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PETITIONER: RAJASTHAN PUBLIC SERVICE COMMISSION

       Vs.

RESPONDENT: CHANAN RAM & ANR.

DATE OF JUDGMENT:       26/02/1998

BENCH: S.B. MAJMUDAR, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                           W I T H   [Civil Appeal No. 1109 of 1998 (Arising of S.L.P,(C) No.  16267 of 1997); and Civil Appeal No. 1110 of 1998 (Arising            out of S.L.P. (C) No, 18511 of 1997)]                       J U D G M E N T S.B.Majmudar, J.      Leave granted in all these Special Leave Petitions.      By concent  of  learned  advocated  appearing  for  the contesting parties  all these appeals were heard finally and are being disposed of by this common judgment.      The appellants  in these  appeals are  aggrieved by the judgment and  order rendered  by the  Division Bench  of the High Court of Rajasthan in D.B. Civil Special Appeal No, 508 of 1996.  By the impugned judgment the Division Bench of the High  Court   allowed  the   appeal  of  the  original  writ petitioner -common  respondent no  1 in  these appeals whose writ petition  was dismissed  by the learned Single Judge at admittance stage.  As  a  result  of  the  decision  of  the Division Bench  the Civil Special Appeal was allowed and the appellant State  of Rajasthan in Civil Appeal arising out of Special Leave  Petition  (C)  No.  18511  of  1997  and  the Rajasthan Public  Service Commission,  Ajmer being appellant in Civil Appeal arising out of Special Leave Petition (C) No 9698 of  1997, were directed to proceed with the recruitment process pursuant  to the  advertisement-Annexure  PP-1,  for making appointments  to the  posts  of  Assistant  Directors (Junior), re-designated as marketing Officers. Appellants in appeal arising  out  of  S.L.P(C)  No.  16267  of  1997  are candidates who  appeared at  the screening test conducted by the Rajasthan Public Service Commission pursuant to a second advertisement which  was impugned by respondent no 1 in h is writ petition      In order  to appreciate  the common  grievance  of  the appellants against  t he  very same judgment of the Division Bench of  the High  court a few relevant facts will  have to be noted at the outset. Introductory Facts      Common respondent  no 1,  pursuant to  an advertisement dated 05th  November 1993  issued by the appellant-Rajasthan Public Service  Commission for  recruitment of  23 posts  of

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Assistant  Directors   (Junior),  had   applied  for   being considered for  one   of  the  advertised  posts  as  direct recruit. It is not in dispute that respondent no 1, who will hereinafter   be referred  to as  the ‘writ  petitioner  was already working in the same department and as a departmental candidate he had offered his candidature as a direct recruit for one  of the  advertised posts. It is also not in dispute between the parties that the said posts were governed by the Rajasthan State  Agricultural Marketing  Service Rules, 1986 (hereinafter referred  to as  ‘ the Service Rules). The said advertisement dated 05th November 1993, which is Annexure P- 1 in  the case,  was issued  by the Rajasthan Public Service Commission pursuant  to the  requisition date  01st November 1993  sent   by  the   State  of  Rajasthan  for  initiating recruitment  process   by  the   Rajasthan  Public   Service Commission for  filing up  these posts.  The last  date  for inviting applications from eligible candidates, as mentioned in the  said advertisement,  was 31st  December 1993.  Three days prior to the said last date the e State of Rajasthan by its  communication   dated  28th  December  1993  asked  the Rajasthan Public Service Commission not to go ahead with the said recruitment  as the  relevant rules,  pertaining to the recruitment to  the  posts  concerned,  were  sought  to  be amended Result  was that  after the  expiry of the last date for inviting applications from eligible candidates for being considered for  appointments  to  the  advertised  posts  of Assistant Directors  (Junior) in  the Rajasthan Agricultural Marketing Service,  the e  proceedings remained  dormant and the State  Public Service Commission did not proceed further in the matter, it is not in dispute between the parties that the writ  petitioner at the relevant time being eligible for being considered  for such  selection had,  pursuant to  the advertisement Annexure  P-1, applied  in time  On 10th April 1995 the State of Rajasthan got the Service Rules amended in exercise of  powers conferred  by the proviso to Article 309 of the  Constitution  of  Indian  whereby  the  Governor  of Rajasthan made  requisite amendments  to the  said Rules. We will refer to these amended rules at an appropriate place in the latter part of this judgment. To resume the narrative of events as  the Service  Rules were  got amended the State of Rajasthan  withdrew  its  earlier  requisition,  dated  01st November 1993 as submitted to the Public Service Commission, by communication  dated 03rd  August 1995.  As  the  earlier requisition for recruitment of suitable candidates to the 23 posts of  Assistant Directors  (Junior) was withdrawn by the State, the  Rajasthan Public  Service Commission also by its notification dated  23rd August  1995 cancelled  the earlier advertisement,  Annexure   P-1.  Therefore   on  the   fresh requisition being  issued by  the State  for filling  up  26 posts of Marketing  Officers under the amended Rules a fresh advertisement  was  issued  on  08th  January  1996  by  the Rajasthan  Public   Commission  inviting  applications  from eligible candidates  for being considered to be appointed to the aforesaid  26  posts.  The  fresh  advertisement  is  at Annexure P-4. The writ petitioner pursuant to the said fresh advertisement  applied   once  again  and  put  forward  his candidature. Pursuant  to  the  said  fresh  application  by respondent  no.   1-writ  petitioner  the  Rajasthan  Public Service Commission asked him to appear before the Commission on 18th  August 1996  for screening  test. Or receipt of the said intimation  instead of appearing for the screening test respondent no.  1 filed  writ petition in the Rajasthan High Court on  08th August  1996.  His  contention  in  the  writ petition before  the learned  Single Judge  was that despite the issuance  of fresh advertisement for filling up 26 posts

