High Court
Case Details
WP(C) 6239/2011 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R(CAV) By way of this application under article 226 of the Constitution of India, the two petitioners seek a direction to the respondents to consider t heir appointment in the post of Enrolled Follower (Sweeper), now upgraded as Con stable (Sweeper), in the Border Security Force (BSF) pursuant to the recruitment proceeding held w.e.f. 11-09-2008 on the basis of the advertisement dated 07-07 -2008. 2.
Legal Reasoning
Facts of the case may be briefly noted. 3. sses (OBC) and are matriculates. The two petitioners belong to the category of Other Backward Cla 4. Respondents published an advertisement dated 07-07-2008 in the E mployment News in its issue of 2-8 August, 2008 inviting applications from eligi ble male candidates for the post of Enrolled Follower in various trades for the States of Assam, Meghalaya, Arunachal Pradesh, Nagaland and subjects of Nepal an d Bhutan. It was stated that for the candidates of Assam, Arunachal Pradesh and subjects of Nepal and Bhutan, the recruitment rally would be held on 11-09-2008 at BSF camp, Patgaon, Guwahati. The qualification prescribed was Class-VIII pass . As per the said advertisement, the total number of vacancies for the State of Assam was 66 (sixty six), which included 11(eleven) posts of Sweeper. 5. Pursuant to the said advertisement, the petitioners applied for the post of Enrolled Follower (Sweeper) and appeared in the recruitment rally on 11-09-2008. They successfully qualified in the relevant test and their names fi gured in the merit list dated 30-09-2008 prepared by the Recruitment Board, whic h was approved by the Inspector General, Frontier Head Quarters, Shillong on 05- 10-2008. In the meanwhile, the 6th Central Pay Commission report was publ 6. ished, which, amongst others, recommended upgradation of the post of Enrolled Fo llower to Constable with consequential enhancement of the prescribed qualificati on from Class-VIII pass to matriculation with experience. As the appointments were not forthcoming despite their selection 7. , petitioners approached the BSF authority at Shillong. They were informed vide letter dated 13-08-2009 that the matter was taken up with the Ministry of Home A ffairs (MHA), Government of India but clarification was awaited. By a subseq uent communication dated 23-12-2009, the petitioners were informed that as per clarification received from MHA, the recruitment qualification for Enrolled Fol lower (now Constable) would not be lower than matriculation/certificate from Ind ustrial Training Institute (ITI) i.e., the lowest qualification prescribed by th e 6th Central Pay Commission for entry into Government service. It was further i nformed that new Recruitment Rules would be finalized as per recommendation of t he Pay Commission and those candidates who fulfill the requisite qualification / criteria as per new Recruitment Rules would be called for re-medical examinatio n and that the candidates would have to appear in all tests as per the new Recru itment Rules before fresh Board. 8. Respondents published a fresh advertisement on 28-07-2010 inviti ng applications amongst others for 65 (sixty five) posts of Constable (Tradesmen ), which included the posts against which petitioners had participated in the ea rlier round of recruitment process. 9. By order dated 06-09-2010 issued from the office of the Inspector Genera l, the Recruitment Board proceedings drawn against advertisement dated 07-07-200 8 were cancelled as none of the candidates were found eligible as per revised Re cruitment Rules of 2010.
Decision
10. Petitioners and two others filed W.P.(C) No.5820/2010 before this Court against the aforesaid decision of the authority. This Court by the final order d ated 10-03-2011 disposed of the said writ petition with the direction to the Dir ector General, BSF to deal with the matter appropriately and then to pass a spea king order, if necessary, in consultation with the MHA, Government of India. Thi s Court observed that the selection process pursuant to the advertisement dated 07-07-2008 was conducted on the basis of the old Recruitment Rules. The selectio n was cancelled on the ground of coming into force of the new Recruitment Rules w.e.f. 14-08-2010 by which time, the earlier selection process was over with the drawal of the merit list. This Court further held that the amendment to the Rec ruitment Rules was not with retrospective effect. While directing the Director G eneral as indicated above, this Court observed that the fact that the earlier re cruitment rally was conducted in respect of the existing vacancies applying the earlier Recruitment Rules and, therefore, the new Recruitment Rules cannot be ap plied against those posts, would require the serious attention of the BSF Headqu arters. 11. Following the order of this Court, the office of Director Genera l, BSF passed order dated 31-10-2011 holding that since as per the draft revised Recruitment Rules, none of the candidates were found eligible for the post of C onstable (Trademen) as they did not fulfill the prescribed eligibility criteria i.e. matriculation with two years work experience in respective trade or matricu lation with one year certificate course from ITI/Vocational Institute with atlea st one year experience in the trade or matriculation with two years diploma from ITI in the trade or similar trade, therefore, the said Recruitment Board procee dings were cancelled on 23-08-2010. 12. Aggrieved, the petitioners have preferred the present writ petit ion challenging the legality and validity of the aforesaid order dated 31-10-201 1 and for other connected reliefs as already indicated in the initial part of th is judgment. 