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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).  8253 OF 2018 [ARISING OUT OF S.L.P. (CIVIL) NO. 34621 OF 2016]

STATE OF ORISSA AND OTHERS         … APPELLANTS (S)

VERSUS

STATE (TRYSEM) LIVE STOCK INSPECTOR  SANGHA AND OTHERS             … RESPONDENT (S)

J U D G M E N T

KURIAN, J.

1. Leave granted.

2. In direct recruitment to a post, whether qualification is to be

seen, with reference to the date of occurrence of vacancy or at the

time of recruitment, is the question arising for consideration in this

case.

3. The  Orissa  Non-Gazetted  Veterinary  Technical  Service

(Recruitment  and  Conditions  of  Service)  Rules,  notified  on  4th

January,  1984  (referred  to  in  the  impugned  Judgment  as  1983

Rules), provides for recruitment to two cadres - Veterinary Technician

and  Livestock  Inspector.  90  per  cent  of  the  posts  of  Livestock

Inspector is to be filled-up by direct recruitment and the remaining

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10  per  cent  by  promotion  of  Class  IV  field  employees  who  are

matriculates  and  have  field  experience  for  two  years  in  the

treatment  of  animals.  Veterinary  Technician  post  is  filled-up  by

promotion from the cadre of Livestock Inspectors. Rules 5 and 6 of

the 1984 Rules provide for the method of recruitment and selection

procedure. The Rules read as follows:

“Direct recruitment to the cadre of Livestock Inspector:-  5.  Direct appointment to the posts in the cadre of Livestock Inspector’s shall be made by Director  in  order  of  merit  out  of  the  list  of candidates successfully completed the training.

Selection  of  candidates  for  Livestock  Inspector Training:-  6.  In  order  to  be  eligible  to  undergo Livestock  Inspector’s  Training  a  candidate  must fulfill the following conditions, namely:-

a) He must  be citizen of  India  or  a  subject  of Nepal/ Bhutan. Provided that the eligibility of persons other than citizen of India shall cease on such date as the Government may by or- der appoint in that behalf,

b) He must have passed either the class VII ex- amination with Oriya as a subject or passed a test  in  Oriya  in  M.E.  School  standard  con- ducted by the Education department,  

c) He shall  be over  eighteen years  and below twenty seven years of age on the date of ad- mission  to  the  Livestock  Inspector  Training Center: Provided that maximum age limit may be re- laxed by five years in respect of candidate be- longing to Scheduled Castes and Scheduled Tribes and to such extent in respect of candi- dates of such other categories as the Govern- ment may by general or special order specify from time to time,

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d) He must have passed at least matriculation or equivalent examination of the Board of Sec- ondary Education of a recognized University,  

e) He must be a good character, f) He must be of sound health, good physique

with height not less than 5’2” and chest unex- panded 30” and must also be of active habits and be free from organic defects and physical and mental infirmity,  

g) He must know cycling well, h) He must not have more than on wife living,”

4. By  Notification  dated  19.09.1997,  the  1984  Rules  were

amended as per the Orissa Group ‘C’ Veterinary Technical Service

(Recruitment and Conditions of Service) (Amendment) Rules, 1997.

5. As  per  the  amendment,  the  educational  qualification,

which  was  previously  “matriculation”,  has  been  changed  to

“Intermediate  in  Science  or  +2  Science  or  Higher  Secondary

(Science) or such other equivalent examination or +2  Vocational

courses in the  field of Animal Husbandry/ Dairy/Poultry/Meat/Animal

Production  from  a  recognised  educational

institution/Board/Council/University :  Provided that candidates who

have passed +2 vocational courses shall be given preference while

selecting the candidates to undergo Live-Stock Inspector’s Training”.

6. There is also a proviso to the amendment that in case of the

candidates selected for training from amongst the Group ‘D’ field

employees.  The  required  qualification  is  only  “Matriculation  or

equivalent  examination  of  the  Board  of  Secondary  Education,

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Orissa”.

7. The High Court was of the view that there are two set of Rules –

1983 Rules and 1997 Rules. As we have noted above, there is only

one set of Rules notified on 4th January, 1984, amended in 1997.

Unfortunately, the High Court, as per the impugned Judgment, took

it as two set of Rules. The High Court hence took the view that the

vacancies which existed prior to the 1997 amended Rules should be

filled-up as per the qualification which existed as per the 1984 Rules,

even if the recruitment is after the amendment. Thus aggrieved, the

State is in appeal.

