1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 8253 OF 2018
[ARISING OUT OF S.L.P. (CIVIL) NO. 34621 OF 2016]
STATE OF ORISSA AND OTHERS … APPELLANTS (S)
VERSUS
STATE (TRYSEM) LIVE STOCK INSPECTOR
SANGHA AND OTHERS … RESPONDENT (S)
J U D G M E N T
KURIAN, J.
1. Leave granted.
2. In direct recruitment to a post, whether qualification is to be
seen, with reference to the date of occurrence of vacancy or at the
time of recruitment, is the question arising for consideration in this
case.
3. The Orissa Non-Gazetted Veterinary Technical Service
(Recruitment and Conditions of Service) Rules, notified on 4th
January, 1984 (referred to in the impugned Judgment as 1983
Rules), provides for recruitment to two cadres - Veterinary Technician
and Livestock Inspector. 90 per cent of the posts of Livestock
Inspector is to be filled-up by direct recruitment and the remaining
2
10 per cent by promotion of Class IV field employees who are
matriculates and have field experience for two years in the
treatment of animals. Veterinary Technician post is filled-up by
promotion from the cadre of Livestock Inspectors. Rules 5 and 6 of
the 1984 Rules provide for the method of recruitment and selection
procedure. The Rules read as follows:
“Direct recruitment to the cadre of Livestock
Inspector:- 5. Direct appointment to the posts in
the cadre of Livestock Inspector’s shall be made by
Director in order of merit out of the list of
candidates successfully completed the training.
Selection of candidates for Livestock Inspector
Training:- 6. In order to be eligible to undergo
Livestock Inspector’s Training a candidate must
fulfill the following conditions, namely:-
a) He must be citizen of India or a subject of
Nepal/ Bhutan. Provided that the eligibility of
persons other than citizen of India shall cease
on such date as the Government may by order
appoint in that behalf,
b) He must have passed either the class VII examination
with Oriya as a subject or passed a
test in Oriya in M.E. School standard conducted
by the Education department,
c) He shall be over eighteen years and below
twenty seven years of age on the date of admission
to the Livestock Inspector Training
Center:
Provided that maximum age limit may be relaxed
by five years in respect of candidate belonging
to Scheduled Castes and Scheduled
Tribes and to such extent in respect of candidates
of such other categories as the Government
may by general or special order specify
from time to time,
3
d) He must have passed at least matriculation or
equivalent examination of the Board of Secondary
Education of a recognized University,
e) He must be a good character,
f) He must be of sound health, good physique
with height not less than 5’2” and chest unexpanded
30” and must also be of active habits
and be free from organic defects and physical
and mental infirmity,
g) He must know cycling well,
h) He must not have more than on wife living,”
4. By Notification dated 19.09.1997, the 1984 Rules were
amended as per the Orissa Group ‘C’ Veterinary Technical Service
(Recruitment and Conditions of Service) (Amendment) Rules, 1997.
5. As per the amendment, the educational qualification,
which was previously “matriculation”, has been changed to
“Intermediate in Science or +2 Science or Higher Secondary
(Science) or such other equivalent examination or +2 Vocational
courses in the field of Animal Husbandry/ Dairy/Poultry/Meat/Animal
Production from a recognised educational
institution/Board/Council/University : Provided that candidates who
have passed +2 vocational courses shall be given preference while
selecting the candidates to undergo Live-Stock Inspector’s Training”.
6. There is also a proviso to the amendment that in case of the
candidates selected for training from amongst the Group ‘D’ field
employees. The required qualification is only “Matriculation or
equivalent examination of the Board of Secondary Education,
4
Orissa”.
7. The High Court was of the view that there are two set of Rules –
1983 Rules and 1997 Rules. As we have noted above, there is only
one set of Rules notified on 4th January, 1984, amended in 1997.
Unfortunately, the High Court, as per the impugned Judgment, took
it as two set of Rules. The High Court hence took the view that the
vacancies which existed prior to the 1997 amended Rules should be
filled-up as per the qualification which existed as per the 1984 Rules,
even if the recruitment is after the amendment. Thus aggrieved, the
State is in appeal.
8. Mr. Maninder Singh, learned Additional Solicitor General,
however, points out that the 1983 Rules having been amended in
1997, any direct recruitment, after the amendment, has to be made
in terms of the amended rules. The situation would have been
different in case of promotion where the persons aspiring for
promotion could have laid a claim for promotion in respect of the
vacancies available prior to the amendment. That is not the
situation in the present case. It is a case of direct recruitment. As
held by this Court in Union of India and another v. Yogendra
Singh1
, in the case of direct recruitment, the candidate should
possess the qualification as per Rules which are in force at the time
of recruitment irrespective of the date of occurrence of vacancy.
