http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: R. DAYAL & ORS.

DATE OF JUDGMENT:       17/02/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      This appeal  by special leave arises from the judgement of the  Division 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   anticipated  as   on  April   1,  1995,  the Departmental Promotion  Committee (for short, the "DPC") was convened 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  of  Engineers  (Building  and  the  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. Meena, is made in accordance with the Rules.      Shri Aruneshwar  Gupta, learned  counsel appearing  for the State, contends that under Rules 9 of the Rules, subject to the  provision 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 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 anticipated vacancies,  the DPC considered the claims of all the eligible  candidates, as per the Rules then existing and selected them. A list of 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 selected on merit. As a consequence, they were  appointed by  promotion in  accordance  with  the Rules, though  Rule 23-A and Rule 24-A came to be introduced by statutory  amendment w.e.f.  July 24,  1995. Shri  Jayant Das, learned  senior counsel appearing for respondent No.13, promotee-respondent, contends  that under  Rule  23  of  the Rules, the  criteria  prescribed  as  on  the  date  of  the selection by  the DPC  is required  to be applied. Since the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

existing criteria  had been  applied,  their  selection  was correct in  law. Consequently,  the  vacancies  which  arise during that  financial year  were required  to be  filled up from amongst the 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  1 (ii)  with  immediate effect, the  amended Rules  having come into force from July 24, 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      "Addl.Chief      Engineer"      and      "Superintending   Engineers"    the      expression "(Civil)" shall be added      an 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   quivalent      thereto by  Government with 5 years      service as Suyperintending Engineer      (Civil)"      (iv) After  serial  number  2,  the      following  new  serial  number  and      entries thereto  shall be inserted,      namely :- ------------------------------------------------------------ 1     2.       3.           4.         5       6          7. ------------------------------------------------------------ "2-A  Addl.   100% by    Superintending     Must hold a       Chief   promotion  Engineer           degree in       (Mechanical)       (Mechanical)       Engineering                                             (Mechanical) of                                             a University                                             established by                                             law in India or                                             qualification                                             declared                                             equivalent                                             thereto by                                             Government with                                             5 years service                                             as                                             Superintending                                             Engineer                                             (Mechanical"."      As a  consequence, any  appointment  made  as  on  that should  be  consistent  with  the  above  Rule.  In  support thereof, he placed reliance on the decision of this Court in V.V. Rangaiah vs. J. Sreenivasa Rao [(1983) 3 SCC 284].      The question,  therefore, is: whether the view taken by the High  Court in  the impugned judgment is correct in law? It is  true, as 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 thereunder was also followed. The revised criteria  of eligibility and procedure for promotion of the  officers has  been prescribed under Rule 24-A of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

Rules. Sub-rule (2) of Rules 12 envisages as under:      "The persons enumerated in Column 5      or the  relevant  Column  regarding      ‘posts from  which promotion  is to      be made.’  as the  case 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 experince  on the  first day of      the month  of April  of the year of      selection as  specified in Column 6      or in the relevant 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 consideration against vacancies existing as on 1st April of the year of selection. But since  the Rules  cane to be amended and the amendedment 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 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 appointment  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 admittedly arose after the amendment of the Rules came into force,  according 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. 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  the Rules in accordance with law then existing since the  anticipated vacancies  also must  have been taken into consideration in the light of Rules 9 of the Rules. But after the  amended Rules  came into  force, necessarily  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 courses  are open  to he  Government  or  the appointing  authority,   viz.,  either   to  make  temporary promotions for  the ensuing  financial year  until  the  DPC meets or  in exercise  of the  power under Rule 24-A (11-B), they can  revise the  panel already  prepared in  accordance with the Rule and make appointments in accordance therewith.      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

appointment cannot  be challenged.  We find  it difficult to give acceptance  to the  contention. Even  a carried forward vacancy is  required to be considered in accordance with the law existing  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 Bhatnagar  and  H.L.  Meena  must  be  treated  to  be  only temporary appointments  pending consideration  of the claims of  all  the  eligible  persons  belonging  to  General  and Reserved quota separately as per Rules.      Equally,  one   B.L.  Kankas   (Scheduled  Tribe)   was appointed by  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 appointment has not been challenged, though direction to the contra 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 make fresh selection  and appointments  in accordance  with  law. Whatever benefits  have been  given under the impugned order cannot be  taken away  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 receipts of the order and take speedy action accordingly.      The appeal is accordingly disposed of. No costs.