JUDGMENT Aloke Chakrabarti, J.
1. The petitioners, who were registered in the respective employment exchanges, were sponsored for being considered for the post of Assistant Grade-Ill under the respondent. The petitioners appeared in the written examination and having qualified, were called for interview. After participation in the interview the petitioners came to know that all Shed Tallymen, who were taken over from the Food Department, had been prompted to the Assistant Grade although they did not appear either in the written tes tor in the interview. When the result of the petitioners 'interview was not being announced, they moved representation on 19-2-1987 followed by a second representation on 6-3-1987 for declaration of result. As no redress was made available to the petitioners they moved the present writ petition for commanding the respondents to declare the result of the examination held for the selection of the candidates for the posts of Assistant Grade-Ill and for a direction to fill up 90 per cent of the vacancies by way of direct recruitment. The relevant procedures as contained in Regulation 9 and 10 of the Regulations framed for appointment to category-III pests under the respondents have been annexed as annexure no. 1 to the writ petition.
2. The respondents filed counter affidavit wherein it has been stated that the Regulations as annexed at annexure no. 1 to the writ petition did not give the correct picture, and a copy of the relevant extract is annexed at annexure C.A I for the purpose of showing that the quota for direct recruitment was 70% and not 90% as contended by the petitioners. It has also been stated that the Headquarter sent a letter dated 18-8-1986 requiring that the direct recruitment quota would be filled up by recruitment as a special case from the existing strength of qualified category-ill and IV employees subject to the condition specified therein and a copy of the said letter was annexed as annexure No. C. A II It is further contended that as results were net declared, the petitioners did not acquire any right in course of participation in the selection process and as such is not entitled to any relief.
3. Respondent filed a supplementary counter affidavit wherein holding of oral interview was admitted but it was contended that by letter dated 18-8-1986 the Head Quarter directed that the vacancies in the post of Assistant Grade III would be filled up only from the departmental applicants and not from the outsiders and as the Central Government finances the Food Corporation of India and gives its directive from time to time, the petitioners could not be selected in violation of the said directives and, therefore, there is no question of declaring result any further.
4. The petitioners filed rejoinder affidavit contending that such decision of the Head Quarter can not over-ride the Regulation framed by the Board and in any event such direction could not be applicable in those cases where the requisition had already been made and names had been called for from the employment exchanges followed by written examination and interview. A copy of the notification dated 21-7-1985 in respect of the vacancy for the posts of Assistant Grade Ml to the concerned employment exchange authorities for sponsoring the appropriate candidates, has been annexed to the rejoinder affidavit.
5. A supplementary rejoinder affidavit was filed by the petitioners enclosing a chart as regards vacancy position in the employment of the respondents. A further supplementary rejoinder affidavit was filed by the petitioner deying the contention of the respondents and disclosing that the appointments were going on against various vacancies of the respondents for the purpose of showing that the contention of the respondents that there were no vacancy, was incorrect.
6. One Ram Narain filed an application for impleadment as petitioner, contending that his case is identical to the case of other petitioners.
7. Heard Mr. Yatindra Singh the learned counsel for the petitioners as also Mr. R.K.S. Chauhan the learned counsel for the respondents.
8. Relying on various materials on record the only contention made by the petitioner is that the selection process has been prescribed by the statutory Regulation and in pursuance thereof the employment exchanges were asked to sponsor candidates for filling-up the vacancies and the petitioners having been sponsored in terms thereof and after participating in the written test and interview could not be refused appointment on the ground that some letter was written by the Head quarter providing for filling up the vacancy by recruitment as a special case from the existing strength of qualified category-III and IV employees. Learned counsel for the petitioners argued that the law does not permit such change of procedure by some letter with a change of policy in contravention to Regulation framed under the statutory provisions when the selection process already started and the candidates have been interviewed.