1 (1994) Suppl. 2 SCC 226
5
9. Mr. R. P. Bhat, learned Senior Counsel appearing for the
respondents, has strenuously contended that the respondents are
people who have been sent for training imparted by the Government
under TRYSEM (Training Rural Youth for Self Employment) Scheme
for a period of one year during 1994 to 1997 and they have been
awaiting appointment as Livestock Inspectors/Veterinary Assistants,
etc., as per the then existing Rules of 1983. It is also submitted that
all those who have been trained under the project, have been
appointed as per the 1983 Rules with a qualification of
“matriculation”, prior to the introduction of amendment to the Rules
with effect from 1997. Therefore, it is contended that all the
vacancies which existed prior to the amendment in the Group ‘C’
cadre, should be filled-up with persons who have been trained under
the Scheme, as was done in the case of the previous batches. It is
also submitted that even under the amendment, there is a category
of people who have been found qualified for appointment with
matriculation and, therefore, the respondents should also be
considered since they also have the same qualification as
matriculation and training.
10. There cannot be any quarrel with the first principle in service
jurisprudence, that for direct recruitment, the qualification has to be
seen at the time of recruitment. In direct recruitment a lot of policy
6
issues are also involved. It is not mandatory that all such vacancies
should be filled up and if at all to be be filled up, should be filled up
as and when vacancies arise. Those are all matters left to the
conscious decision of the appointing authority. It is also open to the
competent authority to decide the mode and manner of selection
and prescribe the qualification and eligibility at the time of
recruitment. However, in the case of promotion, the incumbents are
entitled to stake a claim for vacancies which existed prior to the
amendment to be filled-up as per the un-amended rules. That is
based on the principle of legitimate expectation. Hence, we find it
difficult to appreciate the submission made by Shri R. P.Bhat, learned
Senior Counsel, that the qualification should be seen as on the date
of occurrence of vacancies, in the case of direct recruitment.
11. In Yogendra Singh (supra), this Court has dealt with the
similar situation and it has been held that “No candidate who does
not possess the currently prescribed qualifications, but who may
possess the educational qualifications prescribed earlier, can be said
to qualify or have any vested right to appointment even against
some earlier unfilled vacancy. Every candidate who aspires to fill any
vacancy must possess the educational qualifications that are then
prescribed”.
7
12. The reliance placed by the High Court in Vinod Kumar Sangal
v. Union of India and others2
, is of no assistance since it was a
case of promotion and bunching of vacancies for several years
where the requirement was in fact selection from panel prepared
year-wise.
13. No doubt, there is a proviso under the amended Rules that for a
candidate selected for training from amongst Group ‘D’ filed
employees, the qualification is only matriculation or equivalent. That
is a relaxation given under the Rules in respect of in-service
candidates for training followed by appointment. The respondents
are not in-service candidates. They can aspire for only direct
recruitment.
14. Thus, the view taken by the High Court that the appointment
will have to be made in terms of the Rules existing at the time of
occurrence of vacancy, for direct recruitment, placing wrong reliance
in Vinod Kumar Sangal (supra) does not reflect the correct legal
position. As we have already stated above, for promotees, they can
always stake a claim for promotion in respect of the vacancies
available prior to the amendment to be filled-up in terms of the
amended Rules. That is not the situation in the present case.
2 (1995) 4 SCC 246
8
15. Faced with such a situation, the learned Senior Counsel has
drawn our attention to the letter dated 01.12.2000 from the
Government of Orissa in the matter of employment of TRYSEM
Livestock Inspectors in various programmes in the Animal and Rural
Development Department. In that letter, the Government has made
it clear that the experience of the people for recruitment will have to
be seen, but the educational qualification has to be seen as on
December 1998, which is after amendment. However, the
Government has stated in the letter that the Department “has to
formulate a specific project for absorption of 500 unemployed
TRYSEM trained youths which in long run will help in optimum
development of the Department”. It may be relevant to note that
the very appointment is from trained candidates. That being the
stand taken by the Government, as reflected in the letter, we make
it clear that it will be open to the respondents to make an
appropriate representation before the Government for relaxation of
the qualification in view of their training, in which case, the
Government will consider the same expeditiously. It will also be open
to the respondents to bring to the notice of the Government that
after training, they had actually been engaged as Livestock
Inspectors on various occasions.
9
16. Subject to the above, the impugned Judgment of the High Court
dated 18.07.2016 in Writ Petition (Civil) No. 24638 of 2011 is set
aside and the appeal is allowed. No costs.
……….......................J.
[KURIAN JOSEPH]
...............................J.
