Supreme Court of India
STATE OF RAJASTHANversusR. DAYAL AND ORS.
- Citation
- 1997 INSC 148
- Decided
- 17 February 1997
- Disposal
- Disposed off
Holding
Vacancies that arise after the amendment of the Rules must be filled in accordance with the law as on the date of the vacancy, rendering post‑amendment appointments made under the old rules only temporary and subject to fresh selection.
Summary
The case concerned appointments of two engineers, B.S. Bhatnagar and H.L. Meena, to vacancies in the Rajasthan Service of Engineers (Building and Roads Branch) after the Rules were amended on 24 July 1995. The respondents challenged the appointments, arguing that the amended rules, which introduced new qualification criteria, should govern vacancies that arose after the amendment. The State contended that the vacancies had been identified under the pre‑amendment Rule 9 and that the Departmental Promotion Committee had selected candidates in accordance with the rules then in force. The Supreme Court held that vacancies which arise after a statutory amendment must be filled according to the law in force at the time of the vacancy, and that appointments made under the old rules after the amendment are only temporary pending fresh selection. Consequently, the Court set aside the High Court judgment, directed the government to constitute a new DPC within eight weeks and to re‑process the promotions, while leaving the benefits already given untouched. The appeal was disposed of, with no costs awarded.
Issues considered
- Whether appointments made after the amendment of the Rajasthan Service of Engineers Rules, for vacancies that arose before the amendment, are valid under the pre‑amendment rules.
- Whether vacancies that arise after the amendment must be filled in accordance with the amended rules.
- Whether the government may treat such post‑amendment appointments as temporary pending fresh selection by a Departmental Promotion Committee.
- Whether the High Court's judgment upholding the appointments should be set aside.
Subjects
Service lawPromotionDepartmental Promotion CommitteeVacancyAmendment of rulesTemporary appointmentRajasthan Service of Engineers RulesSelection criteriaCarried forward vacancy
Judgment
y
A STATE OF RAJASTHAN
v.
R. DAYAL AND ORS.
FEBRUARY 17, 1997
B [K. RAMASWAMY AND G.T. NANAVATI, JJ.)
Service Law :
Rajasthan Service of Engineers (Building and Roads Branch) Rules
c 1954:
Rules 9, 23, 23-A and 24-A-Selectio1r-Selection for future vacancies
made under existing rules-Appointment made after amendment of
Rules-Appointment not in accordance with amended rules-Ehect of-Held,
vacancies that arose subsequent to the amendment of the Rules are required
D to be filled in in accordance witli the law existing as on the date when the
vacancies arose-Under Rule 24-A(ll-B) the panel can be revised in accord-
ance with the 1Ules and appointment can be made in accordance there-
witlt-Even a carried forward vacancy is required to be considered in
accordance with the law existing unless suitable relaxation is made by the
E Govemment-Govemment required to constitute the DPC which would con-
sider the claims of eligible candidates as per Rules-It would be fresh selec-
tion and appointments in accordance with law-Appointments of those
respondents made after the amendment of the rules must be treated to be only
temporary appointments pending consideration of claims of all. eligible can-
didates.
F
Y. V. Rangaiah v. J. Sreenivasa Rao, [1983) 3 SCC 284, cited .
. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1564 of
1997.
G From the Judgment and Order dated 30.8.96 of the Rajasthan High
Court in D.B.C.W.P. No. 3759 of 1996.
Aruneshwar Gupta for the Appellant.
Jayant Das, Manoj Kr. Das, and J.K. Das for the Respondent No.
H 13.
108
STATEv. R.DAYAL 109
P.P. Rao and S.V. Deshpande for the Respondent. A
The following Order of the Court was delivered :
Leave granted.
This appeal by special leave arises from the judgment of the Division B
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 an-
ticipated as on April 1, 1995, the Departmental Promotion Committee (for
short, the "DPC") was convened on April 13, 1995 and it selected nine C
candidates 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 oJ Engineers (Building and 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. D
Meena, is made in accordance with the Rules.
