MD. RAISUL ISLAM AND ORS.versusGOKUL MOHAN HAZARIKA AND ORS.

                       [2010] 7 S.C.R. 732


A                MD. RAISUL ISLAM AND ORS.
                                v.
            GOKUL MOHAN HAZARIKA AND ORS.
         (Special Leave Petition (C) No. 19188 of 2007)
                          JULY 06, 2010
B
        [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

       Assam Civil Services (Class-I) Rules, 1960: rr.4, 19 -
  Selection/Seniority - Selection process started on the basis
C of the existing Service Rules - Held: Existing rules would
  continue to govern the selection process, notwithstanding any
  amendment to the said Rules in the meantime - Seniority
  would thus be governed by the existing rule - Assam Civil
  Services (Class-I) Amendment Rules, 1986 - Service law -
D Seniority.
          An advertisement was published on 22.5.1984 for
    filling up 30 posts in each category of ACS Class-I and
    ACS Class-II Officers in terms of unamended rule 4 of the
E   Assam Civil Services (Class-I) Rules, 1960. Written test
    was conducted and the result was declared on 22.2.1986.
    Interview was conducted by APSC in respect of
    candidates successful in written examination ..A list of
    recommended candidates was submitted by the APSC to
    the Government on 22.6.1986. The amendment to rule 4
F   came subsequently on 21.7.1986 by the Assam Civil
    Services (Class-I) Amendment Rules, 1986 whereby the
    number of persons to be promoted from ACS Class-II to
    ACS Class-I was left to be decided by the Governor and
    the earlier quota of 50% for promotion was discontinued.
G
        129 ACS Class-II Officers, including the petitioners,
    were regularly promoted as ACS Class-I officers on
    11.9.1986. Thereafter on 22.10.1986, ACS Class-I Officers,
    including the respondents, were appointed by way of
H                              732
 MD. RAISUL ISLAM AND ORS. v. GOKUL MOHAN             733
             HAZARIKA AND ORS.
direct recruitment on the basis of the recommendations       A
made by the APSC. On 1.1.1993, a draft seniority list was
prepared wherein all 129 Officers promoted on 11.9.1986
were shown as senior to 45 ACS Class-I Officers who
were appointed by direct recruitment on various dates in
the month of October 1986.                                   B
    Respondents 1 to 8 challenged the draft seniority list
High Court held that tlie seniority of the direct recruits
and promotees would be governed by the unamended
rules as the selection process was initiated prior to the
1986 amendment. Hence the Special Leave Petition.            C
    Dismissing the Special Leave Petition, the Court
     HELD: 1. Once a process of selection is started on
the basis of the existing Rules of recruitment, the said
Rules would continue to govern the selection process,        D
notwithstanding any amendment which may haye been
effected to the said Rules in the meantime. Accordingly,
the seniority of members of the service would, no doubt,
be governed under Rule 19 of Assam Civil Services
(Class-I) Rules, 1960 but the selection process has to be    E
completed under Rule 4 in order to attract the provisions
of Rule 19. The High Court was right in directing that the
vacancies for which the advertisement was published in
1984 be filled up on the basis of the unamended Rule 4
which provided for quota between promotees and direct        F
recruits and in placing 45 of the direct recruits
immediately below the first 45 promotees out of the list
of 12-9- promotees in keeping with the said quota system
for the year 1986. (Paras 27, 28] (747-B-C; 746-G-H; 747-
~                                                            G
    Dr. K. Ramu/u & Anr. v. Dr. S. Suryaprakash Rao & Ors.
(1997) 3 SCC 59, Distinguished.
    Suraj Parkash Gupta & Ors. v. State of J & K and Ors.
(2000) 7 SCC 561; State of Uttaranchal & Anr. v. Dinesh      H
     734       SUPREME COURT REPORTS               [2010] 7 S.C.R.


 A Kumar Sharma (2007) 1 SCC 683; Uttaranchal Forest
     Rangers' Assn. (Direct Recruit) v. State of U.P. (2006) 10 SCC
     346; N. T. Devin Katti v. Karnataka Public Service
     Commission (1990) 3 SCC 157, referred to.