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of Marketing  Officers in  the Rajasthan  State Agricultural Marketing  Serve,   as  per  the  amended  Rules,  the  writ petitioner who  had earlier  applied pursuant  to the  first advertisement Annexure  P-1 dated  05th  November  1993  was entitled to  be considered  in the  light of  the said first advertisement, qua  the  23  vacancies  which  were  already existing  in  the  State’s  Agricultural  Marketing  Service between 1986  and 1992,  and for  filling up  those  earlier vacancies the  amended rules of 1995 could not be pressed in service and  those vacancies  had to be filled up as per the earlier unamended  Service Rules.  Learned Single  Judge did not accept  the said  contention and  summarily rejected the writ petition.  The Division  Bench by the impugned judgment and order  in the  Civil Special  Appeal moved  by the  writ petitioner, took a contrary view and held, relying upon some of the  decisions of  this Court, that for old vacancies the amended rules  could not  be pressed in service and they had to be  filled up  pursuant to  the  earlier  existing  rules during the  time when  these vacancies occurred in the State Service. As  noted earlier  the aforesaid  judgment  of  the Division Bench  of the High Court is brought on the anvil of scrutiny of  this Court  in the  present appeals on grant of special leave  to appeal to the aggrieved respondents in the Civil Special Appeal before the High Court. Rival Contentions      Shri P.P. Rao, learned senior counsel appearing for the appellants in  appeal arising  out of Special Leave Petition (C) No.  16267 of 1997 and learned senior counsel, Shri M.N. Krishanamani, appearing  for State  of Rajasthan  in  appeal arising out  of Special Leave Petition (C) No. 18511 of 1997 submitted in  support of  their appeals  that  the  Division Bench of  the _High Court patently erred in relying upon the judgments of  this Court which were not applicable at all on the facts  of the  present case.  It was  submitted that  in spite of  the fact  that  the  writ  petitioner  might  have applied pursuant  to the first advertisement Annexure P-1 he had no  vested right  to insist that the recruitment process pursuant to  the said  advertisement must  be continued  and must be  brought to its logical end. That it was open to the State authorities  to direct  the Public  Service Commission not to  proceed further  with the  said recruitment  process especially when  the rules  of recruitment were sought to be amended in  the meantime.  Not only that, the rules were got amended as a result of which the erswhile posts of Assistant Directors (Junior)  cased to  exist and  re-cadrisation  was done in the State Agricultural Marketing Service. Instead of the post  of Assistant  Director (Junior),  a  new  post  of Marketing Officer was created and simultaneously the post of Assistant Director  (Senior) was abolished and a new post of Assistant Director  was created Consequently for these newly created posts  of Marketing Officer when fresh advertisement was issued  by the Public Service Commission pursuant to the requisition furnished  by the State of Rajasthan for filling up 26  vacancies in  these newly  created posts, the earlier advertisement which  was  already  cancelled  could  not  be relied upon  by  the  writ  petitioner  for  insisting  that despite this change in the recruitment rules and despite the abolition of  the old  posts of Assistant Directors (Junior) the old  advertisement for filling up the non-existing posts should still be continued and should be taken to its logical end. That  this  was  not  a  case  where  earlier  existing vacancies in  the same posts were sought to be filled in  by applying   the    new   recruitment   rules   changing   the qualifications for  appointment to  the  very  same  earlier advertised posts  and hence  reliance placed   by  the  High

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Court  on   the  decision   of  this  Court  was  completely misplaced.      On the  other hand,  it was submitted by learned senior counsel Shri  V.N.Ganpule for  the writ  petitioner that  23 vacancies which  were already  advertised  pursuant  to  the first advertisement  dated 05th  November 1993  were carried forward in  the second advertisement dated 08th January 1996 Annexure P-4.  Therefore, the old vacancies which had arisen between 1986  and 1992  remained to  be governed by the then existing rules  and such vacancies could not be filled up by applying the  amended rules  of  1995.  It  was,  therefore, submitted by  him that  the High  Court had rightly followed the decisions of this Court which had consistently taken the view that  for recruitment on the vacancies which had arisen in the past the then existing old rules of recruitment would apply and  not the subsequent new rules of recruitment. That the new  rules would apply only for filling up new vacancies which might  arise after  the  new  or  amended  rules  were promulgated and,  therefore, no  error was  committed by the Division Bench of the High Court in arriving at the impugned decision. Shri  Ganpule further submitted that this is not a case in  which the old posts of Assistant Directors (Junior) were abolished,  on the  contrary, by the amended rules they were re-designated  as Marketing  Officers.  The  salary  of these posts  remained the same, mode of recruitment remained the same  save  and  except  the  fact  that  an  additional qualification of  M.Sc. First Class was also added as one of the  eligibility   criteria.  But   the  nature   of  duties substantially remained  t he  same, pay  scales remained the same and consequently it could not be said that the posts of Assistant Directors  (Junior) were  abolished and  in  their place new posts of Marketing Officers were created for which new advertisement  could have been issued in connection with earlier existing old vacancies which  were carried forward. In the  light  of  the  aforesaid  rival  contentions  t  he following points arise for our consideration : 1.   Whether the  posts of  Assistant Directors  (Junior) in      the Rajasthan  State Agricultural Marketing Service got      obolished and substituted by the newly created posts of      Marketing Officers as  per the amendment to the Service      Rules of  1986 pursuant  to  notifications  dated  19th      April 1995 and 26th April 1995. 2.   If the  answer to the first point is in the affirmative      whether the  old advertisement, Annexure P-1 dated 05th      November 1993  for recruitment  from open market by way      of direct  recruitment of  eligible candidates  for the      said 23  advertised posts  could  survive  any  further      after the amendment to the rule in 1995. 3. If  the answer  to the  second point  is in  the negative whether any  fault can  be lound  with the  fresh process of recruitment  initialed   by  the  Rajasthan  Public  Service Commission pursuant  to the advertisement dated 08th January 1996, Annexure P-4. 4.   What final order ?      We shall consider the aforesaid points seriatim Point No. 1      In order  to resolve  the controversy  centering  round this point  it is  necessary to  note the  relevant  Service Rules. Rajasthan State Agricultural Marketing Service Rules, 1986 were  got promulgated by the State of Rajasthan through the Governor in exercise  of the powers under the proviso to Article 309  of the  Constitution of India. The notification promulgating  these  rules  was  dated  21st  January  1986. Pursuant  to   these  rules   Rajasthan  State  Agricultural Marketing Service  was constitute.  ‘Service was  defined by

