Court No. - 34
Case :- WRIT - A No. - 8757 of 2021 Petitioner :- Ashok Kumar Prajapati Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kamal Singh Counsel for Respondent :- C.S.C.,Siddharth Singhal
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner, Sri S.K. Mishra learned Standing Counsel and Sri Siddharth Singhal who appears for the respondent- Commission.
This petition has been preferred seeking the following reliefs:-
"Issue a writ, order or direction in the nature of certiorari quash the impugned advertisement No. 02/Examination/2019 dated 25.02.2019 contained as Annexure No. 1 to this writ petition.
Issue a writ, order or direction in the nature of mandamus commanding the respondents to re-advertise the posts are in question and adopt the criteria for selection and appointment on the posts of Pharmacist (Homoeopathy) yearwise-batchwise merit within stipulated period fixed by this Hon'ble Court.
Issue such other appropriate writ direction or order which this Hon'ble Court may deem fit and proper in the circumstances of the case."
The essential challenge to the recruitment process initiated by the respondents for appointment as Pharmacist (Homoeopathy) is in the following terms. According to the petitioner prior to 2017, appointments to the aforesaid post were made on the basis of an interview. Subsequently the recruitment rules came to be amended in 2017 and selection under those amended rules is contemplated to be made by way of a written examination. The submission of learned counsel was that all those vacancies which came into existence prior to 2017 would be governed by the unamended rules and that consequently the procedure as adopted by the Commission would not sustain. The submission essentially proceeds on the basis of the decision of the Supreme Court rendered in Y.V. Rangaiah And Ors. v. J. Sreenivasa Rao And Ors. [ AIR 1983 SC 852].
However, it becomes pertinent to note that the petitioner does not claim or assert that a vested right stood created in his favour prior to 2017 so as to claim that the post should be filled in accordance with the Rules prevalent then. It is also not his case that the statutory rules that prevailed mandated the respondents to undertake an exercise of recruitment annually and having failed to do so would lend credence to the submission as addressed.
This Court had an occasion to deal with the question of the extent to which and the situations where the principles laid down in Rangaiah would apply in Pradeep and others Vs. State of U.P. [2019 SCC OnLine ALL 4008]. After noticing the body of precedent that had evolved on the issue and the ratio decidendi of Rangaiah the Court held:-
24. The ratio of these decisions, therefore, cannot be read as laying down a proposition of general application irrespective it being found that the rules were not intended to be retroactive in operation and existing rights being affected and impacted adversely in the facts of the case. In the considered view of this Court on a correct appreciation of Calton, Devin Katti and Santosh Kumar Singh it is when the afore noted twin aspects exist that the principles enunciated therein would apply. It would therefore have to necessarily be found that not only were the amendments not intended to be retrospective but that certain rights which came into existence and inhered in candidates are impacted.
25. In the present set of writ petitions while it is nobody's case that the amendments are retrospective, the crucial questions to be posited are these:—
(a) firstly, whether rights came to be created in favour of the petitioners by the time the amendments were introduced and
(b) secondly, whether the statutory changes have in any manner impeded or impaired those rights.
26. The answer to both the questions posed, in the considered view of this Court, must be in the negative and against the petitioners for the following reasons.
27. As noted in the introductory part of this decision, the only two steps undertaken in respect of the recruitment process in question was the invitation of application forms and deposit of fee. The petitioners here had not been subjected to either a written examination or a Physical Efficiency Test. The respondents are not stated to have evaluated the marks obtained by candidates in the Xth and XIIth standard examinations or published any tentative merit list. While the process of recruitment stood thus, amendments were introduced in the applicable statutory rules replacing the system of evaluation of inter se merit on the basis of marks obtained in the High School and Intermediate examination with a competitive written examination. None of the petitioners were subjected to any preliminary testing nor were their respective merits evaluated. The respondents did not formulate any recommendations nor did they draw up any merit list. Viewed in that light, the Court finds itself unable to discern or recognise the creation of any right or semblance thereof in favour of the petitioners when the selection process stood stalled and stagnated at the nascent and preliminary stage of mere receipt of applications and deposit of fee.
28. On an overall conspectus of the above, this Court is of the firm view that no rights stood created in favour of the petitioner which could be recognised as having been impacted by the impugned notifications.
31. Sri. Singh then feebly raised the issue of the vacancies which formed the subject matter of the original advertisements having come into existence prior to the introduction of the statutory amendments and therefore being liable to be filled in accordance with those which prevailed at the time of their creation.
