advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Monday, January 23, 2017

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. In our view, the instant case is fully covered by the law laid down by this Court in Deepak Agrawal (supra) and the High Court was completely in error in allowing the writ petition and in dismissing the writ appeals.

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL Nos.    691-693    OF 2017
             (ARISING OUT OF SLP (CIVIL) Nos. 21462-64 OF 2013)


State of Tripura & Ors.                                 ….Appellants

                                   Versus

Nikhil Ranjan Chakraborty & Ors.                …. Respondents

                                    WITH

               CIVIL APPEAL Nos.     694-698           OF 2017
             (ARISING OUT OF SLP (CIVIL) Nos. 21465-69 OF 2013)


                               J U D G M E N T



Uday Umesh Lalit, J.


Delay condoned.  Leave granted.



These appeals challenge the  common  Judgment  and  Order  dated  30.08.2012
passed by  the  Division  Bench  of  Guwahati  High  Court,  Agartala  Bench
dismissing Writ Appeal  Nos.62,  63  and  64  of  2012  and  confirming  the
decision of the Single Judge in Writ Petition  (Civil)  Nos.104,  105,  106,
153 and 181 of 2012.



The Tripura Civil Service  Rules,  1967  (hereinafter  referred  to  as  the
“Rules”) made  in  exercise  of  power  conferred  by  Article  309  of  the
Constitution, deal inter alia with constitution  of  Tripura  Civil  Service
and its classification.    Part  III  deals  with  “Method  of  Recruitment”
while Part-V deals with “Recruitment by Selection”.   Rule  13  contemplates
constitution of a “Selection Committee” to consider from time  to  time  the
cases of officers eligible to be considered for selection.   Under  Schedule
IV to the Rules, names of posts are set  out  which  are  feeder  posts  for
Tripura Civil Service.



State of Tripura was desirous  of amending  the  aforesaid  Schedule  IV  by
including certain other posts as feeder posts in “Group  A”  and  “Group  B”
and a proposal to that effect  was  forwarded   to  Tripura  Public  Service
Commission  on 23.08.2011.     The Commission  accepted  the  proposal  vide
its communication dated 26.09.2011.  On 24.11.2011, in pursuance of Rule  13
of the Rules, a 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 for  appointment  to  the  post  of  Tripura  Civil
Service Gr.II against promotional quota. On 24.12.2011 a Notification  dated
19.12.2011  was  published  in  the  Gazette  amending  the  Rules  by  28th
Amendment including additional posts in Group A and Group B of  Schedule  IV
to the Rules, which was in conformity with  the  proposal  accepted  by  the
Commission.



Soon thereafter, a communication was  addressed  by  General  Administration
(Personnel & Training) Department of State of Tripura to all  the  concerned
departments that information/particulars of all  eligible  officers  holding
feeder posts of TCS (Groups- A&B) as amended by 28th Amendment  be  sent  to
the Department for taking necessary action.



The action on part of State of Tripura in relying  upon  the  amended  Rules
and thereby expanding the feeder posts  was  immediately  challenged  by  22
interested candidates by filing Writ Petition Nos.104,  105,  106,  153  and
181 of 2012.  It  was  submitted  that  the  Notification  dated  24.11.2011
having constituted a Selection Committee for filling up posts of TCS  Gr.-II
against promotional quota and information/particulars of  eligible  officers
having already been called for, 28th Amendment effected  in  December,  2011
could not be pressed into service; that the instant selection  ought  to  be
governed by pre-amendment situation and as such a  direction  be  issued  to
the State to confine the selection to those categories which were  mentioned
in Schedule IV to the Rules as they  existed  before  the  amendment.    The
Advocate General appearing for the State relied upon  certain  decisions  of
this Court including Deepak Agarwal & Anr.  v.  State  of  Uttar  Pradesh  &
Others[1] to contend that a vacancy ought to  be  filled  in  terms  of  the
amended Rules.  The Single Judge of the High  Court  allowed  the  petitions
holding that the selection in the present case ought  to  be  undertaken  in
terms of pre-amended Rules.



