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2012 DIGILAW 871 (HP)

Keshav Sharma v. State of Himachal Pradesh

2012-11-23

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. Petitioner has obtained ‘One Year Vocational Training Course on Horticulture Supervisor” as per Annexure-P2. Respondent-State has framed the Recruitment and Promotion Rules for the post of Horticulture Extension Officer called ‘The Himachal Pradesh Horticulture Class-III (Executive Section) Service (Recruitment, Promotion and Certain Conditions of Service) Rules, 1973, notified on 06.08.1973. These Recruitment and Promotion Rules were repealed by the new rules called “The Himachal Pradesh Horticulture Department, Horticulture Extension Officer Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2002, notified on 01.08.2002. The Recruitment and Promotion Rules notified on 01.08.2002 have been repealed by the new Recruitment and Promotion Rules called “The Himachal Pradesh, Horticulture Department, Horticulture Extension Officer, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2007, notified on 18.09.2007. The minimum qualification for filling up the post of Horticulture Extension Officer as per the rules notified on 01.08.2002 was that the candidate should have passed Matriculation with 2nd division or 10+2 with Science or its equivalent from a recognized Board of School Education or University followed by one year’s Gardener’s Training Course/Vocational Training in Horticulture Management/Vocational Course (Horticulture) from Dr. Y.S. Parmar University of Horticulture & Forestry or should have possessed 4 year’s B.Sc. (Horticulture) Degree or its equivalent from recognized University. 75% posts as per 2002 rules were to be filled up by way of direct recruitment in the following manner: (i) 37 ½ % by direct recruitment. (ii) 37 ½ % by direct recruitment on batch-wise basis. 2. 25% posts were to be filled up by way of promotion. 2. According to the new rules, notified on 18.09.2007, the minimum qualification for filling up the posts of Horticulture Extension Officer is B.Sc. (Horticulture) degree or its equivalent from recognized University. The posts are to be filled up (1) 90% by direct recruitment or on contract basis as under: (i) 45% by direct recruitment or on contract basis (through open competition); and (ii) 45% by academic batch-wise recruitment on regular basis or on contract basis. (2) 10% by promotion. 3. Case of the petitioner, in a nutshell, is that number of vacancies were available before the promulgation of new Recruitment and Promotion Rules on 18.09.2007 and the same are to be filled up as per the Recruitment and Promotion Rules, notified on 01.08.2002. (2) 10% by promotion. 3. Case of the petitioner, in a nutshell, is that number of vacancies were available before the promulgation of new Recruitment and Promotion Rules on 18.09.2007 and the same are to be filled up as per the Recruitment and Promotion Rules, notified on 01.08.2002. Further contention of the petitioner is that the respondent-State may be directed to relax the educational qualification for filling up the posts of Horticulture Extension Officer. 4. The stand of the respondent-State is that the recruitment to the post of Horticulture Extension Officer is to be governed under the Recruitment and Promotion Rules, notified on 18.09.2007. There is no merit in the contention of learned counsel for the petitioner that old vacancies are to be filled up by adopting old rules. This principle will not apply to direct recruitment and the direct recruitment has to take place strictly as per the rules in vogue when the posts are advertised. The petitioner can only be considered for appointment as Horticulture Extension Officer, if he fulfills the qualification prescribed under the rules, notified on 18.09.2007. This Court cannot issue general directions to the respondent-State to give relaxation in minimum qualification prescribed under the rules for filling up the post of Horticulture Extension Officer. The petitioner has only done his matriculation and has obtained ‘One Year Vocational Training Course on Horticulture Supervisor” and is thus not eligible to be considered for the post of Horticulture Extension Officer. 5. The petitioner and similarly situate persons have also made a representation for the redressal of their grievance. According to the averments contained in the reply, the same has been rejected. 6. Their Lordships of the Hon’ble Supreme Court in State of M.P. and others versus Raghuveer Singh Yadav and others, (1994) 6 SCC 151 , have held that the State Government has got power to prescribe qualifications for recruitment and the Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. In this case, the gist of the case was that the Weight and Measures Department of the M.P. Government invited applications for the posts of Inspectors from eligible candidates. The qualification prescribed for eligibility was degree in Art or Commerce or Science or Engineering or Diploma in Engineering. In this case, the gist of the case was that the Weight and Measures Department of the M.P. Government invited applications for the posts of Inspectors from eligible candidates. The qualification prescribed for eligibility was degree in Art or Commerce or Science or Engineering or Diploma in Engineering. Written examinations were held and the results were declared and interview cards were issued to successful candidates but in the meanwhile, the Government amended the