                          Case Law Reference:
 B
      (2000) 1 sec 561        referred to        Para 18

      (2007) 1 sec 683        referred to        Para 18

      (2006) 10 sec 346       referred to        Para 21
 c
      (1990) 3 sec 157        referred to        Para 22

      (1997) 3 sec 59         Distinguished      Paras 24, 25, 26

        CIVIL APPELLATE JURISDICTION : SLP (Civil) No .
. D 19188 of 2007.

         From the Judgment & Order dated 23.5.2007 of the High
     Court of Gauhati in Writ Appeal No. 5 of 2004.

          Vijay Hansaria, Sneha Kalita, Shankar Divate for the
 E   Petitioner.

         Parthiv Goswami, A. Henry, Rajiv Mehta, J.R". Luwang,
     Riku Sharma (for Corporate Law Group) for the Respondent.

           The Judgment of the Court was delivered by
 F
          ALTAMAS KABIR, J. 1. On the request of the Government
   of Assam to select candidates by way of direct recruitment for
   filling up 30 posts in each category of ACS Class-I and ACS
   Class-II. the Assam Public Service Commission, hereinafter
 G referred to as 'the ASPC', published an advertisement on 22nd
   May, 1984, for the aforesaid purpose in terms of Rule 4 of the
   Assam Civil Services (Class-I) Rules, 1960. Subsequently, the
   Government of Assam informed the APSC on 24th November,
   1984, that a decision had been taken to relax the upper age
 H limit by two years. Accordingly, a revised advertisement was
 MD. RAISUL ISLAM AND ORS. v. GOKUL MOHAN                 735
   HAZARIKA AND ORS. [ALTAMAS KABIR, J.]
published by APSC on 28th November, 1984, incorporating the       A
decision to relax the upper age limit by two years. Pursuant to
the said advertisement, a written test was conducted by the
APSC, as required under the aforesaid Rules, hereinafter
referred to as 'the 1960 Rules', between 5th June, 1984, to 1st
August, 1985, and the results of the said written examination     B
were declared on 22nd February, 1986. Vive voce test was
thereafter conducted by the APSC from 25th April, 1986, to
30th May, 1986, in respect of those candidates who had
qualified in the written examination. Thereafter, the APSC sent
its list of recommended candidates to the Government on 27th      c
June, 1986, for appointment to ACS Class-I and ACS Class-II
category officers.

     2. On 21st July, 1986, vide Notification of even date, the
Government of Assam amended the proviso to Rule 4(1) and
Rule 4(1 )(b) of the 1960 Rules whereby the number of persons     D
to be promoted from ACS Class-II to ACS Class I was left to
be determined by the Governor and the earlier quota of 50 per
cent for promotion was discontinued.

    3. At this stage, reference may be made to Rule 4 of the      E
1960 Rules, as it stood prior to the amendment of 21st July,
1986, namely,

    "Rule 4(1 ). Recruitment to the service after the
    commencement of these Rules, shall be by the following
    methods, namely:                                              F

      (a)   by competitive examination conducted by
            Commission;

      (b)   by promotion of confirmed members of the ACS          G
            (Class-II) who have passed the prescribed
            departme\}tal examination and successfully
            completed the prescribed training under Sub-
            Rule(3)of Rule 14 of ACS (Class-II) Rules, 1962;
            and
                                                                  H
    736          SUPREME COURT REPORTS                  [2010] 7 S.C.R


A          (c)     by selection, in special cases from among persons,
                   other than members of the Assam Civil Service
                   (Class-II) service in connection with the affairs of the
                   Government;

                   Provided that the number of persons recruited
B
                   under Clause (b) shall be 50 per cent of the total
                   number of vacancies to be filled in a year and the
                   persons recruited under Clause (c) shall not in any
                   year exceed two; provided further that the persons
                   recruited under Clause (c) shall not at any time
c                  exceed 5 per cent of the total strength of the cadre".

      4. As will be apparent from the above, under the
  unamended Rules, the number of persons to be recruited by
  way of promotion would be 50 per cent of the total number of
D vacancies to be filled in a year and the number of persons to
  be selected under clause (c) in said cases was not to exceed
  5 per cent of the total strength of the cadre at any time.

