High Court
Case Details
WP(C) 4637/2012 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) By way of this writ petition, petitioner seeks quashing of memorandum dated 14.7.2012 issued by the office of Directorate General, Sashastra Seema B al whereby it was informed that notification of Recruitment Rules of Veterinar y cadre of Sashastra Seema Bal (SSB) was under process with Ministry of Home Af fairs, Government of India and that Departmental Promotion Committee (DPC) woul d be convened after notification of Recruitment Rules as directed by the Minist ry of Home Affairs. Further prayer made is for a direction to the respondents t o hold review DPC to consider the case of the petitioner for promotion to the r ank of Commandant (Veterinary)/Chief Veterinary Officer (SG) with effect from t he date of vacancy i.e. 1.1.2012 and to give all consequential benefits. 2. Case of the petitioner is that he is presently serving as Chief Veterin ary Officer (Combatised) in the SSB, Frontier Headquarter at Guwahati. He had e ntered SSB as Veterinary Officer on 19.9.1989. Ministry of Home Affairs( MHA) h ad approved restructuring of SSB providing for the following posts in the Veteri nary set up of SSB :- (1) DIG ( Veterinary) &. 1 (2) Commandant (Veterinary) &.. 3 (3) Deputy Commandant(Veterinary) &.. 5 (4) Assistant Commandant(Veterinary) & & 22 1. Consequently, SSB Directorate also conveyed implementation of restruc turing of SSB including Veterinary set-up. Prior to restructuring, on option b eing sought for, petitioner had opted for Combatised Veterinary Officer. MHA ha d allowed SSB to follow Recruitment Rules of Border Security Force( BSF) till f inalization of its own Recruitment Rules. It may be mentioned that altogether 32 Officers of the Veterinary cadre of SSB had opted for combatisation. There after, Veterinary Officers of Veterinary cadre of SSB were re-designated and petitioner was redesignated as Chief Veterinary Officer (Combatised). 2. SSB Directorate order dated 4.6.2009 provided that Combatised Veteri nary Officers would be governed by the Recruitment Rules of BSF called BSF (Combatised Veterinary Officers) Recruitment Rules, 2003 till finalization of
Facts
its own Recruitment Rules. 3. As per instructions of Government of India, Department of Personnel and Training dated 8.9.1998, the first day of the year in which the vacancies arise is to be taken as the date for determination of eligibility of the officers i n the feeder cadre. As on 1.1.2012, out of the 3 sanctioned posts of Chief V eterinary Officer {Selection Grade( SG) (Combatised)}/Commandant( Veterinary), 2 posts became vacant. As per the BSF (Combatised Veterinary Officers) Recruitm ent Rules, 2003, the eligibility condition for the post of Chief Veterinary Offi cer{ (SG)(Combatised)}/Commandant (Veterinary) is that of Chief Veterinary Of ficer with 2 years regular service in the grade with total minimum service of 1 5 years in Group-A or 20 years of combined Group ’A’ and ’B’ gazetted servic e and falling in medical category SHAPE-1. Method of recruitment is promotion by selection. 4. According to the petitioner, he has completed 23 years of service in reg ular General Central Service Group ’A’ Gazetted Non-Ministerial and having held the post of Chief Veterinary Officer since 1.4.2009, he fulfills the eligibil ity conditions as on 1.1.2012 for promotion to the post of Chief Veterinary Offi cer {(SG)(Combatised)}/Commandant (Veterinary). 5. Petitioner submitted a representation dated 24.1.2012 before the higher authorities seeking promotion. As he did not receive any response, he submitt ed another representation dated 13.7.2012 requesting holding of DPC to consider his case for promotion. 6. Responding to the above representations by issuing the impugned memoran dum dated 14.7.2012, respondents stated that DPC would be convened after no tification of Recruitment Rules which was under process with MHA. 7. Contending that there has been an inordinate delay in framing the Rec ruitment Rules which in the process has adversely affected the promotional pro spects of the petitioner as inspite of applicability of the BSF ( Combatised Veterinary Officers) Recruitment Rules, 2003, the respondents have taken the de cision to wait for notification of Recruitment Rules of the Veterinary cadre of SSB, petitioner has filed the present writ petition seeking the reliefs as i ndicated above. 