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Rule  2   sub-rule  (i)   to  mean,   ’the  Rajasthan  State Agricultural Marketing  Service’. Rule  4 of  the said Rules found in  Part II  pertaining to  caption ‘’Cadre’ lays down the composition  and strength  of the  service. Sub-rule (1) thereof  provides  that,  the  strength  of  posts  in  each category  shall   be  such  as  may  be  determined  by  the Government from  time to  time, provided that the Government may -  (a) create  any post permanent or temporary from time to time  as may  be found necessary and may abolish any such posts in  the like  manner  without  thereby  entitling  any person to any compensation.’ Rule 4 sub-rule (2) (b) enables the State  to leave  unfilled or hold in abeyance of abolish or allow to lapse any post, permanent or temporary from time to  time,  without  thereby  entitling  any  person  to  any compensation. As  per Rule  5 sub-rule  (1) (d), All persons recruited to  the service  in accordance with the previsions of these rules except those appointed on an urgent temporary basis under  rule 26  would, amongst others, get included in the said service governed by  the Rules.      So  far  as  the  recruitment  to  the  said  posts  in different cadres  in the  said service is concerned Part III deals with  the said topic of ‘recruitment’. Rules  6 of the Rules provides  for ‘Methods  of recruitment’.  Sub-rule (1) thereof lays  down that,  ‘recruitment to  the posts  in the service after  the commencement of these rules shall be made by the   following  methods in  the proportion  indicated in column 3 of schedule’. One of the modes of recruitment is by direct recruitment  in accordance with part IV of the Rules. As we  are concerned with direct recruitment Part IV becomes relevant. It  deals with ‘Procedure for direct recruitment’. Rule 17  lays down that, ‘application for direct recruitment to the  post or posts in the service shall be invited by the Commission by  advertising the vacancies to be filled in the Newspapers or in such other manner as they may deem fit’. We may at  this stage  also refer  to rules  which are found in Part III  regarding recruitment  to the service and on which strong reliance was placed by learned senior counsel for the respondent-writ petitioner . Rules 7 deals with ‘Reservation of vacancies  for the  scheduled  casts  and  the  Scheduled tribes. Sub-rule  (1) thereof lays down that, reservation of vacancies of  the Scheduled  castes and the Scheduled tribes shall be in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by director recruitment  and or by promotion. Rule 8 deals with ‘Determination  of   vacancies’.  Sub-rule   (1)(a)  thereof provides that, ‘subject to the provisions of these rules the appointing authority  shall determine  as soon  as  possible after 1st  April every  year, the actual number of vacancies occurring  (sic)   as  on   1st  April  and  also  vacancies anticipated during  the financial  year’. Rule 11 deals with ‘Age’ of  recruitment   and eligibility  of a  candidate for direct recruitment  and lays  down that,  ‘a  candidate  for direct recruitment to the service must have attained the age of 21 years and must not have attained the age as prescribed in column  9 of the schedule as the case may be on the first day of  January next  following  the  last  date  fixed  for receipt of applications, provided (i)... ... ... ... (ii)... ... ...  ... (iii)...  ... ...   ... and (iv) in the case of persons serving  in connection with the affairs of the state in substantive  capacity, the  upper age  limit shall  be 40 years  for   direct  recruitment   to  posts  filled  in  by competitive examination  or in  the case  of posts filled in thought the  Commission by  interview. This relaxation shall not apply to urgent temporary appointment.      It is  the case of the writ petitioner that pursuant to