The aforesaid decision was questioned by interested  candidates,  who  as  a
result of the 28th Amendment were entitled to be considered, by filing  Writ
Appeal Nos.62, 63 and 64 of 2012.   These  appeals  were  dismissed  by  the
Division Bench of the High Court at the preliminary  stage.  The  submission
that the Single Judge had not considered the ratio of the decision  of  this
Court in Deepak Agarwal (supra) was dealt with  by  the  Division  Bench  as
under:

“17.  Mr. Bhowmik has tried to convince us that though  the  learned  Single
Judge took note of Deepak Agarwal (supra), but did not give any  reason  why
the ratio of the said decision would not apply in the case in hand.



18.   There is no doubt that  the  learned  Single  Judge  did  not  go  for
detailed reasoning, but it cannot be said that  he  has  not  discussed  the
said decision while passing the impugned judgment.   However,  as  the  said
decision is placed before us again, we have also gone through the paragraph-
26 of the said decision……”



The Division Bench however, confirmed the view taken  by  the  Single  Judge
and dismissed  the  appeals  at  the  admission  stage,  which  decision  is
presently under appeal.



We heard Mr. J.P. Cama, learned Sr. Advocate appearing for State of  Tripura
and Shri R. Basant, learned Sr. Advocate and  Ms.  Vandana  Sehgal,  learned
Advocate appearing for the concerned respondents who were the original  writ
petitioners.



In Deepak Agarwal (supra) the appellants were Technical Officers  who  along
with Assistant Excise Commissioners  were  eligible  to  be  considered  for
promotion to the post of Deputy Excise Commissioner.  Two  days  before  the
DPC was scheduled to meet to consider the cases  of  all  eligible  officers
for promotion, the concerned  Rules  were  amended  and  Technical  Officers
stood excluded as the feeder post for the next promotional  post  of  Deputy
Excise Commissioner.  The challenge to such exclusion  having  been  negated
by the High Court the matter reached this Court and the relevant  paragraphs
of the decision were:

“2. The old vacancies have to be filled under the old rules  is  the  mantra
sought to be invoked by the appellants in support of their  claim  that  the
vacancies arising prior to 17-5-1999, ought to  be  filled  under  the  1983
Rules as they existed prior to the amendment dated 17-5-1999. The  claim  is
based on the principle enunciated by  this  Court  in  Y.V.  Rangaiah  v  J.
Sreenivasa Rao[2]

………….

23. Could the right of the appellants, to be considered under the  unamended
1983 Rules be taken 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  K.  Ramulu  (Dr.)  v  Dr.  S.
Suryaprakash Rao[3].

24. We are of the considered opinion that  the  judgment  in  Y.V.  Rangaiah
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
amended 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 yearwise panel of  the  eligible  candidates
or of 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 as to how many posts are to be filled under  Rule  7  cannot
be equated  with  not  issuing  promotion  orders  to  the  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 Dhavan that the vacancies,  which  had  arisen
before 17-5-1999 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 case 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 has been taken away by the amendment.”


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.

In our view, the instant case is fully covered by the law laid down by  this
Court in Deepak Agrawal (supra) and the High Court was completely  in  error
in allowing the writ petition and  in  dismissing  the  writ  appeals.   We,
therefore, allow these appeals, set aside  the  judgment  under  appeal  and
dismiss the Writ Petition (Civil) Nos.104, 105,106 153 and 181 of 2012.


Before we part, we must also express that a selection  contemplated  in  the
year 2011 in which the original writ petitioners did not stand excluded  has
been stalled as a result of challenge raised  and  litigation  initiated  by
the original writ petitioners.   In  our  view  the  challenge  was  totally
uncalled for and avoidable.  However, it resulted  in  putting  in  abeyance
the entire process of selection and adversely affected  the  administration.
We, therefore, feel compelled to impose exemplary costs  of  Rs.10,000/-  on
each of the writ petitioners which shall be deposited with  the  High  Court
within six weeks from the date of this order  and  upon  such  deposit,  the
entire amount shall be  made over to the Chief Minister’s  Relief  Fund  for
State of Tripura.



                                                            ..…..…..…………..J.
                                                         (Adarsh Kumar Goel)



                                                                 ….…………………J.
  (Uday Umesh Lalit)

New Delhi,
January 20, 2017













-----------------------
[1]    (2011) 6 SCC 725
[2]     (1983) 3 SCC 284
[3]    (1997) 3 SCC 59


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.