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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.

1. Delay condoned.  Leave granted.

2. 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.

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3. 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.     

4. 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

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IV to the Rules, which was in conformity with the proposal accepted by the

Commission.  

5. 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.  

6. 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 &

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Others1 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.

7. 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.

1 (2011) 6 SCC 725

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8. 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.  

9. 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 Rao2   

………….

2  (1983) 3 SCC 284

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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 Rao3.

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

3 (1997) 3 SCC 59

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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.”

10. 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,

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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.

11. 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.

12. 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

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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