       5. While the aforesaid process of filling up the vacancies
E was being undertaken, the State Government as indicated
  hereinabove, amended some of the provisions of the 1960
  Rules by the Assam Civil Service (Class-I) (Amendment) Rules,
  1986, hereinafter referred to as 'the 1986 Amendment Rules',
  which were directed to come into force at once and were,
  therefore, given prospective operation. The amendment with
F which we are directly concerned in this case is Rule 2 of the
  Amendment Rules, which reads as follows :-

          "2. In the Principal Rules, in Rule 4 -

           (a)     for clause (b) of sub-rule (1 ), the following shall be
G
                   substituted, namely:-

                   "(b) by promotion from amongst the ACS (Class-II)
                   officers who have completed 5 years of continuous
                   service in ACS (Class-II) on the first day of January
H                  of the year in which recruitment is made"
  MD. RAISUL ISLAM AND ORS. v. GOKUL MOHAN                   737
    HAZARIKA AND ORS. [ALTAMAS KABIR, J.]
     (b}    forthe proviso to sub-rule (1), the following shall be   A
            substituted, namely:-

    "provided that the number of persons recruited under
    Clause (b} in any calendar year shall be such as may be
    determined by the Governor. Provided further that the            8
    persons recruited under Clause (c) shall not in any year
    exceed two and shall not, at any time exceed 5 per cent
    of the total strength of the cadre."

     6. The amended provisions of Rule 4, do away with the
quota of 50 per cent reseNation.for promotees and the number         C
of persons to be recruited in such manner in any calendar year
would after the amendment be such as might be determined
by the Governor. In other words, the fixed quota of fifty per cent
for appointment by way of promotion was replaced by a
discretion given to the Governor to indicate the number of           D
persons to be recruited by way of promotion.

     7. Pursuant to the aforesaid selection process, 129 ACS
Class~ll Officers, including the petitioners, were regularly
promoted as ACS Class-I Officers on 11th September, 1986.
                                                                     E
Thereafter, on 22nd October, 1986, 45 ACS Class-I Officers,
including the Respondents, were appointed by way of direct
recruitment on the basis of the recommendation made by the
APSC. On 16th December, 1989, as a matter of policy, the
State Government merged the ACS Class-II Officers with ACS
                                                                     F
Class-I Officers in order to eliminate the ACS Class-II category.
Pursuant thereto, on 1st January, 1993, a draft gradation list
of ACS Class-I Officers was published by the State
Government inviting objections thereto. In the said list, all 129
Officers promoted on 11th September, 1986, were shown as
senior to the 45 ACS; Class-I Officers, who had been appointed       G
by way of direct recruitment on various dates in the month of
October, 1986.

    8. Aggrieved by the above, the Respondent Nos.1 to 8
herein filed a Writ Petition challenging the draft seniority list    H
    738       SUPREME COURT REPORTS                    [2010] 7 S.C.R.


A dated 1st January, 1993, and the amendments effected to Rule
  4 of the 1960 Rules on 21st July, 1986. It may not be out of
  place to take note at this stage of the fact that the appointments
  of the petitioners and other similarly situated promotees made
  vide notification dated 11th September, 1986, were not
B challenged in the Writ Petition, nor was the notice of the Writ
  Petition served on them, although, they were made parties to
  the proceedings. During the pendency of the Writ Petition, the
  State Government published the final seniority list of ACS
  Class-I Officers in which all the 129 promotees were shown to
c be senior to the 45 direct recruits. It is the petitioners' case that
  the said seniority list was never challenged and had attained
  finality long ago.