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the first advertisement dated 05th November 1993 Annexure P- 1  when  23  posts  of  Assistant  Directors  (Junior)  were advertised for  being filled  in, the  writ petitioner  as a departmental candidate  was within the upper age limit of 40 years for  direct recruitment  as per  Rule 11 (IV). But the difficulty  for  him  arose  in  the  light  of  the  second advertisement dated  08th January  1996 Annexure  P-4 as  by that date he had crossed the permissible upper age limit and that is  the reason why this litigation was triggered off by him by  insisting that the authorities must proceed with the recruitment pursuant  to the  first  advertisement  of  05th November 1993 only.      Rule 4  about composition  and strength  of service and providing for  various posts  in  the  cadre  has  a  direct reference to  column 2  of the schedule. When we turn to the Schedule annexed  to the  rules we  find at  serial no.4 the post  of   Assistant  Director   (Junior)/Secretary   Market Committee. This  was  the  original  serial  no.  4  in  the Schedule. At  serial no.3  in the said Schedule was the post of Assistant  Director (Senior) which was to be filled in by 100% promotion from the incumbents of the posts of Assistant Directors (Junior).  It is  this  Schedule  which  underwent amendment  by  the  amending  notifications  issued  by  the Governor of  Rajasthan under  the proviso  to Article 309 to the Constitution  of India.  The said notifications amending the statutory rules read as under :         "GOVERNMENT OF RAJASTHAN    DEPARTMENT OF PERSONNEL (A-Gr-II)      No.F.1 (2)DOP/A-II/83                Jaipur, Dated 19-4-95               NOTIFICATION      In exercise of the powers conferred      by the  proviso to  Article 309  of      the  Constitution   of  India,  the      Governor of  Rajasthan hereby makes      the  following   amendment  in  the      Rajasthan    State     Agricultural      Marketing  Service   Rules,   1986,      namely :-                AMENDMENT      In this  schedule appended  to  the      said rules :-      1.   The   existing      expression           "Assistant Director  (Senior)"           occurring in  Col.  4  against           the entry  at Sl.  No.2 and in           Col.2 against the entry at Sl.           No.3 shall  be substituted  by           the   expression    "Assistant           Director".      2.    The    existing    expression           "Assistant Director  (Junior)"           occurring in Col.4 against the           entry at Sl. No.3 and in col.2           against the  entry of Sl.No.4,           shall be  substituted  by  the           expression          "Marketing           Officer".                 *******      GOVERNMENT OF  RAJASTHAN DEPARTMENT      OF PERSONNEL (A-Gr.ll)      No.f.1(2) DOP/A-II/83                Jaipur dated 26-4-95               NOTIFICATION      In exercise of the powers conferred

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    by the  proviso to  Article 309  of      the  Constitution   of  India,  the      Governor of  Rajasthan hereby makes      the  following   amendment  in  the      Rajasthan    State     Agricultural      Marketing  Service   Rules,   1986,      namely :-                AMENDMENT      The  existing  entry  occurring  in      column NO.7,  against S.No.4 of the      Schedule  appended   to  the   said      Rules, shall  be substituted by the      following, namely :-                    7      "M.Sc.      (Agriculture)      with      specialisation    in    Agriculture      Economic/Agriculture Marketing of a      University established  by  low  in      India.                    OR      1.   At least  second class  degree           either in  Arts with Economics           or   in    Commerce   or    in           Agriculture of   a  University           established by law in India.      2.    Specialised    training    in           Agriculture Marketing  from  a           recognised institution."      A conjoint  reading of these two amending notifications with the  erstwhile Schedule  entries and Rule 4 of the Rule leaves no  room for doubt that after these amendments to the statutory  rules  erstwhile  posts  of  Assistant  Directors (Senior) as earlier found at serial no.3 ceased to exist and in their  place became  the  posts  of  Assistant  Directors simplicitor. The  said posts  after the  amendment had to be filled in  by 100%  promotion from  the  incumbents  holding newly created  posts of Marketing Officers which substituted the earlier  existing posts of Assistant Directors (Junior). So  far   as  the  erstwhile  posts  of  Assistant  Director (Junior)/Secretary Market  Committee were  concerned, serial no.4 dealing  with the  said  erstwhile  posts  underwent  a metamorphosis and  the said  posts got  substituted  by  the newly created  posts of  Marketing  Officers  who  could  be recruited now  by 50%  promotion and 50% direct recruitment. For 50%  direct recruitment  to the  newly created  posts of Marketing Officers, the eligibility qualifications were also changed and  while retaining  the earlier qualifications one additional qualification  was also  brought within the sweep of   the    Rules,   namely,    M.Sc.   (Agriculture)   with specialisation    in    Agriculture    Economics/Agriculture Marketing of  a University  established by  law in India. In the light of the aforesaid amendments to the Service. Rules, therefore, the following result ensued : 1.   After April  1995  the  erstwhile  posts  of  Assistant Directors (Junior)  ceased to  exist  and  a  new  cadre  of Marketing Officers came into existence. 2.   In directly recruiting incumbents for the newly created posts of  Marketing Officers  under the  Service  Rules  the educational qualification also underwent a sea-change and M. Sc. Agriculture with specialisation in Agriculture Economics became the  prime qualification  for being  eligible   to be considered for  the said  posts. Thus  under  the  erstwhile rules for  being considered  for direct  recruitment to  the posts  of   Assistant  Directors   (Junior)   second   class Bechelor’s Degree  was sufficient  for the  candidate. Now a