8. Mr.  Maninder  Singh,  learned  Additional  Solicitor  General,

however, points out that the 1983 Rules having been amended in

1997, any direct recruitment, after the amendment, has to be made

in  terms  of  the  amended  rules.   The  situation  would  have  been

different  in  case  of  promotion  where  the  persons  aspiring  for

promotion could have laid a claim for promotion in respect of the

vacancies  available  prior  to  the  amendment.   That  is  not  the

situation in the present case.  It is a case of direct recruitment.  As

held by this Court in  Union of India and another v.  Yogendra

Singh  1,  in  the  case  of  direct  recruitment,  the  candidate  should

possess the qualification as per Rules which are in force at the time

of recruitment irrespective of the date of occurrence of vacancy. 1 (1994) Suppl. 2 SCC 226

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9. Mr.  R.  P.  Bhat,  learned  Senior  Counsel  appearing  for  the

respondents,  has strenuously contended that the respondents are

people who have been sent for training imparted by the Government

under TRYSEM (Training Rural Youth for Self Employment) Scheme

for a period of one year during 1994 to 1997 and they have been

awaiting appointment as Livestock Inspectors/Veterinary Assistants,

etc., as per the then existing Rules of 1983.  It is also submitted that

all  those  who  have  been  trained  under  the  project,  have  been

appointed  as  per  the  1983  Rules  with  a  qualification  of

“matriculation”, prior to the introduction of amendment to the Rules

with  effect  from  1997.   Therefore,  it  is  contended  that  all  the

vacancies which existed prior to the amendment in the Group ‘C’

cadre, should be filled-up with persons who have been trained under

the Scheme, as was done in the case of the previous batches. It is

also submitted that even under the amendment, there is a category

of  people  who  have  been  found  qualified  for  appointment  with

matriculation  and,  therefore,  the  respondents  should  also  be

considered  since  they  also  have  the  same  qualification  as

matriculation and training.      

10. There cannot be any quarrel with the first principle in service

jurisprudence, that for direct recruitment, the qualification has to be

seen at the time of recruitment. In direct recruitment a lot of policy

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issues are also involved. It is not mandatory that all such vacancies

should be filled up and if at all to be be filled up, should be filled up

as  and  when  vacancies  arise.  Those  are  all  matters  left  to  the

conscious decision of the appointing authority. It is also open to the

competent authority to decide the mode and manner of selection

and  prescribe  the  qualification  and  eligibility  at  the  time  of

recruitment. However, in the case of promotion, the incumbents are

entitled to stake a claim for vacancies which existed prior to the

amendment to be filled-up as per the un-amended rules.  That is

based on the principle of legitimate expectation. Hence, we find it

difficult to appreciate the submission made by Shri R. P.Bhat, learned

Senior Counsel, that the qualification should be seen as on the date

of occurrence of vacancies, in the case of direct recruitment.

11. In  Yogendra  Singh (supra),  this  Court  has  dealt  with  the

similar situation and it has been held that “No candidate who does

not  possess  the  currently  prescribed qualifications,  but  who may

possess the educational qualifications prescribed earlier, can be said

to qualify  or  have any vested right  to  appointment even against

some earlier unfilled vacancy. Every candidate who aspires to fill any

vacancy must possess the educational qualifications that are then

prescribed”.

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12. The reliance placed by the High Court in Vinod Kumar Sangal

v.  Union of India and others  2, is of no assistance since it was a

case  of  promotion  and  bunching  of  vacancies  for  several  years

where the requirement was in fact selection from panel  prepared

year-wise.

13. No doubt, there is a proviso under the amended Rules that for a

candidate  selected  for  training  from  amongst  Group  ‘D’  filed

employees, the qualification is only matriculation or equivalent. That

is  a  relaxation  given  under  the  Rules  in  respect  of  in-service

candidates for training followed by appointment.  The respondents

are  not  in-service  candidates.  They  can  aspire  for  only  direct

recruitment.  

14. Thus, the view taken by the High Court that the appointment

will have to be made in terms of the Rules existing at the time of

occurrence of vacancy, for direct recruitment, placing wrong reliance

in  Vinod Kumar Sangal (supra) does not reflect the correct legal

position. As we have already stated above, for promotees, they can

always  stake  a  claim  for  promotion  in  respect  of  the  vacancies

available  prior  to  the amendment  to  be filled-up in  terms of  the

amended Rules.  That is not the situation in the present case.

2 (1995) 4 SCC 246

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15. Faced with  such a situation,  the learned Senior  Counsel  has

drawn  our  attention  to  the  letter  dated  01.12.2000  from  the

Government  of  Orissa  in  the  matter  of  employment  of  TRYSEM

Livestock Inspectors in various programmes in the Animal and Rural

Development Department. In that letter, the Government has made

it clear that the experience of the people for recruitment will have to

be  seen,  but  the  educational  qualification  has  to  be  seen  as  on

December  1998,  which  is  after  amendment.   However,  the

Government has stated in the letter that the Department “has to

formulate  a  specific  project  for  absorption  of  500  unemployed

TRYSEM  trained  youths  which  in  long  run  will  help  in  optimum

development of the Department”.    It may be relevant to note that

the  very  appointment  is  from trained candidates.  That  being  the

stand taken by the Government, as reflected in the letter, we make

it  clear  that  it  will  be  open  to  the  respondents  to  make  an

appropriate representation before the Government for relaxation of

the  qualification  in  view  of  their  training,  in  which  case,  the

Government will consider the same expeditiously. It will also be open

to the respondents to bring to the notice of the Government that

after  training,  they  had  actually  been  engaged  as  Livestock

Inspectors on various occasions.

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16. Subject to the above, the impugned Judgment of the High Court

dated 18.07.2016 in Writ Petition (Civil)  No. 24638 of 2011 is set

aside and the appeal is allowed. No costs.

……….......................J.                                                          [KURIAN JOSEPH]  

...............................J.            [SANJAY KISHAN KAUL]  

NEW DELHI; AUGUST 14, 2018.