[SANJAY KISHAN KAUL]
NEW DELHI;
AUGUST 14, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 8253 OF 2018
[ARISING OUT OF S.L.P. (CIVIL) NO. 34621 OF 2016]
STATE OF ORISSA AND OTHERS … APPELLANTS (S)
VERSUS
STATE (TRYSEM) LIVE STOCK INSPECTOR
SANGHA AND OTHERS … RESPONDENT (S)
J U D G M E N T
KURIAN, J.
1. Leave granted.
2. In direct recruitment to a post, whether qualification is to be
seen, with reference to the date of occurrence of vacancy or at the
time of recruitment, is the question arising for consideration in this
case.
3. The Orissa Non-Gazetted Veterinary Technical Service
(Recruitment and Conditions of Service) Rules, notified on 4th
January, 1984 (referred to in the impugned Judgment as 1983
Rules), provides for recruitment to two cadres - Veterinary Technician
and Livestock Inspector. 90 per cent of the posts of Livestock
Inspector is to be filled-up by direct recruitment and the remaining
2
10 per cent by promotion of Class IV field employees who are
matriculates and have field experience for two years in the
treatment of animals. Veterinary Technician post is filled-up by
promotion from the cadre of Livestock Inspectors. Rules 5 and 6 of
the 1984 Rules provide for the method of recruitment and selection
procedure. The Rules read as follows:
“Direct recruitment to the cadre of Livestock
Inspector:- 5. Direct appointment to the posts in
the cadre of Livestock Inspector’s shall be made by
Director in order of merit out of the list of
candidates successfully completed the training.
Selection of candidates for Livestock Inspector
Training:- 6. In order to be eligible to undergo
Livestock Inspector’s Training a candidate must
fulfill the following conditions, namely:-
a) He must be citizen of India or a subject of
Nepal/ Bhutan. Provided that the eligibility of
persons other than citizen of India shall cease
on such date as the Government may by order
appoint in that behalf,
b) He must have passed either the class VII examination
with Oriya as a subject or passed a
test in Oriya in M.E. School standard conducted
by the Education department,
c) He shall be over eighteen years and below
twenty seven years of age on the date of admission
to the Livestock Inspector Training
Center:
Provided that maximum age limit may be relaxed
by five years in respect of candidate belonging
to Scheduled Castes and Scheduled
Tribes and to such extent in respect of candidates
of such other categories as the Government
may by general or special order specify
from time to time,
3
d) He must have passed at least matriculation or
equivalent examination of the Board of Secondary
Education of a recognized University,
e) He must be a good character,
f) He must be of sound health, good physique
with height not less than 5’2” and chest unexpanded
30” and must also be of active habits
and be free from organic defects and physical
and mental infirmity,
g) He must know cycling well,
h) He must not have more than on wife living,”
4. By Notification dated 19.09.1997, the 1984 Rules were
amended as per the Orissa Group ‘C’ Veterinary Technical Service
(Recruitment and Conditions of Service) (Amendment) Rules, 1997.
5. As per the amendment, the educational qualification,
which was previously “matriculation”, has been changed to
“Intermediate in Science or +2 Science or Higher Secondary
(Science) or such other equivalent examination or +2 Vocational
courses in the field of Animal Husbandry/ Dairy/Poultry/Meat/Animal
Production from a recognised educational
institution/Board/Council/University : Provided that candidates who
have passed +2 vocational courses shall be given preference while
selecting the candidates to undergo Live-Stock Inspector’s Training”.
6. There is also a proviso to the amendment that in case of the
candidates selected for training from amongst the Group ‘D’ field
employees. The required qualification is only “Matriculation or
equivalent examination of the Board of Secondary Education,
4
Orissa”.
7. The High Court was of the view that there are two set of Rules –
1983 Rules and 1997 Rules. As we have noted above, there is only
one set of Rules notified on 4th January, 1984, amended in 1997.
Unfortunately, the High Court, as per the impugned Judgment, took
it as two set of Rules. The High Court hence took the view that the
vacancies which existed prior to the 1997 amended Rules should be
filled-up as per the qualification which existed as per the 1984 Rules,
even if the recruitment is after the amendment. Thus aggrieved, the
State is in appeal.
8. Mr. Maninder Singh, learned Additional Solicitor General,
however, points out that the 1983 Rules having been amended in
1997, any direct recruitment, after the amendment, has to be made
in terms of the amended rules. The situation would have been
different in case of promotion where the persons aspiring for
promotion could have laid a claim for promotion in respect of the
vacancies available prior to the amendment. That is not the
situation in the present case. It is a case of direct recruitment. As
held by this Court in Union of India and another v. Yogendra
Singh1
, in the case of direct recruitment, the candidate should
possess the qualification as per Rules which are in force at the time
of recruitment irrespective of the date of occurrence of vacancy.