13. Petitioners contention is that order dated 31-10-2011 is not in tune with the letter and spirit of the order of this Court dated 10-03-2011. Pet itioners are matriculates. Therefore, they have the qualifications even as per t he new Recruitment Rules. In so far experience is concerned, petitioners were no t asked to furnish trade experience certificates, which experience petitioners h ave. Therefore, question of non-production of such certificates did not arise. P etitioners assert that they have the requisite experience. In any case, the impu gned decision is contrary to the law laid down by the Hon’ble Supreme Court inas much as selection process initiated and completed on the basis of un-amended Rec ruitment Rules cannot be setaside on the basis of subsequent amendment in the Re cruitment Rules which did not have retrospective effect. 14. The respondents have filed a common counter affidavit. The stand taken is that the petitioners were recommended for the post of Sweeper by the R ecruitment Board. The Board’s proceedings and the consolidated merit list, after approval of Inspector General, BSF, Shillong were sent to FHQ for final approva l. At the time of granting final approval, the 6th Central Pay Commission recomm endations came to be implemented. During scrutiny at Headquarter, none of the ca ndidates recommended by the Recruitment Board were found eligible for the post o f Sweeper as per the new Recruitment Rules. Consequently, the Recruitment Board proceedings were cancelled and the petitioners could not be appointed. After imp lementation of 6th Central Pay Commission recommendations, post of Enrolled Foll ower Group-D was upgraded to Constable (Tradesmen) Group-C and new Recruitment R ules were framed. As per the new Recruitment Rules, eligibility qualifications p rescribed for the post of Constable (Tradesmen) is matriculation with two years of work experience in respective trade or one year certificate course from ITI o r Vocational Institute with atleast one year’s experience in the trade or two ye ars diploma from ITI in the trade or similar trade. As petitioners were not havi ng two years required work experience in the subject trade, they were not found eligible for the post. Since as per draft revised Recruitment Rules, none of the candidates were found eligible, the Recruitment Board proceedings were cancelle d on 23-08-2010. Respondents have, therefore, prayed for dismissal of the writ p etition. 15. Heard Mr. R. Majumdar, learned Counsel for the petitioners and M rs. R. Borah, learned Central Government Counsel appearing for all the responden ts. Mr. Majumdar, learned Counsel for the petitioners, submits that 16. the impugned action of the respondents in cancelling the earlier recruitment pro cess on the ground that none of the recommended candidates fulfill the eligibili ty criteria for the post in question as per the new Recruitment Rules is wholly unsustainable in law. Petitioners selection has to be judged on the basis of the Recruitment Rules then holding the field and not on the basis of subsequent Rec ruitment Rules which did not have retrospective effect. He, therefore, submits t hat necessary direction may be issued to the respondents to consider appointment of the petitioners on the basis of their selection pursuant to the advertisemen t dated 07-07-2008. Learned Counsel has placed reliance on the decision of the A pex Court in the case of Raisul Islam and others -Vs- Gokul Mohan Hazarika and o thers reported in 2011 (1) GLT (SC) 1. 17. Mrs. Bora, learned Central Government Counsel, on the other hand , by referring to the averments made in the counter affidavit submits that after implementation of the 6th Central Pay Commission recommendations, the post of E nrolled Follower ceased to exist. Therefore, for recruitment to the new post of Constable (Tradesmen), the candidates would have to fulfill the prescribed eligi bility criteria. As none of the candidates recommended by the earlier Recruitmen t Board fulfilled the eligibility criteria, the recommended list had to be cance lled. She submits that the course of action adopted by the authority is fully ju stified in the facts and circumstances of the case and do not suffer from any in firmity, legal or factual. Contending that no right of the petitioners has been violated, she prays for dismissal of the writ petition. 18. The submissions made have been considered. 19. The recruitment proceedings pursuant to the advertisement dated 07-07-2008 were conducted in terms of BSF (Tradesman Group- ’C’ and Enrolled Fol lowers Group- ’D’ Posts) Recruitment Rules, 2000. As per the said Rules, the qua lification prescribed for the post of Enrolled Follower (Sweeper) was Class- VII I pass. The recruitment rally was conducted on 11-09-2008 and on subsequent date s. The petitioners had the qualification for the said post and participated in the recruitment. The Recruitment Board recommended the petitioners for the post of Sweeper. The Board proceedings alongwith the consolidated merit list, after a pproval of Inspector General, BSF, Shillong, were forwarded to the BSF Headquart ers on 03-11-2008 for final approval. In the meanwhile, as per recommendation of the 6th Central Pay Commission, the cadre of Enrolled Follower was upgraded to Constable with higher eligibility criteria. The respondents have pleaded that si nce as per the draft revised recruitment Rules, none of the candidates were foun d eligible, the Recruitment Board proceedings were cancelled on 23-08-2010. 