8. Contention of the petitioner is that since a decision has already been taken to follow the BSF Rules till finalization of its own Recruitment Rules, there is no justification on the part of the SSB authorities to take a diffe rent view now by contending that DPC will be held only after finalization of the SSB Recruitment Rules for Veterinary cadre. In the process, the right of th e petitioner for promotion has been violated because of which his career prosp ects have been adversely affected. 9. Petitioner has filed an additional affidavit to place on record the S ashastra Seema Bal Group ’A’ Combatised Veterinary Officers Recruitment Rules, 2013 which have been notified after filing of the present writ petition. The sa id Rules have been framed in exercise of the powers conferred by sub-section(1) read with clauses (a) and (c) of sub-section (2) of section 155 of the Sashastra Seema Bal Act, 2007. The effective date of coming into force of the said Recru itment Rules is 10.1.2013 when it was published in the Gazette of India. Pet itioner has contended that the said Rules have no retrospective effect and th at vacancies which occurred prior to coming into force of the aforesaid Recru itment Rules of 2013 would be governed by the BSF Rules and not by the notified Recruitment Rules. 10. Respondents have filed counter affidavit. It has given the justificatio n for restructuring of the Veterinary cadre of SSB. On option being given, 32 Veterinary officers opted for combatised service. As no Recruitment Rules were in force in the combatised Veterinary service in SSB, the Government had approve d application of Recruitment Rules of BSF to the Combatised Veterinary Service i n SSB till framing of its own Recruitment Rules. Finalization of Recruitment R ules of Combatised Veterinary Officers in SSB took time as the process of restru cturing was going on. Restructuring was finally approved by MHA on 19.12.20 11. After approval of restructuring, the process of formulation of Recruitment Rules was initiated and the Recruitment Rules were notified on 10.1.2013. Since no post of 2nd -in-Command (Veterinary)/ Chief Veterinary Officer, which the petitioner is presently holding, has been sanctioned in the restructuring, it is administratively not possible to consider him for promotion to the rank of Commandant (Veterinary)/ Chief Veterinary Officer under the notified Recruitmen t Rules of 2013. As per the said Recruitment Rules, Deputy Commandant (Veterin ary) with 10 years of regular service in the cadre shall be eligible for promot ion to the rank of Commandant (Veterinary). The existing 2nd-in-Command (Veteri nary) with 5 years regular service in the grade shall also be eligible for promo tion. As the petitioner had not completed the stipulated regular service, he co uld not be promoted. A DPC for promotion of Chief Veterinary Officer/2nd -in- Command (Veterinary) to the rank of Chief Veterinary Officer (SG)/Commandant (Ve terinary) was convened on 28.2.2013 for filling up 2 vacant posts of Commandant (Veterinary). As the petitioner took over the 2nd -in-Command (Veterinary) / Ch ief Veterinary Officer on 1.4.2009 and as such had not completed the requisite 5 years of regular service in the cadre, therefore, he could not be recommended for promotion. Petitioner will complete the required 5 years of regular se rvice in the cadre on 1.4.2014 and will then become eligible for promotion to the rank of Commandant (Veterinary). Though under the BSF Recruitment Rules, 2 years of regular service as Chief Veterinary Officer was sufficient to attain el igibility as against 5 years under the notified Recruitment Rules of SSB, since notification of the Recruitment Rules of SSB was in the final stage, it was dec ided to convene DPC only after notification of Recruitment Rules to avoid futur e complicacies as the BSF Rules were adopted only as a temporary measure. 11. Petitioner has filed a rejoinder affidavit. He has contended that non -consideration of his case for promotion under the BSF Rules which was adopted till finalization of the SSB Recruitment Rules is without any justification wh en vacancies were available as petitioner was eligible for promotion under the said Rules. In the circumstances, decision to wait for the notification of t he SSB Recruitment Rules whereunder petitioner is still to attain eligibility, is not at all justified. Since the vacancies had occurred when the BSF Rule s were applicable, the said vacancies ought to have been filled up by following the BSF Rules. 12. , learned Central Government Counsel appearing for the respondents.