          9. On 26th June, 2003, the learned Single . ludge of the
    High Court dismissed the Writ Petition holding that although the
D   process of selection had been initiated long before the
    amendment of 1986, the Government had decided not to make
    any appointments till the Rules were amended. The Respondent
    Nos.1 to 8 thereupon filed a Writ Appeal before the Division
    Bench of the High Court which was allowed on 26th August,
E   2006, upon the finding that the seniority of direct recruits and
    promotees would be governed by the unamended Rules as the
    selection process was initiated prior to the 1986 amendments.
    The State Government was, accordingly, directed to fix the
    seniority of the promotees and direct recruits by applying the
F   quota rule and to fix the seniority of all 45 direct recruits of 1986
    just below the 45 promotees, who had been promoted to ACS
    Class-I service. It is the petitioners' case that they had no
    knowledge about the Writ Appeal as they were not served with
    notice thereof. Review Petitions Nos.92 and 93 of 2006 were
G   filed on 9th November, 2006, by 12 of the promotees/
    petitioners herein on the ground that they had not been served
    with notice of the Writ Appeal. Thereupon, the Division Bench
    on 13th September, 2006, issued notice on the Review
    Petitions and stayed the operation of the judgment and order
H   passed on 26th August, 2006. Subsequently, on 25th
  MD. RAISUL !SLAM AND ORS. v. GOKUL MOHAN                       739
    HAZARIKA AND ORS. [ALTAMAS KABIR, J.]
September, 2006, the Division Bench modified its earlier order           A
dated 13th September, 2006 and directed that posting of
officers, if any, pursuant to the interim order, would be only with
the IE,ave of the Court.

     10. On 13th November, 2006, the State Government filed
its counter affidavit in the matter and on being satisfied that          B
notice of the Writ Appeal had not been served on the Review
Petitioners, the Division Bench permitted them to file their
affidavit in the Writ Appeal and the same was re-heard along
with the Review Petitions on merit. It is on a re-hearing of the
Writ Appeal and the Review Petitions that the order impugned             C
in Special Leave Petition (Civil) No.19188 of 2007 came to be
passed on 23rd May, 2007.

      11. In its counter affidavit filed in the Writ Appeal, the State
Government opposed the Writ Appeal contending that seniority,            D
upon merger of the ACS Class-I and ACS Class-II Officers, had
been rightly fixed by the State. After considering the
submissions made on behalf of the parties, the Division Bench,
while allowing the Writ Appeal, directed the authorities to
ascertain the vacancies available in the year 1986 for                   E
recruitment from each source in terms of the quota fixed by Rule
4 of the 1960 Rules and to recast their seniority by rotating the
vacancies following the quota and rota rules. The said order of
the Division Bench being impugned in this Petition, this Court
issued notice to the parties on 12th November, 2007, and
                                                                         F
directed status-quo to be maintained.

     12. Appearing in support of the Special Leave Petition, Mr.
Vijay Hansaria, learned Senior counsel, firstly referred to Rule
19 of the 1960 Rules dealing with seniority, which reads as
follows:                                                                 G

     "Seniority: (1) The seniority of members of the service shall
     be determined according to the order of merit in the lists
     prepared under sub-rule (5) of Rule 5 or approved under
                                                                         H
    740      SUPREME COURT REPORTS                  (2010] 7 S.C.R.


A         Rule 8. if the members join their appointments within 15
          days of the receipt of the order of appointment.

          Provided that in case a member is prevented from joining
          within the said period of 15 days by circumstances of a
          public nature or for reasons beyond his control, the
B         Governor may extend it for a further period of 15 days. If
          the period is not so extended and the member of the
          service joins within the period extended under sub-rule (2)
          of Rule 15, his seniority shall be determined in accordance
          with the date of joining.
c
          Provided further that the members of the service recruited
          in a year under clause (b) and (c) of Rule 4 shall be senior
          to members recruited in the same year and in the same
          batch under clause (a) of Rule 4."
D
       13. What is important for our purpose is the second
  proviso which indicates that the number of promotees in a year
  under Clauses (b) and (c) of Rule 4 would be senior to members
  recruited by direct recruitment in the same year and in the same
  batch under Clause (a) of Rule 4. The language of the second
E proviso to Rule 19 is clear and unambiguous that in a year
  candidates promoted to the higher post under Rule 4 would be
  senior to candidates recruited in the same year and in the same
  batch under Clause (a) of Rule 4 of the 1960 Rules.

