State of
Rajasthan Vs. R. Dayal & Ors [1997] INSC
172 (17 February 1997)
K.
RAMASWAMY, G.T. NANAVATI
ACT:
HEAD NOTE:
O R D E
R
Leave
granted.
This
appeal by special leave arises from the judgement of the Division Bench of the
Rajasthan High Court, Jaipur Bench, made on August 30, 1996 in Writ Petition No. 3759/95.
The
admitted position is that for nine vacancies existing and anticipated as on April 1, 1995, the Departmental Promotion
Committee (for short, the "DPC") was convened including respondent
Nos. 12 and 13, viz., B.S. Bhatnagar and H.L. Meena (ST) respectively. The
other respondents filed the writ petition in the High Court impugning their
appointments based on Rule 24-A of the Rajasthan Service of Engineers (Building
and the Roads Branch) Rules, 1954 (as amended) (for short, the 'Rules').
The
only question is : whether the appointment of the said respondents, viz., B.S. Bhatnagar
and H.L. Meena, is made in accordance with the Rules.
Shri Aruneshwar
Gupta, learned counsel appearing for the State, contends that under Rules 9 of
the Rules, subject to the provision therein, the appointing authority shall
determine as on the first day of the financial year, i.e., commencing from 1st
April of ensuing year and ending with 31st March of successive year, the number
of vacancies, actual or anticipated, occurring during the financial year.
They
are required to be considered by the DPC constituted in that behalf as per the
criteria prescribed in Rule 23 of the Rules. In accordance therewith, for the
nine existing and anticipated vacancies, the DPC considered the claims of all
the eligible candidates, as per the Rules then existing and selected them. A
list of selected candidates is contained in the minutes of the DPC held on April 13, 1995. As per the criteria then existing,
B.S. Bhatnagar (General) and H.L. Meena (Reserved), were selected on merit. As
a consequence, they were appointed by promotion in accordance with the Rules,
though Rule 23-A and Rule 24-A came to be introduced by statutory amendment w.e.f.
July 24, 1995. Shri Jayant Das, learned senior
counsel appearing for respondent No.13, promotee-respondent, contends that
under Rule 23 of the Rules, the criteria prescribed as on the date of the
selection by the DPC is required to be applied. Since the existing criteria had
been applied, their selection was correct in law. Consequently, the vacancies
which arise during that financial year were required to be filled up from
amongst the respondents.
Shri
P.P. Rao, learned senior counsel appearing for the contesting respondents, who
had filed the writ petition, contends that in view of the fact that amendment
of Rules has been made effective by clause 1 (ii) with immediate effect, the
amended Rules having come into force from July 24, 1995, public policy demands
and the Government is required to apply the criteria prescribed in the amended
law. It should be applied as indicated in column in Rule 2(iii) thus:
"2.(iii)
in column numbers 2 and 4 against serial No.2 after the words "Addl.Chief
Engineer" and "Superintending Engineers" the expression
"(Civil)" shall be added an in column No.5 the following new entry
shall be inserted:- "Must hold a degree in Engineering (Civil) of a
University established by law in India or qualification declared quivalent
thereto by Government with 5 years service as Suyperintending Engineer
(Civil)" (iv) After serial number 2, the following new serial number and
entries thereto shall be inserted, namely :-
------------------------------------------------------------ 1 2. 3. 4. 5 6 7. ------------------------------------------------------------
"2-A Addl. 100% by Superintending Must hold a Chief promotion Engineer
degree in (Mechanical) (Mechanical) Engineering (Mechanical) of a University
established by law in India or qualification declared equivalent thereto by
Government with 5 years service as Superintending Engineer
(Mechanical"." As a consequence, any appointment made as on that
should be consistent with the above Rule. In support thereof, he placed
reliance on the decision of this Court in V.V. Rangaiah vs. J. Sreenivasa Rao
[(1983) 3 SCC 284].
The
question, therefore, is: whether the view taken by the High Court in the
impugned judgment is correct in law? It is true, as contended by Shri Aruneshwar
Gupta, that the determination of vacancies is required to be done under Rule 9
of the Rules and the selection has to be made in accordance with the criteria
prescribed under Rule 23 of the Rules. Even Rule 23-A of the Rules prescribes
the same procedure and the criteria thereunder was also followed. The revised
criteria of eligibility and procedure for promotion of the officers has been
prescribed under Rule 24-A of the Rules. Sub-rule (2) of Rules 12 envisages as
under:
"The
persons enumerated in Column 5 or the relevant Column regarding `posts from
which promotion is to be made.' as the case may be of the relevant Schedule
shall be eligible for promotion to posts specified against them in Column 2
thereof to the extent indicated in Column 3 subject to their possessing minimum
qualifications and experince on the first day of the month of April of the year
of selection as specified in Column 6 or in the relevant Column regarding
"minimum qualification and experience for promotion", as the case may
be." Therefore, 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 cane to be amended and the amendedment 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 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 Rules 9 of the Rules. But after the
amended Rules came into force, necessarily 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 he 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 Rule and make appointments in accordance
therewith.
It is
contended by Shri Das that one of the persons, namely, H.L. Meena was appointed
against a carried forward post as per the existing Rules and, therefore, his
appointment cannot be challenged. We find it difficult to give acceptance to
the contention. Even a carried forward vacancy is required to be considered in
accordance with the law existing unless suitable relaxation is made by the
Government. As on that date, when the appointment came to be made, the
selection was required to be made on the basis of the Rules as existing on the
date the vacancy arose. Since, admittedly, that has not been done, the
appointment of Shri Bhatnagar and H.L. Meena must be treated to be only
temporary appointments pending consideration of the claims of all the eligible
persons belonging to General and Reserved quota separately as per Rules.
Equally,
one B.L. Kankas (Scheduled Tribe) was appointed by promotion on July 28, 1995, after the amended Rules came into
force, and retired from service on July 31, 1995, Since he has already retired, his
appointment has not been challenged, though direction to the contra was given
by the Division Bench. To that extent, the judgment of the High Court stands
set aside and his promotion is ordered to remain undisturbed. As regards
others, the Government is required to constitute the DPC which would consider
the claims of eligible candidates as per Rules. It would make fresh selection
and appointments in accordance with law.
Whatever
benefits have been given under the impugned order cannot be taken away although
the orders are being hereby quashed. But seniority and other criteria would be
subject to the decision that would be taken by the Government. The Government
is directed to constitute the DPC within a period of eight weeks from the date
of the receipts of the order and take speedy action accordingly. The appeal is
accordingly disposed of. No costs.
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