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Madhya Pradesh High Court · body

2017 DIGILAW 285 (MP)

Prabeen Kumar Panday v. State of M. P.

2017-02-23

SUJOY PAUL

body2017
ORDER : Sujoy Paul, J. The interesting conundrum in this petition filed under Article 226 of the Constitution is whether the post of Librarian is to be filled up through direct recruitment or through departmental promotion. 2. In short, the admitted facts are that the petitioner is working as Assistant Librarian in Shyam Shah Medical College, Rewa (respondent No.3). The petitioner submits that the next promotional post for the post of Assistant Librarian is the post of Librarian. This post is to be filled up as per Recruitment Rules namely "Madhya Pradesh Chikitsa Shiksha, Sanchalanayal Tratiya Shreni - Alipikiya (Sah-Chikitsiya Samvarg) Bhart tatha Sewa Shartey, Niyam, 2015" (Recruitment Rules of 2015). It is submitted that as per Schedule II appended to these Rules, the post of Librarian is to be filled up 100% by promotion. The case of the petitioner is that he is holding feeder post of Assistant Librarian and respondents by way of notification Annexure P/1 intends to fill up this post by way of direct recruitment. Shri Manoj Mishra, learned counsel for the petitioner submits that the said action of respondents runs contrary to the Recruitment Rules of 2015. That statutory and fundamental right of consideration for promotion as well as right of progression in the career is taken away by the impugned order. In addition, Shri Mishra placed reliance on the communication dated 25.1.2016 Annexure P/5 whereby the Dean of the respondent No.3 college informed the Director, Medical Education that post in question is to be filled up 100% by promotion. In support of his contention, he relied on 2011 (6) SCC 725 (Deepak Agrawal and another v. State of Uttar Pradesh and others). 3. Per contra, Shri Pushpendra Yadav, learned Government Advocate opposed the relief. Shri Yadav submits that post of Librarian is lying vacant prior to commencement of Recruitment Rules of 2015. Putting it differently, it is submitted that the promotional post of Librarian for which notification Annexure P/1 was issued is lying vacant from a period prior to introduction of Recruitment Rules of 2015. Thus, this post is required to be filled up as per the then applicable rules namely "Madhya Pradesh Public Health (Indian System of Medicine and Homeopathy) Class-III Ministerial Services Recruitment Rules, 1987 (hereinafter called as "Recruitment Rules of 1987"). Thus, this post is required to be filled up as per the then applicable rules namely "Madhya Pradesh Public Health (Indian System of Medicine and Homeopathy) Class-III Ministerial Services Recruitment Rules, 1987 (hereinafter called as "Recruitment Rules of 1987"). By relying on Schedule II of these Rules, it is submitted that the post of Librarian is to be filled up 100% through direct recruitment. It is submitted that by Gazette Notification dated 4.10.2013 (Annexure P/1), the Rules namely "Madhya Pradesh Junior Services (Joint Eligibility) Examination Rules, 2013" were framed. In these Statutory Rules, the post of Librarian of said Medical College was included. As per these Rules also, the post is to be filled up through direct recruitment. In nutshell, the stand of the Government is that the post of Librarian is lying vacant from a period when Recruitment Rules of 1987 were applicable. Hence, the old vacancy is to be filled up by the then applicable Rules. 4. Shri Riaz Mohd., learned counsel for the respondent No.6 borrowed the arguments advanced by learned Government Advocate. By taking this Court to the Rules of 2013 and other communications filed with IA No.15117/2016, it is submitted that a post which became vacant prior to issuance of Recruitment Rules of 2015, is to be filled up by way of old Rules of 1987. As per rules of 1987, the post in question to be filled up 100% by direct recruitment. 5. No other point is pressed by learned counsel for the parties. 6. I have heard the learned counsel for the parties and perused the record. 