F      14. Mr. Hansaria then drew our attention to Rule 26, which
  provides that "the seniority of members of the service promoted
  to the senior grade time scale, shall be in the order in which
  their names are arranged by the Selection Board under Sub-
  Rule (2) of Rule 25 for the purpose of promotion to that grade."
G Learned counsel also referred to Rule 27, wherein the Governor
  of the State was also empowered to dispense with or relax any
  Rule on being satisfied that the operation of any of the Rules
  caused undue hardship in any particular case. Mr. Hansaria
  submitted that after the Amendment Act was enacted on 21st
H July, 1986, whereby Rule 4 was also amended, the Governor
   MD. RAISUL ISLAM AND ORS. v. GOKUL MOHAN                   741
     HAZARIKA AND ORS. [ALTAMAS KABIR, J.]
 was given the power to determine the number of ACS Class-            A
 II officers to be promoted as a result whereof, the quota system
 in relation to recruitment of ACS Class-I Officers was
 discontinued. Adcording to Mr. Hansaria, the quota system had
 broken down, necessitating the amendment.
                                                                      B
        15. Mr. Hansaria contended that the direct recruits had
  been appointed long after the appointment by promotion of the
  Petitioners under the Rules and could not, therefore, be given
  seniority over the promotees. Mr. Hansaria submitted that in this
  petition what was of utmost importance was not the question         C
  of recruitment, but how seniority was to be determined inter se
  with those who had been promoted earlier. The question posed
. is: Would the rules relating to seniority which were applicable
  at the time of recruitment also determine seniority even if the
  Rules were subsequently altered?
                                                                      D
       16. Mr. Hansaria submitted that since the quota and rota
  rule had not been followed over the years, the same was
  discontinued by virtue of the amendments to the 1960 Rules
  which became effective from 21st July, 1986. Although, the said
  amendments were challenged by the respondents, such                 E
  challenge was later given up. Despite the above, the High Court
  quite erroneously relied on the unamended Rules in arriving at
  a final decision in the appeal. Mr. Hansaria urged that when
. the Rules relating to quota had been discontinued by the 1986
  Amendment, the High Court erred in not following the Amended        F
  Rules which came into effect on 21st July, 1986, after the
  recruitment of both the petitioners as well as the respondents
  herein. Mr. Hansaria contended that even if the quota Rule is
  held to be applicable, the same had broken down on account
  of not having been followed for a long period of time, seniority    G
  had to be fixed by applying the amended Rules.

      17. Mr. Hansaria then urged that it was a well-settled
 principle that direct recruits cannot claim appointment from the
 date on which the vacancy in the quota for direct recruitment
 occurred before their selection, which principle had been            H
    742      SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A   incorporated in the proviso to Rule 4(b) of the 1960 Rules, as
    amended.

        18. In this regard, Mr. Hansaria referred to the decision of
  this Court in Suraj Parkash Gupta & Ors. vs. State of J & K
  and Ors. [(2000) 7 sec 561], wherein the very same question
8
  fell for consideration and this Court observed that in service
  jurisprudence, a direct recruit can claim seniority only from the
  date of his regular appointment and not from the date when he
  was not even born in the service. Reference was also made to
  the decision of this Court in State of Uttaranchal & Anr. vs.
C Dinesh Kumar Sharma [(2007) 1 SCC 683], where the earlier
  decision in Suraj Parkash Gupta's case (supra) was reiterated
  and it was re-emphasized that a person appointed on promotion
  cannot get seniority of any earlier year but shall get the seniority
  of the year in which his/her appointment is made. Several
D decisions were also cited by Mr. Hansaria on the same lines,
  to which reference will be made, if necessary.

        19. Mr. Hansaria contended that the High Court had
    committed an error in relying upon the unamended provisions
E   of Rule 4 of the 1960 Rules, instead of relying upon the
    amended Rules which were relevant to the case of the
    respondents since the quota Rules had broken down when the
    process of recording seniority had been commenced.

       20. Mr. Parthiv Goswami, learned Advocate, representing
F the Respondent Nos.1 to 8 pointed out that Rule 4(1) provided
  the method of recruitment to the service and the proviso to the
  said Rule provided that 50% of the total vacancies in a given
  year was to be filled up by promotion of confirmed members
  of the Assam Civil Service (Class-II). Furthermore, Rule 19(1)
G provided that the promotees would be senior to direct recruits
  in case of appointment in the same year and in the same batch.
  Mr. Goswami contended that the State Government on 21st
  July, 1986, amended Rule 4 and the Governor was authorized
  thereunder to determine the number of promotees to be
H accommodated, but as rightly pointed out by the Division
 MD. RAISUL ISLAM AND ORS. v. GOKUL MOHAN                  743
   HAZARIKA AND ORS. [ALTAMAS KABIR, J.]
Bench, the amended Rules would not apply to the direct recruits    A
whose selection process had commenced under the
unamended Rules.