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Master’s  Degree   in  Agriculture  with  specialisation  in Agriculture Economics  was introduced as a prime educational qualification for  the concerned  candidate and  only second class  degree   at  Graduation  level  was  retained  as  an alternative eligibility  criterion. It  is true that the pay scales  remained  the  same.  But  the  erstwhile  posts  of Assistant Directors  (Junior) no  longer existed  under  the Rules after  April 1995  and the  said erstwhile  posts  got substituted by  creation of  new posts of Marketing Officers and these  newly created posts of Marketing Officers  became the source  and feeder  posts  for  cent  percent  promotion therefrom to the newly created posts of Assistant Directors. Thus the  erstwhile hierarchy  in the  cadres comprising  of Assistant Director  (Junior) and Assistant Director (Senior) were given a go-by and instead a new hierarchy in the cadres was constituted,  namely, Marketing  Officer  and  Assistant Director. In  other words  the posts  of Assistant  Director (Senior)  and   Assistant  Director  (Junior)  were  totally abolished.      Under these circumstances therefore, it is difficult to appreciate how  the Division  Bench of  the High Court could persuade itself  in agreeing  with  the  submission  of  the learned counsel  for  the  respondent-writ  petitioner  that despite  this   change  of  cadres  and  the  provision  for recruitment on  new posts  the  old  advertisement  of  05th November  1993   Annexure  P-1   seeking  to   consider  the candidature  of   applicants  for  erstwhile  23  advertised vacancies in the posts of Assistant Director (Junior) in the Agricultural Marketing  Service of  the State  of  Rajasthan would still  be pursued  further and  recruitment should  be effected for  these 23  erstwhile vacancies  as per  the old advertisement. It  is easy to visualise that even if such an earlier advertisement  of 05th  November 1993  was proceeded with further  it would have resulted into a stalemate and an exercise in  futility. No  appointment could have been given to  the  selected  candidates  to  the  posts  of  Assistant Directors (Junior)  after 1995  amendment of  rules as there were no  such posts  in  the  hierarchy  of  State  Service. Consequently  it  must  be  held  that  on  account  of  the amendments to  the Rajasthan  Agricultural Marketing Service Rules the earlier advertisement dated 05th November 1993 had become infructuous  and otios. Only on this short ground the writ petition  of the respondent-writ petitioner should have been dismissed  by confirming  the order of dismissal of the writ petition  earlier passed by the learned Single Judge. A conjoint reading of Rules 4, 6 and 17  to which we have made a reference  earlier leaves   no  room for doubt that direct recruitment  can  be  resorted  to  by  the  Public  Service Commission only  for existing  posts in  the Service and for which effective exercise of recruitment could be resorted to at a  given point  of time. It is true that when the earlier advertisement dated  05th November  1993  Annexure  P-1  was issued by  the  Public  Service  Commission  there  were  23 vacancies in  the cadre  of Assistant Directors (Junior) but by passage  of time  due to  the metamorphosis  in the  said cadre as   a  result of  amendments to  the relevant Service Rules, by  the time  fresh advertisement  was issued on 08th January 1996  there were  no posts  of  Assistant  Directors (Junior) in the hierarchy of posts in the cadres governed by the Rules and, therefore, the fresh advertisement dated 08th January 1996  as per Rule 17 had necessarily to refer to the process of  direct recruitment to the newly created posts of Marketing Officers and no fault could be found with the said fresh  advertisement.   This  aspect   of  the   matter  was highlighted by  the  Public  Service  Commission  itself  by

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filling counter  in  the  writ  petition  in  the  appellate proceedings before  the Division  Bench of the High Court. A copy of  his said  counter is  found at page 66 of the Paper Book in  appeal arising  out of  S.L.P(C) No  9698 of  1997, moved by the Rajasthan Public Service Commission, before us. Paragraphs 7  and 8  of the said counter require to be noted in this connection :      "7. That  in reply  to para no.7 of      the writ  petition, it is submitted      that  after   the   withdrawal   of      requisition,  the  cadre  structure      given in  the Rules was revised and      the  post   of  Assistant  Director      (Junior) was  redesignated and  the      post  of   Marketing  Officer   was      included in the cadre structure for      which   new   qualifications   were      prescribed .  After revision in the      cadre structure  and  amendment  in      the Rules,  a fresh requisition was      received by the Commission from the      State Government  , on the basis of      which, an  advertisement was issued      by the respondent Commission on 8th      January, 1996 and the last date for      submission of  the application form      in    response    to    the    said      advertisement was 7th March, 1996.      8. That  the averments made in para      8 of  the writ  petition are wholly      misconceived. The post of Marketing      Officer come  into existence  after      the   revision    in   the    cadre      structure.  No  post  of  Marketing      Officer  was  available  under  the      earlier unamended  rules. In  these      circumstances,  the  contention  of      the petitioner  that  the  post  of      Marketing Officer  was    available      from the year 1986-87 to 1992-93 is      wholly   Incorrect.   The   further      contention of  the petitioner  that      the  posts   are  governed  by  the      unamended  Rules   of   1986   and,      therefore, the State Government has      no power  to fill up the  vacancies      in terms  of the  amended Rules  is      wholly  untenable.   It   is   well      settled law that amended Rules have      to  be   taken  into  consideration      before   the    posts   have   been      advertised.  It   on  the  date  of      advertisement the  Rules have  been      amended, the posts are to be filled      up   according    to   the    Rules      prevailing   on    the   date    of      advertisement and  the same did not      to be  filled up  according to  the      unamended Rules."      Despite this  clear case  made  out  by  the  Rajasthan Public Service  Commission before  the Division Bench of the High Court  an despite  the fact  that  the  said  case  was clearly borne  out from  the statutory  rules as  amended in April 1995 the High Court in the impugned judgment has taken the view  that the  posts of  Assistant  Directors  (Junior)