20. As per Rule 1(2), the new Recruitment Rules called the BSF Const able (Trademan), Group- ’C’ Posts, Recruitment Rules, 2010 came into force on th e date of its publication in the official gazette i.e. w.e.f. 14-08-2010. As alr eady noticed above, the said Rules provide for various posts of Constable, such as Constable (Cobbler), Constable (Tailor), Constable (Cook), Constable (Sweeper ) etc. The qualification prescribed is matriculation or equivalent from a recogn ized University or Board with two years work experience in respective trades or one year certificate course from ITI or Vocational Institute with atleast one ye ar experience in the trade or two years diploma from ITI in the trade or similar trade. 21. A close scrutiny of the new 2010 Rules would show that it is pro spective in its application. No restrospectivity is attached to the said Rules. As a matter of fact, this Court in its earlier order dated 10-03-2011 passed in W.P.(C) No.5820/2010 had held that the amendment to the Rules is not with ret rospective effect and there is absolutely no dispute that the recruitment proces s pursuant to the advertisement dated 07-07-2008 was conducted on the basis of t he old Recruitment Rules. This Court further held that (cid:28)there is also no dispute that the earlier selection has been cancelled by the respondents on the ground of coming into force of the new Recruitment Rules w.e.f. 14-08-2010 by which tim e the earlier selection process was over with drawal of the merit list. (cid:29) It is a settled legal proposition that if the Recruitment Rules 22. are amended retrospectively during the pendency of selection, in that event, sel ection must be held in accordance with the amended Rules. But if the amended Rul es are not retrospective in nature, the selection must be regulated in accordanc e with the Rules and orders which were in force on the date of advertisement. 23. The Hon’ble Supreme Court in the case of N.T. Devin Katti and ot hers -Vs- Karnataka Public Service Commission and others reported in (1990) 3 SC C 157 had held that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection but if he is eligi ble and is otherwise qualified in accordance with the relevant Rules and the ter ms contained in the advertisement, he does acquire a vested right for being cons idered for selection in accordance with the Rules as they existed on the date of advertisement. The Apex Court clearly held that such a candidate cannot be depr ived of that limited right on the amendment of Rules during the pendency of sele ction unless the amended Rules are retrospective in nature. 24. Again in the case of Dr. P.K. Jaiswal -Vs- Ms. Debi Mukherjee an d others reported in (1992) 2 SCC 148, the Hon’ble Supreme Court held that the r ight to selection crystallizes only after the candidate is called for interview pursuant to the advertisement. 25. nder :- In the case of Raisul Islam (supra), the Hon’ble Supreme Court held as u (cid:28)26. There can be no dispute that as a matter of policy the Government may take a conscious decision not to fill up vacancies for justifiable reasons, but at th e same time, having started a process of selection under the unamended Rules, it cannot take the stand that it still was entitled not to make appointments of pe rsons from amongst the candidates selected in terms of the process initiated und er the old Rules. In fact, in the instant case, the recommendation made by the A PSC was submitted to the Government on 22nd June, 1986, before the amended Rules came into operation on 21st July, 1986 whereby the quota system was discarded. In such a situation, in our view, the decision in K.Ramulu’s case (supra) cannot be applied to the facts of this case. 27. We are unable to agree with Mr. Hansaria that the High Court had committed a n error in relying on the unamended Rules since the law has been well settled th at the process of selection commenced on the basis of the Rules then in existenc e would continue under the said Rules, even though the Rules may have been amend ed in the meantime. Accordingly, the seniority of members of the service would, no doubt, be governed under Rule 19, but the selection process has to be complet ed under Rule 4 in order to attract the provisions of Rule 19. The vacancies for which the advertisement had been published in 1984 were directed to be filled u p by the High Court on the basis of the unamended Rule 4 which provided for quot a between promotees and direct recruits and, accordingly, placed 45 of the direc t recruits immediately below the first 45 promotees out of the list of 129 promo tees in keeping with the said quota system for the year 1986. 28. We agree with the view taken by the High Court which has been reiterated by Mr. Goswami in keeping with the well-established principle that once a process o f selection is started on the basis of the existing Rules of recruitment, the sa id Rules will continue to govern the selection process, notwithstanding any amen dment which may have been effected to the said Rules in the meantime. (cid:29) 26. Therefore, in view of the law laid down by the Hon’ble Supreme C ourt as noticed above, there can be no manner of doubt that the respondents were not justified in rejecting the candidature of the petitioners on the basis of t he new 2010 Rules. The respondents having undertaken the selection process pursu ant to the advertisement dated 07-07-2008 based on the earlier Recruitment Rules , were obliged to take the said process to its logical conclusion, notwithstandi ng subsequent coming into force of the 2010 Rules, which did not have retrospect ive effect. In view of above, writ petition stands allowed. Decision to canc 27. el the recommended list pursuant to the advertisement dated 07-07-2008 stands interfered with. Respondents shall now consider appointment of the petitioners based on their performance in the recruitment process pursuant to the advertisem ent dated 07-07-2008. The above process shall be carried out within a period of three months from the date of receipt of a certified copy of this order. 28. No cost.