1 (1994) Suppl. 2 SCC 226
5
9. Mr. R. P. Bhat, learned Senior Counsel appearing for the
respondents, has strenuously contended that the respondents are
people who have been sent for training imparted by the Government
under TRYSEM (Training Rural Youth for Self Employment) Scheme
for a period of one year during 1994 to 1997 and they have been
awaiting appointment as Livestock Inspectors/Veterinary Assistants,
etc., as per the then existing Rules of 1983. It is also submitted that
all those who have been trained under the project, have been
appointed as per the 1983 Rules with a qualification of
“matriculation”, prior to the introduction of amendment to the Rules
with effect from 1997. Therefore, it is contended that all the
vacancies which existed prior to the amendment in the Group ‘C’
cadre, should be filled-up with persons who have been trained under
the Scheme, as was done in the case of the previous batches. It is
also submitted that even under the amendment, there is a category
of people who have been found qualified for appointment with
matriculation and, therefore, the respondents should also be
considered since they also have the same qualification as
matriculation and training.
10. There cannot be any quarrel with the first principle in service
jurisprudence, that for direct recruitment, the qualification has to be
seen at the time of recruitment. In direct recruitment a lot of policy
6
issues are also involved. It is not mandatory that all such vacancies
should be filled up and if at all to be be filled up, should be filled up
as and when vacancies arise. Those are all matters left to the
conscious decision of the appointing authority. It is also open to the
competent authority to decide the mode and manner of selection
and prescribe the qualification and eligibility at the time of
recruitment. However, in the case of promotion, the incumbents are
entitled to stake a claim for vacancies which existed prior to the
amendment to be filled-up as per the un-amended rules. That is
based on the principle of legitimate expectation. Hence, we find it
difficult to appreciate the submission made by Shri R. P.Bhat, learned
Senior Counsel, that the qualification should be seen as on the date
of occurrence of vacancies, in the case of direct recruitment.
11. In Yogendra Singh (supra), this Court has dealt with the
similar situation and it has been held that “No candidate who does
not possess the currently prescribed qualifications, but who may
possess the educational qualifications prescribed earlier, can be said
to qualify or have any vested right to appointment even against
some earlier unfilled vacancy. Every candidate who aspires to fill any
vacancy must possess the educational qualifications that are then
prescribed”.
7
12. The reliance placed by the High Court in Vinod Kumar Sangal
v. Union of India and others2
, is of no assistance since it was a
case of promotion and bunching of vacancies for several years
where the requirement was in fact selection from panel prepared
year-wise.
13. No doubt, there is a proviso under the amended Rules that for a
candidate selected for training from amongst Group ‘D’ filed
employees, the qualification is only matriculation or equivalent. That
is a relaxation given under the Rules in respect of in-service
candidates for training followed by appointment. The respondents
are not in-service candidates. They can aspire for only direct
recruitment.
14. Thus, the view taken by the High Court that the appointment
will have to be made in terms of the Rules existing at the time of
occurrence of vacancy, for direct recruitment, placing wrong reliance
in Vinod Kumar Sangal (supra) does not reflect the correct legal
position. As we have already stated above, for promotees, they can
always stake a claim for promotion in respect of the vacancies
available prior to the amendment to be filled-up in terms of the
amended Rules. That is not the situation in the present case.
2 (1995) 4 SCC 246
8
15. Faced with such a situation, the learned Senior Counsel has
drawn our attention to the letter dated 01.12.2000 from the
Government of Orissa in the matter of employment of TRYSEM
Livestock Inspectors in various programmes in the Animal and Rural
Development Department. In that letter, the Government has made
it clear that the experience of the people for recruitment will have to
be seen, but the educational qualification has to be seen as on
December 1998, which is after amendment. However, the
Government has stated in the letter that the Department “has to
formulate a specific project for absorption of 500 unemployed
TRYSEM trained youths which in long run will help in optimum
development of the Department”. It may be relevant to note that
the very appointment is from trained candidates. That being the
stand taken by the Government, as reflected in the letter, we make
it clear that it will be open to the respondents to make an
appropriate representation before the Government for relaxation of
the qualification in view of their training, in which case, the
Government will consider the same expeditiously. It will also be open
to the respondents to bring to the notice of the Government that
after training, they had actually been engaged as Livestock
Inspectors on various occasions.
9
16. Subject to the above, the impugned Judgment of the High Court
dated 18.07.2016 in Writ Petition (Civil) No. 24638 of 2011 is set
aside and the appeal is allowed. No costs.
……….......................J.
[KURIAN JOSEPH]
...............................J.
[SANJAY KISHAN KAUL]
NEW DELHI;
AUGUST 14, 2018.