     21. Mr. Goswami submitted that promotees appointed in
excess of the quota reserved for them could only be described
                                                                   B
as ad hoc and seniority could not be given to such promotees
on the basis of such ad hoc promotions. In support of his
submissions Mr. Goswami referred to the decision of this Court
in Uttaranchal Forest Rangers' Assn. (Direct Recruit) vs. State
of UP. [(2006) 10 sec 346), wherein the said proposition was
approved and it was further held that promotees who were           C
appointed in 1991 could not claim seniority over direct recruits
who were substantively appointed at a prior point of time in
                               0
1990.

      22. Reference was also made to the decision of this Court    o
in N. T. Devin Katti vs. Karnataka Public Service Commission
[(1990) 3 sec 157], wherein it was held that appointment
made in terms of an advertisement published prior to
amendments effected to the Rule or Order would normally not
be affected by the amendment. In other words, where the            E
selection process is initiated by issuing an advertisement
inviting applications, selection normally should be regulated by
the Rule or Order then prevailing. Several other decisions were
also referred to where the same principles have been
explained. Mr. Goswami submitted that the process of
                                                                   F
selection in the instant case had commenced before the
amendments came into force and since it was held that only
 prospective operation could be given to the amended Rules,
the process of selection started under the unamended Rules
would have to be continued and completed thereunder. Mr.
 Goswami submitted that the submissions made on behalf of          G
 the petitioners that the selection would be in accordance with
 the amended Rules was contrary to the law as established and
 was, therefore, liable to be rejected.

     23. We have carefully considered the submissions made         H
    744     SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A   on behalf of the respective parties and the decisions cited by
    them. The point at issue in this SLP is confined to the question
    as to whether the 1960 Rules as amended would govern the
    seniority of the persons recruited in the process of selection
    commenced earlier to the amendment. It is not disputed that
B   an advertisement was published on 22nd May, 1984, for filling
    up 30 posts in each category of ACS Class-I and ACS Class-
    11 Officers in terms of unamended Rule 4 of the 1960 Rules and
    that a written test was conducted by the APSC under the said
    Rules between 5th June, 1984 and 1st August, 1985 and the
C   result of the said written examination was declared on 22nd
    February, 1986. Viva-voce test was conducted by the APSC
    from 25th April, 1986, to 30th May, 1986, in respect of those
    candidates who had qualified in the written examination. A list
    of recommended candidates was thereafter submitted by the
    APSC to the Government on 22nd June, 1986. It is also not
D   disputed that soon thereafter on 21st July, 1986, the proviso
    to Rule 4(1) and Rule 4(1 )(b) of the 1960 Rules were amended
    whereby the quota system was sought to be discarded and
    discretion was given to the Governor to determine the number
    of appointments to be made by way of promotion in a given
E   case.