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appear to   have  been re-designated  as Marketing  Officers meaning thereby there was only change of nomenclature. It is difficult to appreciate this line of reasoning. Not only the posts of  Assistant  Director  (Junior)  got  abolished  and substituted by   new  posts of  Marketing Officers but it is the new  post of  Marketing Officer  which became the feeder post for  100% promotion from the said newly created post to the Assistant  Director which  also was a newly created post in the  place of  the erstwhile  post of  Assistant Director (Senior). It  must, therefore,  be  held  that  the  earlier advertisement of  05th November  1993  Annexure  P-1  became infructuous and  could not be relied upon for sustaining any further  process   of  recruitment   pursuant  to  the  said infructuous advertisement  seeking  to  recruit  persons  to posts which  no longer  existed in Rajasthan State Marketing Service after  April 1995.  The first point, therefore, will have to  be answered  in the  affirmative in  favour of  the appellants and against the respondent-writ petitioner.      Point No. 2      Once  the   first  point   is  answered   against   the respondent-writ petitioner  nothing further would survive in his writ  petition. The  reason is obvious. The decisions of this Court  relied upon  by the  Division Bench  of the High Court in taking the view that old vacancies in the posts had to be  filled in pursuant to the old recruitment rules would become ex  facie inapplicable.  Once it is held that the old vacancies were  in posts which no longer existed after April 1995, there  remained no  occasion to consider whether these old vacancies  could be  filled in by applying earlier rules of recruitment  to the  very same posts. It is true that old vacancies were  carried forward  and got  merged along  with three more  vacancies and  became 26 vacancies for the newly created posts  of Marketing Officers, but that does not mean that still  the earlier 23 vacancies remained existing under the Rules  for  appointing  eligible  persons  to  the    23 erstwhile vacant  posts  of  Assistant  Directors  (Junior). There were  no such  posts  after  1995  in  the  cadres  of Rajasthan Agriculture  Marketing Service,  as seen  earlier. Those vacancies were carried forward and got merged with the further vacancies  in the  newly created  posts of Marketing Officer. But  all the  26 vacancies,  therefore, after April 1995 had  to be treated to be vacancies in the newly created posts of  Marketing Officers  and these  vacancies had to be filled in  necessarily as  per  Rule  17  by  issuing  fresh advertisement for filling up these newly created 26 posts of Marketing Officers  and that  is precisely  what was done by the Rajasthan  Public Service  Commission by  issuing  fresh advertisement dated 08th January 1996.      However as strong reliance was placed by the High Court on the  judgments of  the Court and which were again pressed in service  by learned  senior counsel  for respondent no.1- writ petitioner  we may briefly refer to these judgments. In the case  of Y.V.  Rangaiah and others etc. v. J .Sreenivasa Rao and  others [(1983  3 SCC  284] a  Bench of  two learned Judges of  this Court  had to  consider the  question  about applicability of  Rule 4  (a)(1)(i) of  the  Andhra  Pradesh Registration and  Subordinate Service  Rules which laid down the procedure  for appointment  by promotion to the posts in that service.  Considering the  said rules  it was  observed that when  the said  rules enjoined the appointing authority to prepare  panels for  selecting promotees  yearwise in old vacancies to  be filled  in by  promotion if panels were not prepared  at  appropriate  time  the  authorities  could  be directed to  prepare such  panels and  while preparing those panels for  the earlier  years the  then existing  statutory

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rules of  recruitment had  to be  applied. The said decision obviously cannot  apply on the facts of the present case for two reasons.  Firstly, this  is not  a case of promotion but direct recruitment  to the advertised posts and secondly the scheme of  the A.P.  Rules considered  by the  Court in that case cast a statutory duty and obligation on the part of the appointing  authority   to  prepare   panels   of   eligible candidates yearwise  in connection   with the vacancies then existing and  if they  had failed in that statutory duty and obligation they  could legitimately  be called upon to carry out that  obligation and  while doing  so for  preparing the panels  for  the  earlier  years  the  relevant  rules  then existing had  to be  kept in view. But even apart from these two distinguishing features one additional sallent aspect of the matter  is that  these panels  were to  be prepared  for filling up  vacancies by  promotion to  the  posts  of  Sub- Registrars Grade  II. The  said posts  continued to exist in the cadre and the only question was how the vacancies in the said existing  posts had  to be  filled in  by promotion  by preparing panels  for the  relevant years.  As we  have seen earlier in  the present  case the  old  posts  of  Assistant Directors (Junior)  had ceased  to exist.  Therefore,  there remained no occasion for proceeding with recruitment to such non-existing  posts   pursuant  to  the  earlier  state  and infructuous advertisement  of 05th November 1993 Annexure P- 1. In  the same  volume at page 33 is found another decision in the  case of  A.A. Calton  v. Director  of Education  and another [(1983)  3 SCC  33]. It  is true  that in  that case another Division  Bench of  this Court  consisting  of  E.S. Venkataramiah (as  he then  was) and A.N.Sen, JJ., held that the process  of selection  under Section  16-F of  the  U.P. Intermediate  Education   Act,  1921   by  way   of   direct recruitment  commenced   from  the   stage  of  calling  for applications for a post up to the date on which the Director became entitled to make a selection under the said provision and the  entire process  was an  integrated one. But even in that case  there was  no question  of the  said posts  to be filled in  by direct  recruitment ceasing to exist under the Act and  the Rules. Not only that there was an earlier order of the  High Court in the proceedings between the contesting parties  whereby   the  High   Court  had   remanded  direct recruitment  proceedings  for  being  re-considered  by  the Director and  in view  of the  said order  of the High Court which had  become final  between the parties it could not be said subsequently  that the  Director could no undertake the exercise of  appointment by way of direct recruitment as the Act had  got  amended  in  the  meantime.  In  the  case  of P.Ganeshwar Rao  and others  v. State  of Andhra Pradesh and others [1988  (Supp) SCC  740] another Division Bench of two learned  judges   of   this   Court   consisting   of   E.S. Venkataramiah and  N.D.  Ojha,  JJ.,  had  to  consider  the question whether  the process  of filling up of 51 vacancies which had been notified by the Public Service Commission for direct recruitment under the then existing recruitment rules which permitted clubbing of temporary vacancies also for the purpose  of  recruitment,  could  be  continued  further  if pending such  recruitment process  the rules  of recruitment got amended  and only 37-1/2% of substantive vacancies could be filled  up by direct recruitment. Answering this question Venkaratamiah, J,  (as he  then was)  speaking for the Court held that the amendment to the recruitment rules referred to future  vacancies   only  as   the  Explanation   which  was introduced by  way of  amendment to Special Rules 28th April 1980  contained  the  crucial  words  ‘37-1/2  per  cent  of substantive vacancies  arising in  the category of Assistant