9. In support of such contention learned counsel for the petitioners relied on the law settled in the case of Sukhdeo Singh v. Bhagat Ram reported in AIR 1975 SC 1331 wherein binding nature of Rules and Regulations had been upheld. Reference was also made to the case of State of Maharashtra v. Jagannath reported in AIR 1980 SC 1133 wherein it has been held that a circular being an executive instruction can not restrict operation of statutory Rules framed under Article 309 of the Constitution of India and that executive instruction may supplement but not supplant statutory Rules. Law has also been shown as decided in the case of C.L. Verma v. State of M.P. reported in AIR 1990 SC 463 holding that an administrative instruction can not compete with a statutory Rule and if there be contrary provision in the Rule, the administrative Instruction must give way and the Rule shall prevail.
10. The law has been shown as decided in the case of N.T. Bevin Katti v. Karnataka Public Service Commission reported in AIR 1990 SC 1233 in support of the contention that where advertisement issued inviting applications for direct recruitment to a category of posts and the advertisement states that the selection shall be made in accordance with the existing Rule or Government Orders and also to the extent of reservation existing, selection must be made in accordance with the than existing rules and the Government Orders and vested rights of the candidates are to be considered. Even in case of amendment of the Rules the same can be applicable only if it was made retrospective.
11. Following the aforesaid legal proposition, as decided in the case of N.T. Bevin Katti (supra) the learned counsel for the respondents contended that the alteration of Rules has not been discarded by law and in the present case by letter dated 18-8-1986 (Annexure No. C. A. II) such alteration was made in the policy itself and as such the petitioners can not get any relief. Moreover, the learned counsel for the respondents relied on the judgment in the case of Sankarsen Das v. Union of India and Ors. reported in AIR 1991 SC 1612 and the relevant portion of the said judgment relied on is as follows :
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an infeasible right to be appointed which can not be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill-up all or any of the vacancies. However, it does mean that the State has the licence of acting in an arbitrary manner. The decision not to fill-up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwana, (1974) 1 SCR 165 ; (AIR 1973 SC 2216), Miss Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 : (AIR 1987 SC 169), or Jitendra Kumar v. State of Punjab, (1985) 1 SCR 899 : (AIR 1984 SC 1950)".
12. After considering the aforesaid contentions the parties as also the law relied upon, I find that in the present case admittedly the selection process was started by asking the employment exchanges authorities to sponsor the candidates for the purpose of filling-up certain vacancies and in pursuance thereof the candidates having been sponsored by the employment exchanges the petitioner participated in written test and on successful completion also in the interview. The result has net been declared on the ground that the policy had been changed by letter dated 18-8-1986. The said letter at annexure No. II to the counter affidavit only speeks of a decision by the competent authority. Nothing has been disclosed to show that such a decision was taken by which authority and in what manner. In the aforesaid circumstances, on the existing materials, I do not find that the said change of policy was in modification of the Regulation already in force. At best, the same is an administrative instruction. In such circumstances, the law relied on by the learned counsel for the petitioner will fully apply in the present case and I hold that in such circumstances, such administrative instructions could net prevail over the Regulation already in existence, moreover, after the selection process started and written test and interview took place, the change of a policy in the aforesaid manner cannot be held permissible.
13. The contention of the learned counsel for the respondents that no right accrued to the petitioners by mere participation to the selection process, does not help the respondents' in any manner as admittedly the respondents have refused consideration of the case of the petitioners by reason of alleged change of policy without even admending the Rules. Such action of the respondents cannot be permissible under any circumstance. The selection already proceeded to substantial extent could not actually cancelled by some administrative instructions purporting to over-ride the statutory Regulations and that too at a late stage.
14. The other contention of the respondents, as stated in the counter affidavit that the penal has expired its life, is also not acceptable as the result having not been declared, the penal was not even prepared and as such these was no question of expiry of its life.
15. In the aforesaid circumstances, the writ petition is allowed. The respondents are directed to complete the selection process and to pass appropriate order in respect of appointment of the petitioners and as the petitioners approached the court without any delay, the respondents will not consider age bar, if any in respect of the present petitioners in the matter of such appointment provided the petitioners have been selected in the said selection process and were duly qualified at the time of participation in selection process.