        24. It is evident from the chronological list of events that
  the process of selection for filling up the 30 posts in each
  category of ACS Class-I and ACS Class-II Officers commenced
F with the publication of the advertisement inviting applications
  which was published on 22nd May, 1984. Pursuant thereto,
  written examinations were also held and the result of the written
  examinations was declared on 22nd February, 1986, and after
  completion of the viva-voce test, a list of recommended
G candidates was submitted by the APSC to the Government on
  22nd June, 1986. The amendment to Rule 4 came subsequently
  on 21st July, 1986. The submission advanced on behalf of the
  Respondent Nos.1 to 8 herein is that once the process had
  commenced under the unamended Rules, appointments would
H have also to be completed under the said Rules, even though
  MD. RAISUL !SLAM AND ORS. v. GOKUL MOHAN                    745
    HAZARIKA AND ORS. [ALTAMAS KABIR, J.]
the Rules were amended in the meantime. The Division Bench            A
of the High Court, while re-hearing the Writ Appeal and the
Review Petitions, reiterated the views expressed earlier on 26th
August, 2006, holding that the seniority of direct recruits and
promotees would be governed by the unamended Rules as the
selection process was initiated prior to the 1986 amendments.         B
Consequently, the Division Bench also held that the seniority
between the promotees and direct recruits was to be
determined on the basis of the quota fixed for recruitment from
each source under Rule 4 of the 1960 Rules on the basis of
the vacancies available in the calendar year, by applying quota       c
and rota selectees to the extent of the vacancies in their quota
as envisaged in the proviso to Rule 4(1) of the Rules as they
stood prior to the 1986 amendments. The Division Bench,
accordingly, amended its earlier judgment dated 24th August,
2006 and set aside the provisional seniority list of ACS Class-       D
I Officers with the aforesaid modification and directed the
authorities to recast the seniority in accordance with the said
directions. While arriving at the aforesaid decision, the Division
 Bench had occasion to refer to the decision of this Court in Dr.
 K. Ramulu & Anr. vs. Dr. S. Suryaprakash Rao & Ors. [(1997)
                                                                      E
3 sec 59], wherein the question which fell for consideration
was whether the Government was entitled to take a decision
 not to fill up existing vacancies on the relevant date unless the
 process of amendment was completed. This Court, after taking
 into consideration Rule 4 of the A.P. Subordinate Service
 Rules, held that the object of the said Rule was that all eligible   F
candidates should be considered in accordance with the Rules.
This Court held that the Government was entitled to take a
 conscious decision not to fill up any of the vacancies before
 the proposed amendment to the Rules was effected.
                                                                      G
     25. While at first glance the decision in K. Ramulu's case
(supra) may appear to be at par with the facts of the instant
case, there is yet a distinction which cannot be ignored. While
in the present case a process of selection had been set in
motion under the existing Rules and a list of selected                H
    746     SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A candidates had also been recommended by the APSC, in K.
  Ramulu's case (supra) the Government had merely taken a
  decision not to fill up the vacancies until the amended Rules
  came into force. In K. Ramulu's case (supra) r10 process had
  been initiated for the purpose of filling up any of the vacancies.
B In such circumstances, where no candidate had either been
  invited or interviewed or selected for appointment, as has 1:1een
  done in the instant case, this Court rightly held that the
  Government was competent to take a decision not to fill up the
  vacancies.
c       26. There can be no dispute that as a matter of policy the
  (3overnment may take a conscious decision not to fill up
  vacancies for justifiable reasons, but at the same time, having
  started a process of selection under the unamended Rules, it
  cannot take the stand that it still was entitled not to make
D appointments of persons from amongst the candidates selected
  in terms of the process initiated under the old Rules. In fact, in
  the instant case, the recommendation made by the APSC was
  submitted to the Government on 22nd June, 1986, before the
  amended Rules came into operation on 21st July, 1986
E whereby the quota system was discarded. In such a situation,
  in our view, the decision in K. Ramulu's case (supra) cannot
  be applied to the facts of this case.

       27. We are unable to agree with Mr. Hansaria that the High
F Court had committed an error in relying on the unamended
  Rules since the law has been well settled that the process of
  selection commenced on the basis of the Rules then in
  existence would continue under the said Rules, even though the
  Rules may have been amended in the meantime. Accordingly,
G the seniority of members of the service would, no doubt, be
  governed under Rule 19, but the selection process has to be
  completed under Rule 4 in order to attract the provisions of
  Rule 19. The vacancies for which the advertisement had been
  published in 1984 were directed to be filled up by the High
  Court on the basis of the unamended Rule 4 which provided
H
 MD. RAISUL ISLAM AND ORS. v. GOKUL MOHAN                    747
   HAZARIKA AND ORS. [ALTAMAS KABIR, J.]
for quota between promotees and direct recruits and,                A
accordingly, placed 45 of the direct recruits immediately below
the first 45 promotees out of the list of 129 promotees in
keeping with the said quota system for the year 1986.

    28. We agree with the view taken,by the High Court which        8
has been reiterated by Mr. Goswami in keeping with the well-
established principle that once a process of selection is started
on the basis of the existing Rules of recruitment, the said Rules
will continue to govern the selection process, notwithstanding
any amendment which may have been effected to the said Rules        C
in the meantime.

    29. The decision of the High Court does not, therefore,
warrant any interference and the Special Lea·1e Petition is,
accordingly, dismissed, but, without any order as to costs.

D.G.                        Special Leave Petition dismissed.