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Engineers shall  be filled  by direct recruitment.....’. The words ‘vacancies arising in the category’ were emphasised to mean future  vacancies and  which could  not  cover  earlier erstwhile vacancies  and. therefore,  it was  held that  for filling up  the earlier  vacancies which had arisen prior to the amendment,  the old rules would apply. In paragraph 7 of the Report,  however, the  following pertinent  observations were also made :      "... ...  If the  above clause  had      read  ‘37   1/2  per  cent  of  the      substantive   vacancies    in   the      category  of   Assistant  Engineers      shall  be   filled  by  the  direct      recruitment’  perhaps  there  would      not  have   been  much   room   for      discussion. The  said  clause  then      would  have  applied  even  to  the      vacancies which had arisen prior to      the date of the amendment but which      had not  been filled up before that      date......"      It  is,  therefore,  obvious  that  this  Court  in  P. Ganeshwar’s case (supra) itself held that if the recruitment rules underwent  amendment prior to actual filling up of the advertised posts  the amended  rules would  apply and  it is only because  of the  word ‘arising’  as found  to have been employed  in   the  amended  provision  that  the  aforesaid decision was  rendered. But  even that  apart, this decision also referred  to existing  posts and had nothing to do with posts which  had got  abolished in  the meantime  as in  the present case.  We may  now refer  to  a  three  Judge  Bench decision of  this Court  in the  case of  P.  Mahendran  and others etc  v. State  of Karnataka  and others [(1990) 1 SCC 411]. In  that case  a Bench  of three learned Judge of this Court consisting  of E.S.  Venkataramiah. CJ, K.N. Singh and N.M Kasliwel JJ., speaking through Singh J., had to consider the question  whether the  Karnataka General  Service (Motor Vehicles Branch) (Recruitment) Rules, 1962 which had earlier prescribed a diploma in Automobile Engineering or Mechanical Engineering as  a minimum qualification for appointment of a Motor Vehicle  Inspector, once amended in 1987, could affect the earlier  process of selection undertaken in the light of prior  unamended  rules  by  the  Karnataka  Public  Service Commission  and   could  make   the  earlier  diploma-holder applicants ineligible  only because  after amendment  of the rules diploma-  holders could  not apply  for such posts. It was found  as a  matter of  fact that  the earlier selection process when  the unamended rules were holding the field had got  completed.   The  selected   candidates  were   already recommended for  appointment and  their  appointments  would have got  fructified but for the fact that the High Court of Karnataka in  the writ  petition intervened  and issued stay orders against  such appointments.  The question was whether after vacating  such stay  by the  High Court  when the writ petition was  disposed of  the selected  candidates could be given appointments  pursuant to  the earlier  rules or  they could be  told off  the gates  only because  as per  the new amended rules  they being  the diploma-holders  could not be held eligible to be appointed to such posts. In the light of these peculiar  facts of  this case  it was observed by this Court that  the amended  rules did not contain any provision enforcing the  amended rules  with retrospective  effect and that the  appointments which  would have been made available to the  selected  candidates  but  for  the  interim  relief granted by  the High  Court of Karnataka could not be denied