33. This submission, as admitted by Sri. Singh, was addressed in light of the decision of the Supreme Court in Y.V. Rangaiah v. J. Sreenivasa Rao 9. At the outset it must be noted that Rangaiah was a decision rendered in the context of promotion and not recruitment per se. There the Supreme Court had laid down the principle that a promotional vacancy is liable to be filled in accordance with the rules prevailing on the date when it came into existence. Significantly the decision in Rangaiah has been explained in a subsequent decision of the Supreme Court in Deepak Agarwal v. State of U.P. 10 In Deepak Agarwal the Supreme Court noted that the rule which fell for consideration in Rangaiah mandated a promotional exercise being undertaken annually. It was accordingly held that the principle enunciated in that decision of the rules prevailing on the date of occurrence of vacancies applying to the selection must necessarily be appreciated in that context. In essence it was held that the above noted principle cannot be recognised as being one of universal application and must be understood and appreciated in the backdrop of the relevant statutory rules and whether they envisaged the filling of vacancies periodically. It was consequently held that only where there is a failure to conduct a selection process periodically in accordance with a statutory obligation placed in that respect could it be held that the rules prevailing on the date of occurrence of vacancies would apply.
34. The Court lastly notices a recent judgment rendered by two learned Judges of the Supreme Court in State of Tripura v. Nikhil Ranjan Chakraborty 11, which was rendered in the context of promotion and would have an important bearing on the submission which is addressed. In this decision the Supreme Court was faced with the argument that vacancies which had come into existence prior to the amendment of the governing statutory rules would have to be filled in accordance with the rules as prevailing on the date of their creation and not those which existed at the time when the process was initiated. Noticing the decision rendered by the Supreme Court in Deepak Agarwal it was held as follows:
"8. In Deepak Agarwal v. State of U.P., [(2011) 6 SCC 725 : (2011) 2 SCC (L&S) 175] the appellants were Technical Officers who along with Assistant Excise Commissioners were eligible to be considered for promotion to the post of Deputy Excise Commissioner. Two days before the DPC was scheduled to meet to consider the cases of all eligible officers for promotion, the concerned Rules were amended and Technical Officers stood excluded as the feeder post for the next promotional post of Deputy Excise Commissioner. The challenge to such exclusion having been negated Deepak Agarwal v. State of U.P. [2002 SCC OnLine All 1279 : 2002 All LJ 1701] by the High Court the matter reached this Court and the relevant paragraphs of the decision were:
"2. The old vacancies have to be filled under the old rules is the mantra sought to be invoked by the appellants in support of their claim that the vacancies arising prior to 17-5-1999, ought to be filled under the 1983 Rules as they existed prior to the amendment dated 17-5-1999. The claim is based on the principle enunciated by this Court in Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284:1983 SCC (L&S) 382.
23. Could the right of the appellants, to be considered under the unamended 1983 Rules be taken away? The promotions to the 12 vacancies have been made on 26-5- 1999 under the amended Rules. The High Court rejected Deepak Agarwal v. State of U.P. [2002 SCC OnLine All 1279: 2002 All LJ 1701] the submissions of the appellants that the controversy herein is squarely covered by the judgment of this Court in Y.V. Rangaiah, (1983) 3 SCC 284:1983 SCC (L&S) 382. The High Court has relied on the judgment of this Court in K. Ramulu v. Dr. S. Suryaprakash Rao, (1997) 3 SCC 59:1997 SCC (L&S) 625.
24. We are of the considered opinion that the judgment in Y.V. Rangaiah case, (1983) 3 SCC 284:1983 SCC (L&S) 382 would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the Rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amended Rules would be governed by the old Rules and not the amended Rules.
25. In the present case, there is no statutory duty cast upon the respondents to either prepare a yearwise panel of the eligible candidates or of the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable Rules. The requirement to identify the vacancies in a year or to take a decision as to how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to the candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhavan that the vacancies, which had arisen before 17-5-1999 had to be filled under the unamended Rules.
26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates unless, of course, the applicable rule, as in Y.V. Rangaiah case lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment."
9. The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, "rules in force on the date" the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in the case of Deepak Agarwal, in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24.11.2011."
35. In view of the exposition of the law in Deepak Agarwal as well as the Sate of Tripura noticed above, the last submission advanced by Sri. Singh must also and is rejected.
36. …… The petitioners, undisputedly are also not rendered ineligible under the amended rules. There has ben no deprivation of their rights. The mere fact that they would now be subjected to a written examination along with others does not result in the violation of a legal right. The decisions in Calton, Devin Katti as well as of the Full Bench in Santhosh Kumar Singh do not lay down a general or absolute proposition as was sought to be canvassed at the behest of the petitioners. For the principles enunciated therein to apply it would be incumbent upon the candidate to establish that a vested right which came to be created in his favour is adversely impacted or that the amended statutory regimen renders him ineligible to participate in the selection process. As has been held earlier, no vested rights came to be created in favour of the petitioners. The impugned action has not resulted in the destruction of any rights."
Following the principles laid down in the aforesaid decision, the Court finds no merit in the writ petition which shall stand dismissed.
Order Date :- 30.7.2021 faraz (Yashwant Varma, J.)