As against the case of total exclusion and absolute deprivation of a chance to be considered as in the case of Deepak Agarwal (supra), 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. In our view, the instant case is fully covered by the law laid down by this Court in Deepak Agrawal (supra) and the High Court was completely in error in allowing the writ petition and in dismissing the writ appeals.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 691-693 OF 2017
(ARISING OUT OF SLP (CIVIL) Nos. 21462-64 OF 2013)
State of Tripura & Ors. ….Appellants

Versus

Nikhil Ranjan Chakraborty & Ors. …. Respondents

WITH

CIVIL APPEAL Nos. 694-698 OF 2017
(ARISING OUT OF SLP (CIVIL) Nos. 21465-69 OF 2013)
J U D G M E N T

Uday Umesh Lalit, J.
Delay condoned. Leave granted.

These appeals challenge the common Judgment and Order dated 30.08.2012
passed by the Division Bench of Guwahati High Court, Agartala Bench
dismissing Writ Appeal Nos.62, 63 and 64 of 2012 and confirming the
decision of the Single Judge in Writ Petition (Civil) Nos.104, 105, 106,
153 and 181 of 2012.

The Tripura Civil Service Rules, 1967 (hereinafter referred to as the
“Rules”) made in exercise of power conferred by Article 309 of the
Constitution, deal inter alia with constitution of Tripura Civil Service
and its classification. Part III deals with “Method of Recruitment”
while Part-V deals with “Recruitment by Selection”. Rule 13 contemplates
constitution of a “Selection Committee” to consider from time to time the
cases of officers eligible to be considered for selection. Under Schedule
IV to the Rules, names of posts are set out which are feeder posts for
Tripura Civil Service.

State of Tripura was desirous of amending the aforesaid Schedule IV by
including certain other posts as feeder posts in “Group A” and “Group B”
and a proposal to that effect was forwarded to Tripura Public Service
Commission on 23.08.2011. The Commission accepted the proposal vide
its communication dated 26.09.2011. On 24.11.2011, in pursuance of Rule 13
of the Rules, a Selection Committee was constituted for considering cases
of eligible officers holding feeder posts in “Group A” and “Group B” of
Schedule IV of the Rules for appointment to the post of Tripura Civil
Service Gr.II against promotional quota. On 24.12.2011 a Notification dated
19.12.2011 was published in the Gazette amending the Rules by 28th
Amendment including additional posts in Group A and Group B of Schedule IV
to the Rules, which was in conformity with the proposal accepted by the
Commission.

Soon thereafter, a communication was addressed by General Administration
(Personnel & Training) Department of State of Tripura to all the concerned
departments that information/particulars of all eligible officers holding
feeder posts of TCS (Groups- A&B) as amended by 28th Amendment be sent to
the Department for taking necessary action.

The action on part of State of Tripura in relying upon the amended Rules
and thereby expanding the feeder posts was immediately challenged by 22
interested candidates by filing Writ Petition Nos.104, 105, 106, 153 and
181 of 2012. It was submitted that the Notification dated 24.11.2011
having constituted a Selection Committee for filling up posts of TCS Gr.-II
against promotional quota and information/particulars of eligible officers
having already been called for, 28th Amendment effected in December, 2011
could not be pressed into service; that the instant selection ought to be
governed by pre-amendment situation and as such a direction be issued to
the State to confine the selection to those categories which were mentioned
in Schedule IV to the Rules as they existed before the amendment. The
Advocate General appearing for the State relied upon certain decisions of
this Court including Deepak Agarwal & Anr. v. State of Uttar Pradesh &
Others[1] to contend that a vacancy ought to be filled in terms of the
amended Rules. The Single Judge of the High Court allowed the petitions
holding that the selection in the present case ought to be undertaken in
terms of pre-amended Rules.

The aforesaid decision was questioned by interested candidates, who as a
result of the 28th Amendment were entitled to be considered, by filing Writ
Appeal Nos.62, 63 and 64 of 2012. These appeals were dismissed by the
Division Bench of the High Court at the preliminary stage. The submission
that the Single Judge had not considered the ratio of the decision of this
Court in Deepak Agarwal (supra) was dealt with by the Division Bench as
under:

“17. Mr. Bhowmik has tried to convince us that though the learned Single
Judge took note of Deepak Agarwal (supra), but did not give any reason why
the ratio of the said decision would not apply in the case in hand.

18. There is no doubt that the learned Single Judge did not go for
detailed reasoning, but it cannot be said that he has not discussed the
said decision while passing the impugned judgment. However, as the said
decision is placed before us again, we have also gone through the paragraph-
26 of the said decision……”

The Division Bench however, confirmed the view taken by the Single Judge
and dismissed the appeals at the admission stage, which decision is
presently under appeal.

We heard Mr. J.P. Cama, learned Sr. Advocate appearing for State of Tripura
and Shri R. Basant, learned Sr. Advocate and Ms. Vandana Sehgal, learned
Advocate appearing for the concerned respondents who were the original writ
petitioners.

In Deepak Agarwal (supra) 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
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[2]

………….

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 the
submissions of the appellants that the controversy herein is squarely
covered by the judgment of this Court in Y.V. Rangaiah. The High Court has
relied on the judgment of this Court in K. Ramulu (Dr.) v Dr. S.
Suryaprakash Rao[3].

24. We are of the considered opinion that the judgment in Y.V. Rangaiah
case 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.”
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
(supra), 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.

In our view, the instant case is fully covered by the law laid down by this
Court in Deepak Agrawal (supra) and the High Court was completely in error
in allowing the writ petition and in dismissing the writ appeals. We,
therefore, allow these appeals, set aside the judgment under appeal and
dismiss the Writ Petition (Civil) Nos.104, 105,106 153 and 181 of 2012.
Before we part, we must also express that a selection contemplated in the
year 2011 in which the original writ petitioners did not stand excluded has
been stalled as a result of challenge raised and litigation initiated by
the original writ petitioners. In our view the challenge was totally
uncalled for and avoidable. However, it resulted in putting in abeyance
the entire process of selection and adversely affected the administration.
We, therefore, feel compelled to impose exemplary costs of Rs.10,000/- on
each of the writ petitioners which shall be deposited with the High Court
within six weeks from the date of this order and upon such deposit, the
entire amount shall be made over to the Chief Minister’s Relief Fund for
State of Tripura.

..…..…..…………..J.
(Adarsh Kumar Goel)

….…………………J.
(Uday Umesh Lalit)

New Delhi,
January 20, 2017

———————–
[1] (2011) 6 SCC 725
[2] (1983) 3 SCC 284
[3] (1997) 3 SCC 59

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