7. As noticed, the spinal issue to be decided in this case is as to by which Rules the post of Librarian is to be filled up. Under the old Rules, the post of Librarian was required to be filled up 100% through direct recruitment. Learned counsel for the respondents are unable to show any provision as per the Recruitment Rules of 1987 that the said post was required to be filled up within a time limit. Putting it differently, the Rules of 1987 do not prescribe any time limit within which direct recruitment on the post of Librarian was required to be done. Admittedly, the Recruitment Rules of 2015 came into being on its publication in the official Gazette on 22.10.2015. As per these Rules, the posts are to be filled up 100% through promotion. Putting it differently, the Rules of 1987 do not prescribe any time limit within which direct recruitment on the post of Librarian was required to be done. Admittedly, the Recruitment Rules of 2015 came into being on its publication in the official Gazette on 22.10.2015. As per these Rules, the posts are to be filled up 100% through promotion. 8. The Apex Court in the case reported in 1983 (3) SCC 284 (Y.V. Rangaiah v. J. Sreenivasa Rao and others) opined that posts which were lying vacant before amendment in the rules shall be filled up by way of unamended Rules. In the present case, the Rules of 1987 are not amended. Indeed, new Recruitment Rules of 2015 came into being. The point as to which Rules are applicable was again considered by the Supreme Court in Rajasthan Public Service Commission v. Chanan Ram and another, 1998 (1) SCR 791. This judgment of Rajasthan Public Service Commission was again considered by the Supreme Court in Deepak Agrawal and another (Supra). It is apt to quote relevant paras of this judgment : "23. Could the right of the appellants, to be considered under the unamended 1983 Rules betaken away? The promotions to the 12 vacancies have been made on 26.5.1999 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 Y.V. Rangaiah. The High Court has relied on the judgment of this Court in Dr. K. Ramulu ? 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. 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. 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. 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. 27. 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. Devin Katti & Ors. v. Karnataka Public Service Commission & 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 another (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. 9. The Apex Court explained and distinguished the principles laid down in the case of Y.V. Rangaiah (Supra). The Apex Court held that if under the Statutory Rules, no statutory duty cast upon the department to fill up post in a particular manner within a stipulated time, the said post cannot be filled up by applying the old Rules or unamended Rules. It is held that in absence of any such stipulation in the Rules, the vacancy is to be filled up by applying the new Rules. In the considered opinion of this Court, in absence of establishing that the post of Librarian was required to be filled up through direct recruitment within a stipulated time as per the Recruitment Rules of 1987, it cannot be said that those Rules of 1987 will still govern the post of Librarian. In my considered opinion, since there is no mandate in the Rules of 1987 to fill up the post of Librarian within a stipulated time, the said Rules, after commencement of Rules of 2015 cannot be pressed into service. In my considered opinion, since there is no mandate in the Rules of 1987 to fill up the post of Librarian within a stipulated time, the said Rules, after commencement of Rules of 2015 cannot be pressed into service. So far Examination Rules of 2013 are concerned, in my view, these Rules merely prescribe a methodology to conduct the examination. The respondents are unable to show that recruitment process to fill up the post of Librarian through direct recruitment had begun before commencement of Rules, 2015. Thus, Examination Rules, 2013 can not be applied on the post in question after new Rules of 2015 came into being. The document Annexure P/1 is issued after new Rules of 2015 came into being. Since in the Recruitment Rules of 2015, the post of Librarian is to be filled up 100% through promotion, the Examination Rules of 2013 cannot be of any help to the respondents. In other words, a particular post is to be filled up as per the method prescribed in the Statutory Recruitment Rules. The relevant schedule of Recruitment Rules of 2015 makes it clear that it is to be filled up 100% through promotion. Thus, by taking assistance of Examination Rules of 2013 petitioner's right of consideration for promotion cannot be taken away. 10. As analysed above, the impugned action of the respondents in filling up the post of Librarian in the Medical College through direct recruitment cannot be countenanced. Resultantly, the impugned order and action to the said extent is disapproved and set aside. The respondents shall consider the case of petitioner for promotion as per Recruitment Rules of 2015. No cost. Petition is allowed.