rules by M.P. Standard of Weights and Measurement (Enforcement) Rules, 1989 and altered the qualification for eligibility to the said posts to degree in Science with Physics or degree in Engineering or Technology or diploma in Engineering. Pursuant to the amended rules, the Government withdrew the earlier notification and intended to proceed with the recruitment afresh under the amended rules. The candidates challenged the amended rules before the M.P. Administrative Tribunal on the ground that the rules could not be amended retrospectively. Learned M.P. Administrative Tribunal, Jabalpur directed the State of Madhya Pradesh to proceed with the selection of the candidates without taking into account the amendment made to the rules, introducing the B.Sc. as a qualification for consideration of the applications of candidates. Their Lordships allowed the appeal and held as under: “4. For recruitment to the posts of Inspectors, Department of Weights and Measures in the State of M.P, an advertisement was issued on 27-7-1987 calling for applications from eligible candidates. The qualification prescribed for eligibility was degree in Arts or Commerce or Science or Engineering or Diploma in Engineering. It would appear that written examinations were held and results were declared on 26-8-1989. Thereafter, the Board issued interview cards to the successful candidates. In the meanwhile, the Government amended the rules by M.P. Standard of Weights and Measurement (Enforcement) Rules, 1989 in consultation with Government of India and Public Service Commission and altered the eligibility qualification for appointment to those posts by presenting degree in Science with Physics as a subject or Degree in Engineering or Technology or Diploma in Engineering. In the meanwhile, the Government amended the rules by M.P. Standard of Weights and Measurement (Enforcement) Rules, 1989 in consultation with Government of India and Public Service Commission and altered the eligibility qualification for appointment to those posts by presenting degree in Science with Physics as a subject or Degree in Engineering or Technology or Diploma in Engineering. The respondents challenged the amended rules on the ground that having issued the notification for filling up the posts of Inspectors with Degree of Arts and Commerce the State had to proceed with the recruitment only as per the qualification prescribed in the notification and the subsequent amendment to the rules should not stand in the way of the Recruitment Board to consider the claims on the basis of marks secured in the examination and also interview to be held. In other words the amended rules have no retrospective operation. This contention found favour with the Tribunal and accordingly the Tribunal allowed the application. 5. It is not in dispute that Statutory Rules have been made introducing Degree in Science or Engineering or Diploma in Technology as qualifications for recruitment to the posts of Inspector of Weights and Measures. It is settled law that the State has got power to prescribe qualifications for recruitment. Here is a case that pursuant to amended Rules, the Government has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules.” 7. Their Lordships of the Hon’ble Supreme Court in Dr. K. Kamulu and another versus Dr. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules.” 7. Their Lordships of the Hon’ble Supreme Court in Dr. K. Kamulu and another versus Dr. S. Suryaprakash Rao and others, (1997) 3 SCC 59 have held that candidate cannot acquire any vested right for being considered for promotion in such vacancies in accordance with the repealed rules in view of the policy decision, which was justifiable on the material available on the record. In this case, the Government had taken a decision in the year 1988 to amend the A.P. Animal Husbandry Service Special Rules, 1977. It had taken a conscious decision not to fill up any vacancies till the amendment. In the year 1990, a one-man Commission appointed to examine the anomalies in the Rules of 1977 submitted its report which was duly considered by the Government and ultimately the Government framed the A.P. Animal Husbandry Service Rules, 1996 repealing the 1977 Rules w.e.f. 12.6.1996. Therefore, the Government had not prepared any panel for promotion to the post of Assistant Director for the years 1995-96 in accordance with the 1977 Rules. The Administrative Tribunal, on the application of the respondent directed the Government to prepare and operate such panel. Their Lordships allowed the appeal and set aside the judgment of the Tribunal. Their Lordships have held as under: “4. The facts are, very fairly, not in dispute. Respondent No.1 both sets of appeals is a Veterinary Assistant Surgeon in A.P. Animal Husbandry Department. He filed O.A. seeking direction for preparation of a panel of candidates for promotion as Assistant Director under Rule 4 of the A.P. Subordinate Service Rules [for short, the ‘General Rules’].The Tribunal directed the respondent-Government to prepare and operate the panel for the years 1995-96 for promotion to the post of Assistant Director in the A.P. Animal Husbandry Service. Calling that order in question, these appeals have been filed by the contesting respondents as well as by the State. 12. The same ratio was reiterated in U.O.I. & Ors. v. K.V. Vijeesh [ (1996) 3 SCC 139 , paras 5 and 7]. Calling that order in question, these appeals have been filed by the contesting respondents as well as by the State. 