Shri Aruneshwar Gupta, learned com:1sel appearing for the State,
contends that under Rule 9 of the Rules, subject to the provisions 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 E
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 an-
ticipated vacancies, the DPC considered the claims of all the eligible
candidates as per the Rules then existing and selected them. A list of F
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 sekcteJ on merit. As a consequencc, they
were appointed by promotion in accordance with the Rules, though Rule
23- A a nd R u!Seh2~- A camDe to b e introdduc~d by statutory am~ndfment w.e.f.
1 1 24 19 95
uy , 1
. n ayant as, 1earne semor counse1 appearmg or respon-
G.
dent No. 13, promotee- respondent, contends that under Rule 23 of the
~ules, .the criteria prescribed as on the date of the selection by the DPC
is req?tred to be applied. Since the existing criteria had been applied, their
sel~ct10n was cor.rect in law. Consequently, the vacancies which arise
dunng that financial year were required to be filled u f h
P rom amongst t e H
110 SUPREME COURT REPORTS [1997] 2 S.C.R.
A 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 l(ii) with ~
immediate effect, the amended Rules having come into force from July 24,
B 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 "Addi. Chief Engineer" and
c
"Superintending Engineers" the expression "(Civil)" shall be added
and 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 equivalent
D
thereto by Government with 5 ye~rs service as Superintending
Engineer (Civil)"
(iv) After serial number 2, the following new serial number and
entries thereto shall be inserted, namely :
E 1 2 3 4 I 5 6 I 7
"2-A Addi. 100% Superintending Must hold a degree in
Chief by prom- Engineer Engineering (Meehan-
(Meehan- otion (Mechanical) ical) of a .University
ical) established by law in
F India or qualifi-cation
declared equivalent
thereto by Govern-
mt:nl with 5 years
service as Superin-
tending Engineer
G
I (Mechanical)."
As a consequence, any appointment made as on that date should be
consistent with the above Rule. In support thereof, he placed reliance on
the decision of this Court in Y. V. Rangaiah v. J. Sreenivasa Rao, [1983] 3
H sec 284.
STATEv. R. DAYAL 111
The question, therefore, is : whether the view taken by the High A
Court in the impugned judgment is correct in law? Jt is true, a<; 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 B
thereunder was also followed. The revised criteria of eligibility and proce-
dure for promotion of the officers has been prescribed under Rule 24-A
of the Rules. Sub-rule (2) of Rule 12 envisages as unJer :
"The persons enumerated in Column 5 or the relevant Column
regarding 'posts from which promotion is to be made' as the case C
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 experience on the first day of the month of April .
of the year of selection as specified in Column 6 or in the relevant D
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 con- E
sideration against vacancies existing as on 1st April of the year of selection.
But since the Rules came to be amended and the amendment 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 F
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 appoint-
ment 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 admit-
tedly arose after the amendment of the Rules came into force, according G
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. H
\
y
/
112 SUPREME COURT REPORTS [1997) 2 S.C.R.
A 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
B the Rules in accordance with law then existing since the anticipated vacan-
cies also must have been taken into consideration in the light of Rule 9 of
the Rules. But after 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 '
C courses are open to the Government or the appointing authority, viz., either
j to make temporary promotions for the ensuing financial year until the DPC
·meets or in exercise of the power under Rule 24-A(ll-B), they can revise
the panel already prepared in accordance with the Rules and make ap-
pointments in accordance therewith.
D
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 I
difficult to give acceptance to the contention. Even a carried forward
vacancy is required to be considered in accordance with the Jaw existing
E 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
Bhatanagar and.H.L Meena must be treated to be only temporary appoint-
ments pending consideration of the claims of all the eligible persons
F
belonging to General and Reserved quota separately as per Rules.
Equally, one B.L. Kankas (Scheduled Tribe) was appointed hy
· 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
G appointment has not been challenged, though direction to the c0ntra 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
H make fresh selection and appointments in accordance with law. Whatever
~I
STATEv. R.DAYAL 113
benefits have been given under the impugned order cannot be taken away A
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 receipt of the order and take
speedy action accordingly.
B
The appeal is accordingly disposed of. No costs.
R.P. Appeal disposed of.
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