three posts of Assistant Teachers (L.T. Grade) and one post of Lecturer, only because the subject experts, forming part of the interview committee, were not available. We see no justification, in such circumstances, to now direct that the selection to these posts be undertaken in terms of the 2017 amendment to the 2009 Regulations. The writ petitioners in Special Appeal Nos.983 and 1004 of 2018, and in Special Appeal No. 27 of 2019, shall be considered for selection, and interviews shall held, only in terms of the pre-amended 2009 Regulations, as the 2017 amendment, which affects their vested rights to be considered for appointment to these posts by way of direct recruitment, cannot be applied retrospectively.
69. The appellant-writ petitioner in Special Appeal No.528 of 2019, however, stands on a different footing. All that has happened in that case is that an advertisement has been issued, and applications were invited pursuant thereto. The appellant therein had merely submitted her application form, and nothing more. Since quality point marks, as prescribed under the pre-amended Regulations, have not been awarded, the applicant would not know whether or not she would fall within the ratio of 1:7 to be short-listed for interview. The petitioner cannot claim any right, therefore, for her candidature to be considered only in terms of the pre-amended Regulations.
45In this context it is useful to note that, in Dhirendra Sundar Das[15], the Supreme Court held that the respondents, who had merely been recommended by their respective departmental authorities, could not be considered to be 'eligible' for appointment by way of promotion or selection under the erstwhile Regulations, since the steps set out in the Regulations had not been completed prior to the repeal of the old Rules i.e. (i) Regulation 7-preparation of a list of suitable candidates by the Selection Board; (ii) Regulation 8-consultation with the Orissa Public Service Commission; (iii) Regulation 9-recommendation of the Orissa Public Service Commission; and (iv) Regulation 10-preparation and placement of final list before the State Government for appointment; and the respondents had not acquired an accrued or vested right of selection or promotion to posts in accordance with the old Rules, since their names had never been considered for selection or promotion beyond the stage contemplated under Regulation 6.
70. In the present case also, no further action was taken, prior to the 2017 amendment to the 2009 Regulations, except to receive applications pursuant to the advertisement. Mere receipt of applications, without anything more, would not confer any right on the applicant-appellant to claim that she should be considered only in terms of the pre-amended 2009 Regulations. Her entitlement to be considered, if at all, can only be in terms of the Regulations in force i.e. the 2017 amendment to the 2009 Regulations.
71. As a result Special Appeal No. 983 of 2018, Special Appeal No. 1004 of 2018 and Special Appeal No. 27 of 2019 are allowed, and the respondents are directed to issue call letters to the short-listed candidates therein, and conduct interviews, in terms of the pre-amended 2009 Regulations at the earliest and, in any event, within three months from the date of production of a certified copy of this order. All the other Special Appeals i.e. Special Appeal No. 683 of 2018, Special Appeal No. 763 of 2018, Special Appeal No. 951 of 2018, Special Appeal No. 221 of 2019, Special Appeal No. 236 of 2019, Special Appeal No. 298 of 2019 and Special Appeal No. 528 of 2019, are dismissed. The process of selection, for appointment to the posts of Lecturers and Assistant Teachers (L.T. Grade) in these private aided institutions, shall be held in terms of the 2017 46 amendment to the 2009 Regulations with utmost expedition, preferably within four months from the date of production of a certified copy of the order. No costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, CJ.)
20.08.2019 20.08.2019
Rahul