Legal Reasoning
23. In the case of Deepak Agarwal and Anr vs. State of U.P. and Ors. r eported in (2011) 6 SCC 725, the Apex Court held as under :- (cid:28)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 (cid:28)rule i n force (cid:29) 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 ol d vacancies under the old rules is interlinked with the candidate having acquir ed a right to be considered for promotion. The right to be considered for prom otion 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 particul ar time-frame, within which the selection process is to be completed. In the pre sent 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. * * * * * * * * * * * * * * * * * 32. Similarly, this view has been reiterated by this Court in State of M.P. v. Raghuveer Singh Yadav, H.S.Grewal v. Union of India and Rajasthan Public Ser vice Commission vs. Chanan Ram. This Court in Rajasthan Public Service Commissi on case has held that it is the rules which are prevalent at the time when the consideration took place for promotion, which would be applicable. In SSC para 17, it has been held as follows : (SCC pp.218-19) (cid:28)17. In State of M.P. v. Raghuveer Singh Yadav a Bench of two learned Judges o f this Court consisting of K.Ramaswamy and N. Venkatachala, JJ., had to consider the question whether the State could change a qualification for the recruitme nt during the process of recruitment which had not resulted into any final decis ion in favour of any candidate. In para 5 of the Report in this connection it w as observed that it is settled law that the State has got power to prescribe qua lification for recruitment. In the case before the court pursuant to the amende d Rules, the Government had withdrawn the earlier notification and wanted to pro ceed 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 t he written examination had only legitimate expectation to be considered accordin g to the rules then in vogue. The amended Rules had only prospective operation . The Government was entitled to conduct selection in accordance with the chan ged rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State was entitled to withdraw the n otification by which it had previously notified recruitment and to issue fres h notification in that regard on the basis of the amended Rules. In J & K Publi c Service Commission v. Dr. Narinder Mohan 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 r ecruiting agency. In this connection it was observed that the process of selecti on against existing and anticipated vacancies does not create any right to be ap pointed 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 pe titioner, stated that it is not his case that the writ petitioner should be app ointed to the advertised post. All that he claimed was his right to be considere d for recruitment to the advertised post as per the earlier advertisement date d 5-11-1993 Annexure P-1 and nothing more. In our view, the aforesaid limited co ntention 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 infructu ous and otiose 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 favou r of the appellants and against the respondent-writ petitioner. (cid:29) 24. In view of the legal position as discussed above, contention of the p etitioner that the two vacancies in the promotional post which occurred on 1.1.2 012 should be filled up by applying the BSF Rules then holding the field cannot be accepted. There is no merit in the claim of the petitioner. 25. o order as to cost. Writ petition is accordingly dismissed. However, there shall be n
Arguments
Heard Mr. D. Borah, learned counsel for the petitioner and Ms. B.Das 16. Learned counsel for the petitioner has referred to the pleadings and c ontends that the Rules as were applicable on the date the vacancies arose will be applicable. Since the vacancies in the promotional post fell vacant in the year 2012 when the SSB Recruitment Rules were not yet borne and as per decisio n of MHA, BSF Recruitment Rules were to be followed in the interregnum, case of the petitioner for promotion ought to have been considered under the BSF Rec ruitment Rules. Learned counsel has also placed reliance on the judgments of t he Apex Court in the case of Y.V. Rangiah and Ors Vs. J. Sreenivasa Rao and O rs reported in (1983) 3 SCC 284 and in the case of State of Rajasthan Vs. R. D ayal and Ors reported in (1997) 10 SCC 419. 17. Learned Central Government Counsel opposing the submissions made by lear ned counsel for the petitioner, submits that SSB authorities for administrative reasons had decided to wait till the notification of the SSB Recruitment Rules to hold DPC. No fault can be found with the decision to hold DPC under the no tified Recruitment Rules instead of holding DPC on the basis of the BSF Rules w hich were adopted only as a temporary measure to meet any emergent situation. Such an approach cannot be said to be arbitrary or unreasonable. She further s ubmits that there is no hard and fast rule which says that the Rules which were in force when the vacancies arose will have to be applied while filling up suc h vacancies. She submits that petitioner will attain eligibility for promotion under the notified Recruitment Rules on 1.4.2014 whereafter his case will rec eive due consideration. 18. Submissions made have been considered. 19. Short point for consideration is whether the vacancies in the post of Commandant(Veterinary)/Chief Veterinary Officer (SG) in the SSB which fell v acant on 1.1.2012 are to be filled up by following the BSF (Combatised Veterina ry Officers ) Recruitment Rules, 2003 which were then being adopted temporarily or by the Sashastra Seema Bal Group-A Combatised Veterinary Officers Recruitment Rules, 2013, which govern the service but were notified on 10.1.2013 ? 20. In a case where a set of Recruitment Rules are already holding the field and vacancies had occurred prior to amendment of the said Recruitment Ru les, there can be no manner of doubt that the vacancies which occurred prior to amendment would be governed by the un-amended Rules and not by the amended Rule s. This has been held by the Hon’ble Apex Court in Y.V. Rangiah (Supra) and in t he latter case of State of Rajasthan(Supra). 21. But the same is not the position in the present case. There were no Re cruitment Rules when vacancies occurred on 1.1.2012. SSB authorities had deci ded to follow BSF Recruitment Rules as a temporary measure to meet any eventual ity till finalization of its own Recruitment Rules. As already noticed above, its own Recruitment Rules have been notified on 10.1.2013 and the petitioner’s case will be considered as per the notified Recruitment Rules. 22. There is no rule of universal or absolute application that vacancies ar e to be filled up invariably by the law existing on the date when the vacancie s arose. It is the Rule which was prevalent when the consideration took place for promotion, the same shall be applicable.