12. The same ratio was reiterated in U.O.I. & Ors. v. K.V. Vijeesh [ (1996) 3 SCC 139 , 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. Shri H. S. Guraraja Rao, contends that this Court in Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors. [ (1983) 3 SCC 284 ] had held that the existing vacancies were required to be filled up as per law prior to the date of the amended Rules. The mere fact that Rules came to be amended subsequently does not empower the Government not to consider the persons who are eligible prior to the date of appointment. It is seen that the case related to the amendment of the Rules prior to the amendment of the Rules. Two sources were available for appointment as sub-Registrar, namely, UDCs and LDCs. Subsequently, Rules came to be amended taking away the right of the LDCs for appointment as sub-Registrar. When the vacancies were not being filled up in accordance with the existing Rules, this court had pointed out that prior to the amendment of the Rules, the vacancies were existing and that the eligible candidates were required to be considered in accordance with the prevailing Rules. Therefore, the mere fact of subsequent amendment does not take away the right to be considered in accordance with the existing Rules. As 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 & Ors. v. State of A.P. & Ors. [(1988) Supp. 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 & Ors. v. State of A.P. & Ors. [(1988) Supp. SCC 740], P. Mahendranath v. State of Karnataka [ (1990) 1 SCC 411 ], A.A. Caljon v. Director of Education [ (1983) 3 SCC 33 ], N.T. Dev v. Karnataka PSC [ (1990) 3 SCC 157 , Ramesh Kumar Choudha & Ors. v. State of M.P. & Ors. (1996) 7 Scale 619 ]. In none of these decisions, situation which has arisen in the present case had come up for consideration. Even Rule 3 of the General Rules is not of any help to the respondent for the reason that Rule 3 contemplates making of an appointment in accordance with the existing Rules. 8. Their Lordships of the Hon’ble Supreme Court in Rajasthan Public Service Commission versus Chanan Ram and another, (1998) 4 SCC 202 have upheld the decision to fill up the vacancies of Marketing Officers, including the vacancies in the abolished cadre, by amended recruitment rules. Their Lordships have also distinguished Y.V. Rangaiah versus J. Sreenivasa Rao, (1983) 3 SCC 284 as under: “15………………In the case of Y.V. Rangaiah and others etc. v. J. Sreenivasa Rao and others [( 1983 3 SCC 284 ] 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 yearwise 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. The said decision obviously cannot apply on the facts of the present case for two reasons. Firstly, this is not a case of 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 yearwise 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……………….” 9. Their Lordships of the Hon’ble Supreme Court in latest judgment in Deepak Agarwal and another versus State of Uttar Pradesh and others, (2011) 6 SCC 725 have held that the rules which are prevalent at time when the consideration took place for promotion, would be applicable. Their Lordships have further held that the 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 and 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. Their Lordships have held as under: “18. The short question that arises for consideration is as to whether the appellants were entitled to be considered for promotion on the post of Deputy Excise Commissioner under the 1983 Rules, on the vacancies, which occurred prior to the amendment in the 1983 Rules on 17th May, 1999. 19. Under the unamended 1983 Rules, the petitioners would be eligible to be considered for promotion by virtue of Rule 5(2). By virtue of the Note to Rule 8, a combined eligibility list has to be prepared by arranging the names of Assistant Excise Commissioner and Technical Officers in order of seniority as determined by the date of their substantive appointment. The appellants were, therefore, clearly in the feeder cadre of the post for promotion to the post of Deputy Excise Commissioner. Rule 7 provides that the Appointing Authority shall determine the vacancies to be filled during the course of the year and the number of vacancies. The appellants were, therefore, clearly in the feeder cadre of the post for promotion to the post of Deputy Excise Commissioner. Rule 7 provides that the Appointing Authority shall determine the vacancies to be filled during the course of the year and the number of vacancies. There is no statutory duty cast upon the State to complete the selection process within a prescribed period. Nor is there a mandate to fill up the posts within a particular time. Rather the proviso to Rule 2 enables the State to leave a particular post unfilled. 20. However, it is a matter of record that the promotions under the 1983 Rules were to be made on the basis of the criteria’s laid down in the Uttar Pradesh Government Criterion for Recruitment by Promotion Rules, 1994. Rule 4 of these Rules provided that: “Recruitments by promotion………….…..shall be made on the basis of seniority subject to the rejection of the unfit.” Consequently, the appellants would have been eligible for promotion on the basis of seniority, as determined under the Note to Rule 8. The aforesaid right for consideration to be promoted on the post of Deputy Excise Commissioner has been taken away by the Uttar Pradesh Excise Group ‘A’ Service (5th amendment) Rules, 1999. 