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to them.  We fail  to appreciate  how the  said decision can advance the  case of  the respondent-writ petitioner when no such occasion  arose  in  the  history  of  this  litigation wherein the  respondent -writ  petitioner never got selected for  the  said  post  under  the  old  rules,  nor  was  his appointment intercepted by any stay order of the Court. Save and  except   inviting  applications   as  per  the  earlier advertisement  no   further  stop  in  connection  with  his recruitment  was  ever  undertaken  by  the  Public  Service Commission. Hence, no right accrued to him, save and except, for  being   considered  for   such  selection   if  earlier advertisement had  survived .  In fact Shri Ganpule, learned senior counsel  for the  respondent-writ  petitioner  fairly stated that  it is not his case that the respondent  had any right to   be appointed to the said post. His claim was only to be considered for being selected for the said post. As we have seen earlier, once the earlier, advertised posts ceased to exist  under the Service Rules there remained no occasion for considering writ petitioner’s claim for being considered for appointment  to such  a non-existing post. Our attention was also  invited to a decision of this Court in the case of B.L. Gupta  and Anr  V. M.C.D [Civil Appeal NO. 6114 of 1997 etc.] decided  on 5th  September 1997.  In the said decision the  question   of  promotion   to  the  post  of  Assistant Accountant from  the  feeder post of Senior Clerk with three years’ experience  and the other feeder post of Junior Clerk with eight  years’ experience  was on the anvil of scrutiny. For the  earlier vacancies  of the Assistant Accountants the earlier rules  of recruitment  were held  applicable and for new vacancies  the amended  rules of 1995 had to be applied. For coming  to the  said conclusion  this Court  relied upon some of  the earlier decision of this Court to which we have made a  reference earlier.  We fail  to appreciate  how this decision also  can advance  the case of the respondent -writ petitioner.  The   post  of   Assistant  Accountant   was  a promotional post  which  did  not  cease  to  exist  in  the hierarchy of  the service  echelon with the which this Court was concerned.  Hence the  ratio for  the decision  of  this Court in Civil Appeal No. 6114 of 1997 also cannot be of any assistance to respondent -writ petitioner. On the contrary a three- Judge Bench judgment of this Court in the case of Jai Singh Dalal  and others  v. State  of  Haryana  and  another [1993 Supp  (2) SCC  600 would squarely get attracted on the facts of the present case. A.M. Ahmadi, J., speaking for the three-judge Bench in paragraph 7 of the Report relying on an earlier judgment  of this  Court in case of State of Haryana v.  Subash Chander Marwaha [(1974)  3 SCC 20] laid down that when  the  special  process  of  recruitment  had  not  been finalised and  culminated into select list the candidate did not have any right to appointment. In this connection it was observed that  the recruitment  process could  be stopped by the Government  at any  time before  a  candidate  has  been appointed. A  candidate has  no  vested  right  to  get  the process completed  and at  the most  the Government could be required to  justify its action on the touchstone of Article 14 of the Constitution.      In the  facts of  the present  case it  cannot even  be suggested that  the action of the  State of Rajasthan was in any way  arbitrary in  intercepting the  earlier recruitment process pursuant  to  the  first  advertisement  dated  05th November 1993  Annexure P-1  as the Rules themselves had got amended and  the posts the earlier advertised  had ceased to exist.      In the  case of  State of  M.P. and others v. Raghuveer Singh Yadav  and others  [(1994) 6  SCC 151]  a Bench of two

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learned  Judges of this Court consisting of K. Ramaswamy and N. Venkatachala,  JJ., had  to consider the question whether the State  could change  a qualification for the recruitment during the  process of  recruitment which  had not  resulted into any  final decision  in favour  of  any  candidate.  In paragraph 5 of the Report in this connection it was observed that it  is settled  law that  the State  had got  power  to prescribe qualification  for recruitment. In the case before the Court  pursuant to the amended Rules, the Government had withdrawn the  earlier notification  and wanted  to  proceed with the  recruitment afresh.  It was held that this was not the case  of any  accrued  right.  The  candidates  who  had appeared  for   the  examination   and  passed  the  written examination had only legitimate expectation to be considered according to  the rules then in vogue. The amended rules had only prospective  operation. The  Government was entitled to conduct selection  in accordance  with the changed rules and make final  recruitment. Obviously  no candidate acquire any vested right  against the  State. Therefore,  the State  was entitled to  with drew  the notification  by  which  it  had previously  notified   recruitment  and   to  issued   fresh notification in  that regard  on the  basis of  the  amended Rules. In  the case  for J & K Public Service Commission and others v.  Dr. Narinder  Mohan and others [(1994) 2 SCC 630] another Division  Bench of  two learned Judges of this Court consisting of  K. Ramaswamy  and N.P. Singh, JJ., considered the question  of interception of recruitment process earlier undertaken by  the recruiting  agency. In this connection it was observed  that the process of selection against existing and anticipated  vacancies does  not create  any right to be appointed to  the post  which can be enforced by a mandamus. It has  to be  recalled  that  in  fairness  learned  senior counsel Shri  Ganpule  for  the  respondent-writ  petitioner stated that  it is  not his  case that  the writ  petitioner should be  appointed to  the advertised  post. All  that  he claimed was  his right  to be  considered for recruitment to the advertised  post as  per the  earlier advertisement date 05th November  1993 Annexure  P-1 and  nothing more.  In our view, the aforesaid limited contention also, on the facts of the present  case, cannot  be of  any assistance to the writ petitioner as  the  earlier  selection  process  itself  had become  infructuous  and  otios  on  the  abolition  of  the advertised posts, as we have seen earlier. The second point, therefore, will  have to  be answered  in  the  negative  in favour of  the appellants  and against  the  respondent-writ petitioner.      Point No. 3      As a  result of our finding on Point No. 2 as a logical corollary and  also in  the light of our discussion on Point No. 1  it has  to be  held that no fault could be found with the Rajasthan  Public Service  Commission in  issuing  fresh advertisement  dated   08th  January   1996  for  recruiting eligible candidates from open market for filling up 26 posts in the  newly created  cadre of Marketing Officers under the Rules as  amended  in  1995.  Point  No.  3  is,  therefore, answered  in   the  negative   against  the  respondent-writ petitioner and in favour of the appellants.      Point No. 4      As a  result of  our aforesaid  findings on  the  first three points it must be held that the writ petition filed by the respondent-writ  petitioner was  rightly rejected by the learned Single  Judge and  was erroneously  allowed  by  the Division Bench of the High Court by the impugned judgment.      In the  result these  appeals are allowed. The judgment and order  of the  Division Bench  are set aside and instead

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the decision rendered by the learned Single Judge dismissing the  writ   petition  of   respondent-writ   petitioner   is confirmed. In  the facts and circumstances of the case there will be no order as to costs.