22. It is also a matter of record that 12 vacancies existed on the post of Deputy Excise Commissioner for the year 1997-98 and 1998-99. Out of these 12 vacancies, 10 had arisen prior to 17th May, 1999 and two vacancies arose on 30th June, 1999. By virtue of the amendment in sub-rule 3 of Rule 5, the appellants have been deprived of the right to be considered for promotion on the post of Deputy Excise Commissioner. Respondents have been promoted by the impugned order dated 26th May, 1999 under the amended Rules. 23. Could the right of the appellants, to be considered under the unamended 1983 Rules be taken away? The promotions of the 12 vacancies have been made on 26th May, 1999 under the amended Rules. The High Court rejected the submissions of the appellants that the controversy herein is squarely covered by the judgment of this Court in the case of Y.V. Rangaiah (Supra). The High Court has relied on the judgment of this Court in Dr. K. Ramulu (supra). 24. The High Court rejected the submissions of the appellants that the controversy herein is squarely covered by the judgment of this Court in the case of Y.V. Rangaiah (Supra). The High Court has relied on the judgment of this Court in Dr. K. Ramulu (supra). 24. We are of the considered opinion that the judgment in Y.V. Rangaiah’s case (supra) 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. 25. 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 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. 26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the ‘rule in force’ on the date the consideration took place. Rajeev Dhawan that the vacancies, which had arisen before 17th May, 1999 had to be filled under the unamended rules. 26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the ‘rule in force’ on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah’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 can not be accepted that any accrued or vested right of the appellants have been taken away by the amendment. 32. Similarly, this view has been reiterated by this Court in the cases of State of M.P. & Ors. Vs. Raghuveer Singh Yadav & Ors. (supra), H.S. Grewal Vs. Union of India & Ors. (supra) and Rajasthan Public Service Commission Vs. Chanan Ram & Anr. (supra). This Court in Rajasthan Public Service Commission’s case (supra) has held that it is the rules which are prevalent at the time when the consideration took place for promotion, which would be applicable. In Para 17, it has been held as follows: “In the case of State of M.P. v. Raghuveer Singh Yadav a Bench of two learned Judges of this Court consisting of K. Ramaswamy and N. Venkatachala, JJ., had to consider the question whether the State could change a qualification for the recruitment during the process of recruitment which had not resulted into any final decision in favour of any candidate. In paragraph 5 of the Report in this connection it was observed that it is settled law that the State has got power to prescribe qualification for recruitment. In the case before the Court pursuant to the amended Rules, the Government had withdrawn the earlier notification and wanted to proceed with the recruitment afresh. In paragraph 5 of the Report in this connection it was observed that it is settled law that the State has got power to prescribe qualification for recruitment. In the case before the Court pursuant to the amended Rules, the Government had withdrawn the earlier notification and wanted to proceed with the recruitment afresh. It was held that this was not the case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered according to the rules then in vogue. The amended Rules had only prospective operation. The Government was entitled to conduct election in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State was entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules. In the case of J&K Public Service Commission v. Dr Narinder Mohan another Division Bench of two learned Judges of this Court consisting of K. Ramaswamy and N.P. Singh, JJ. considered the question of interception of recruitment process earlier undertaken by the recruiting agency. In this connection it was observed that the process of selection against existing and anticipated vacancies does not create any right to be appointed to the post which can be enforced by a mandamus. It has to be recalled that in fairness learned Senior Counsel, Shri Ganpule for the respondent-writ petitioner, stated that it is not his case that the writ petitioner should be appointed to the advertised post. All that he claimed was his right to be considered for recruitment to the advertised post as per the earlier advertisement dated 5-11-1993 Annexure P-1 and nothing more. In our view, the aforesaid limited contention also, on the facts of the present case, cannot be of any assistance to the writ petitioner as the earlier selection process itself had become infructuous and otiose on the abolition of the advertised posts, as we have seen earlier. The second point, therefore, will have to be answered in the negative in favour of the appellants and against the respondent-writ petitioner.” 10. The second point, therefore, will have to be answered in the negative in favour of the appellants and against the respondent-writ petitioner.” 10. Accordingly, in view of the observations and discussions made hereinabove and the definitive law laid down by their Lordships of the Hon’ble Supreme Court, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs.