Madhya Pradesh High Court
Shiv Krishna Garg vs High Court Of Madhya Pradesh on 9 September, 2021
Author: Prakash Shrivastava
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WP. No.4792/2020 and others
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
Case Number and WP No.4792/2020
Parties Name
Shailesh Kumar Sonwane
Vs.
State of M.P. and others
W.P. No.4801/2020
Sarvesh Pachori
vs.
State of M.P. and others
W.P. No.4808/2020
Mithuan Prajapati
vs.
State of M.P. and others
W.P. No.6675/2020
Shiv Krishna Garg
vs.
High Court of M.P.
Date of Order 09/09/2021
Bench Constituted Division Bench:
Justice Prakash Shrivastava
Justice Vishal Dhagat
Judgment delivered by Justice Prakash Shrivastava
Whether approved for Yes
reporting
Name of counsels for Shri Naman Nagrath, Sr.
parties Advocate with Shri Vikram
Singh and Satyendra Jain,
Advocates for the petitioners.
Shri Piyush Dharmadhikari, Shri
B.N. Mishra, Shri Arpan J.
Pawar and Shri Ashish Shroti,
Advocates for the respondents.
Law laid down 1. Purpose of wait list:- A wait
list is a list prepared in the selec-
tion process by the competent
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WP. No.4792/2020 and others
authority of eligible and quali-
fied candidates who in order of
merit are placed below the last
selected candidate. Such lists
are prepared either under the
Rules or even otherwise mainly
to ensure that working in the set
up does not suffer if selected
candidates do not join for one or
the other reason or the next se-
lection or examination is not
held soon.
2. Right of the wait list candi-
date:- A candidate in the waiting
list as per his position in the list
has right to be considered for ap-
pointment if for any reason the
post falls vacant during the va-
lidity period of the list. Such a
right is not a vested right but it is
only a right to be considered for
appointment. The appointment
authority can deny appointment
by giving any justifiable reason.
3. When a select list candidate
be denied appointment:-The
appointing authority must give a
justifiable or non-arbitrary rea-
son for not filling up the posts
from the list of the selected can-
didates. It is not at the whims
and fancies of the State to keep
the advertised posts vacant when
the select list is operative as the
same would run counter to the
mandate of Article 14 of the
Constitution. Though the justifi-
cation offered by the State is nor-
mally not questioned by the
Court but the justification must
be reasonable and not arbitrary
or capricious.
4. Whether wait list candidate
has any legitimate expecta-
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WP. No.4792/2020 and others
tion:-The wait list candidate has
legitimate expectation for being
considered for appointment
when the post in question falls
vacant. The legitimate expecta-
tion of the select list candidate
for consideration for appoint-
ment when the post in question
falls vacant cannot be denied by
the State Government by acting
arbitrarily or without offering
any justifiable reason.
5. If norms can be changed af-
ter the commencement of the
selection process:-Once the se-
lection process commences on
the basis of certain norms then
those norms cannot be changed
and the right accrued to a candi-
date by virtue of the original
norms cannot be taken away. The
principle that the Rules of game
cannot be changed after the com-
mencement of the game applies
to the selection process also.
6. Applicability of Rules noti-
fied in 2019 to pending selec-
tion process:-The modified
Madhya Pradesh District Court
Establishment (Recruitment and
Conditions of Service) Rules,
2016 notified on 28.06.2019 has
no retrospective applicability and
Rule 17(3) of these modified
Rules has no application to the
selection process which com-
menced under the original Rules.
7. The effect of lapse of select
list during the pendency of the
writ petition:-The principle of
"actus curiae neminem
gravabit" i.e. the act of the
Court shall prejudice no one
applies in such cases and if the
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WP. No.4792/2020 and others
writ petition is filed during the
validity of the select list, the
period during which the petition
remained pending can be
excluded for issuing appropriate
direction on establishment of the
right.
Significant paragraph 8 to 34
numbers
ORDER
09.09.2021
Per: Prakash Shrivastava, J.
This order will govern the disposal of WP No.4792/2020,
W.P. No.4801/2020, W.P. No.4808/2020 and W.P. No.6675/2020
since it is jointly submitted by counsel for the parties that these
writ petitions involve common issue in the identical fact
situation.
2. For convenience the facts are noted from W.P.
No.4792/2020. In the writ petition, the petitioner has prayed for
a direction to the respondents to appoint the petitioner on the
vacant post of Assistant Grade-III by giving effect to the waiting
list and has further challenged the validity of Rule 17(3) of the
Rules of 2019.
3. An advertisement dated 02.06.2017 was issued by the
respondent No.3 for recruitment to the post of Assistant Grade-
III. After the screening, District-wise select list (Annexure P/3)
was declared and the waiting list (Annexure P/2) in respect of
UR, OBC, SC and ST candidates was also published on
20.09.2018. As per the averment, in the petition, the name of
the petitioners find place in the waiting list. Further case of the
petitioners is that certain vacancies are still unfilled on account
of non-joining of some of the selected candidates. As per the
averment made in para 5.7 of W.P.No.4792/2020, the
WP. No.4792/2020 and others
respondents have cleared the waiting list by making some of the
appointments and the petitioner's name has come up from Sr.
No.42 to Sr. No.5 in the waiting list and 6 seats in the UR
category are still lying vacant. Further case of the petitioner is
that since the advertisement was published on 02.06.2017, the
result of the examination was declared on 20.09.2018, therefore,
validity of the select list will be 18 months in terms of the rules
which were prevailing at the time of issuance of advertisement
and conduct of examination and the same cannot be reduced to
12 months on the basis of new Rules which have subsequently
come in force.
4. The stand of the respondent No.2 and 3 is that though in
the Rules of 2016, the validity of the select list was 18 months
from the date of declaration of final list but in terms of the
subsequent Rules published in the year 2019, the validity period
has been reduced to 12 months and justifiable reason exists for
reducing the validity period and now the select list has lapsed as
the validity period is over.
5. Shri Naman Nagrath, learned senior counsel has
submitted that since the petitioners have been placed in the
waiting list, therefore, they have a legitimate right of
consideration for appointment on the posts which have fallen
vacant due to non-joining, resignation, etc. of the selected
candidates. In support of his submission, he has placed reliance
upon the judgments of Supreme Court in the cases reported in
(1997) 8 SCC 488 (Surinder Singh and others vs. State of
Punjab and another), (1994) Supp. 2 SCC 591 (Gujarat State
Dy. Executive Engineers' Association vs. State of Gujarat and
others), (1999) SCC Online Rajasthan 241 (Ram Babu Koli
Vs. Zila Parishad Sawai Madhopur), (1986) 3 SCC 273 (S.
WP. No.4792/2020 and others
Govindaraju Vs. Karnataka SRTC and another) and (1995)
Supp. 2 SCC 230 (R.S. Mittal Vs. Union of India).
He has further submitted that the State cannot act
arbitrarily and if the posts are lying vacant, the appointment
cannot be denied unless there is a valid justifiable reason. In
support of his submission, he has placed reliance on the
judgments of Supreme Court in the cases reported in (2019) 12
SCC 798 (Dinesh Kumar Kashyap and others vs. South East
Central Railway and others), (2010) 7 SCC 678 (East Coast
Railway and another Vs. Mahadev Appa Rao and others) and
(2019) 11 SCC 771 (Gagandeep Singh Vs. State of Punjab and
others).
His further argument is that Rules of Game cannot be
changed after commencement of the game. He has submitted
that the selection process was initiated under the Rules of 2016,
therefore, the entire process is required to be completed under
the said Rules and in the midway the Rules of 2019 cannot be
applied. In support of his submission, he has placed reliance
upon the judgments in the cases reported in (1983) 3 SCC 284
(Y.V. Rangaiah and others Vs. J. Sreenivasa Rao and others),
(2003) 9 SCC 335/336 (State of Uttaranchal and others Vs.
Sidharth Srivastava and others), (1994) 5 SCC 450 (Para 14 &
15) (Union of India and others Vs. Tushar Ranjan Mohanty
and others) and (2010) 13 SCC 467 (State of Bihar and others
Vs. Mithilesh Kumar). He has further submitted that the Rules
of 2019 have not been made retrospective nor they can be
inferred to be retrospective and in this regard he has referred to
the Repeal and Savings clause of the Rules of 2019. In support
of his submission, he has placed reliance upon the judgments in
the cases reported in (2016) 4 SCC 179 (Richa Mishra Vs.
WP. No.4792/2020 and others
State of Chhattisgarh and others), (2009) 4 Guwahati Law
Report 507 (Abdul Hai Ahmed and others Vs. State of Assam
and others), (1990) 1 SCC 411 (P. Mahendran vs. State of
Karnataka) and (1987) 3 SCC 516 (Commissioner of Income
Tax, U.P. Vs. M/s Shah Sadiq and Sons). Arguing on the issue
of challenge to the vires of the Rules of 2019, he has made
limited submission that his grievance is only in respect of
retrospective application of the Rules, therefore, he is not
questioning the constitutional validity of the Rules.
Learned senior counsel for the petitioners has further
placed reliance upon the judgment in the case reported in (2006)
2 MPLJ 312 (Kanchan Saxena Vs. State of M.P. and another)
and has submitted that the right of the petitioners was
crystallized on the date of filing of the petitions which were
filed before expiry of 18 months. He has also placed reliance
upon the judgment of Supreme Court in the case reported in
(2013) SCC Online MP 6365 (Gopal Singh Gurjar Vs. State of
M.P. and others).
6. Shri Ashish Shroti, learned counsel for the respondent
High Court has placed reliance upon Rule 11 of the Rules of
2016 and has submitted that the requisition from District
Establishment is made by 30th of September in each recruitment
year for all the posts and has further referred to Rule 12(c) and
submitted that examination is conducted between January to
April every year and referring to Rule 2(r), he has submitted that
"year of recruitment" means year commencing from 1 st January
to 31st December and in this background, he has submitted that
an anomalous position was created as Rule 17(3) of the Rules of
2016 contained the provision about validity of the select list for
18 months whereas the recruitment was required to be made
WP. No.4792/2020 and others
every years, hence Rules of 2019 have been introduced and the
validity period of select list has been reduced to one year. He
has further submitted that there is no violation of fundamental
right, therefore there is no question of challenging the vires of
the Rules of 2019 and in this regard he has placed reliance upon
the judgment in the case reported in (2009) 2 SCC 1 (Mahmad
Husen Abdulrahim Kalota Shaikh Vs. Union of India and
others). He has also submitted that the Rules of 2019 have not
been applied retrospectively but these Rules have been applied
from the date they have come in force. He has also submitted
that by changing the duration of the validity of the select list,
there is no change in the Rules of Game and in this regard he
has further placed reliance upon the judgment in the case
reported in (2020) 2 SCC 173 (Anupal Singh and others Vs.
State of U.P.). Elaborating the meaning of the wait list, he has
placed reliance upon the judgment in the matter of Gujarat
State Dy. Executive Engineers' Association (supra). He has
also submitted that there is no provision in the Rules of 2016 or
2019 to prepare any waiting list and even otherwise the wait list
candidate has no right to be considered. In this regard, he has
placed reliance upon the judgment of Supreme Court in the case
of Anupal Singh and others (supra). Shri Shroti has also
placed reliance upon the judgments in the cases reported in
(2004) 2 SCC 681 (Bihar State Electricity Board Vs. Suresh
Prasad and others), (2013) 12 SCC 243 (Raj Rishi Mehra and
others Vs. State of Punjab and another) and (1997) 1 SCC 650
(Gajraj Singh and others Vs. State Transport Appellate
Tribunal and others).
7. We have heard the learned counsel for the parties and
perused the record.
WP. No.4792/2020 and others
8. Undisputedly, the advertisement for recruitment to the
post of Assistant Grade-III and other posts was issued on
02.06.2017. The result of the said examination was declared on
20th September, 2018. While declaring the result alongwith the
list of the selected candidates, a waiting list was also published.
The name of these petitioners finds place in the waiting list. At
the time of issuance of the advertisement and publication of the
select list and waiting list, the Madhya Pradesh District Court
Establishment (Recruitment and Conditions of Service) Rules,
2016 were in force. Sub-rule (3) of Rule 17 of the Rules of 2016
provides for the duration of validity of the list of successful
candidates and reads as under:
"17(3) Duration of validity of the final list of
successful candidate: The final list of the successful
candidates in the examination in any recruitment
year shall be valid upto 18 months from the date of
declaration of the final list, but shall become invalid
after declaring the results of next years
examination."
Subsequently same Rules were again published in official
Gazette on 28.06.2019 with certain modifications. These Rules
published on 28.06.2019 are referred to in this order as Rules of
2019. Sub-rule (3) of Rule 17 of the Rules of 2019 provides for
validity period of the select list and reads under:
"17(3) Validity period of the select list- The
select list of the successful candidates in the
examination in any recruitment year shall be valid
upto 12 months from the date of declaration of the
select list."
9. A bare perusal of the aforesaid Rules reveal that under the
Rules of 2016, the validity period of the select list was 18
months whereas in the Rules of 2019, the validity period of the
WP. No.4792/2020 and others
select list has been reduced to 12 months from the date of
declaration of the select list.
10. In the present case, the select list was declared on 20 th of
September, 2018, therefore, 12 months period was to be over on
20th September, 2019 and 18 months period was to be over on
20th March, 2020. The respondents in their reply have taken a
stand that the Rules of 2019 will apply and therefore the validity
period of the list expired on 20th September, 2019 and during the
validity of the select list, the waiting list of UR category was
cleared upto Sr. No.42 and after 20th September, 2019, the
waiting list cannot be given effect to.
11. In the above factual background, the first issue is as to
whether the petitioners who are wait list candidates have any
legitimate right of consideration for appointment on the post
falling vacant due to non-joining, resignation, etc. of the
selected candidates ?
12. A candidate in the waiting list, as per his position in the
list, has right to be considered for appointment if for any reason
the post falls vacant during the validity period of the list. Such a
right is not a vested right but it is only a right to be considered
for appointment. The appointing authority can deny
appointment for some justifiable reason to such a candidate. In
the matter of Gujarat State Dy. Executive Engineers'
Association(supra), the Hon'ble Supreme Court has explained
the meaning of waiting list by clarifying that a waiting list
prepared in service matters by the competent authority is a list
of eligible and qualified candidates who in order of merit are
placed below the last selected candidate. Such lists are prepared
either under the Rules or even otherwise mainly to ensure that
WP. No.4792/2020 and others
the working in the office does not suffer if the selected
candidates do not join for one or the other reason or the next
selection or examination is not held soon. A wait list candidate
has no vested right except the right to claim that he may be
appointed if for any reason one or other selected candidates does
not join. Supreme Court in the matter of Surinder Singh and
others (Supra) has held that a waiting list cannot be used as a
perennial source of recruitment for filling up the vacancy not
advertised. The candidate in the waiting list has no vested right
to be appointed except to the limited extent that when a
candidate selected against the existing vacancy does not join for
some reason and the waiting list is still operative.
13. In the matter of S. Gonvindaraju(Supra), Supreme Court
has held that once a candidate is selected and his name is
included in the select list for appointment in accordance with the
Regulation, he gets a right to be considered for appointment as
and when the vacancy arises. In the matter of R.S.
Mittal(Supra), the Hon'ble Supreme Court has further clarified
that although a person on the select panel has no vested right to
be appointed to the post for which he has been selected, the
appointing authority cannot ignore the select panel or on its
whims decline to make the appointment. When a person has
been selected by the Selection Board and there is a vacancy
which can be offered to him keeping in view his merit position
then ordinarily there is no justification for ignoring him for
appointment. There has to be a justifiable reason to decline to
appoint a person who is on the select panel.
14. Thus, from the aforesaid pronouncements, it is clear that if
name of a candidate is included in the select list, he has a right
to be considered for appointment but the appointment can be
WP. No.4792/2020 and others
declined for justifiable reason. In the present case, the name of
the petitioners were included in the waiting list, the respondents
have offered appointment to the candidate upto Sr. No.42 in the
waiting list of UR category. The posts are lying vacant against
which remaining wait listed candidates can be considered for
appointment.
15. In the above factual and legal backdrop, the next issue is
as to whether the respondents are justified in denying
appointment to the petitioners on the posts which are lying
vacant ?
16. The law in this regard is settled that the State must give
some justifiable and non-arbitrary reason for not filling up the
posts. It is not at the whims and fancies of the State to keep the
advertised post vacant when the select list is operative as the
same would run counter to the mandate of Article 14 of the
Constitution. Though the justification offered by the State is
normally not questioned by the Court but the justification must
be reasonable and not arbitrary or capricious.
17. The Supreme Court in the matter of Dinesh Kumar
Kashyap(Supra) in this regard has held that-
"6. Our country is governed by the rule of law.
Arbitrariness is an anathema to the rule of law. When an
employer invites applications for filling up a large
number of posts, a large number of unemployed youth
apply for the same. They spend time in filling the form
and pay the application fees. Thereafter, they spend time
to prepare for the examination. They spend time and
money to travel to the place where written test is held. If
they qualify the written test, they have to again travel to
appear for the interview and medical examination, etc.
Those who are successful and declared to be passed have
a reasonable expectation that they will be appointed. No
doubt, as pointed out above, this is not a vested right.
WP. No.4792/2020 and others
However, the State must give some justifiable, non-
arbitrary reason for not filling up the post. When the
employer is the State it is bound to act according to
Article 14 of the Constitution. It cannot without any
rhyme or reason decide not to fill up the post. The Courts
would normally not question the justification but the
justification must be reasonable and should not be an
arbitrary capricious or whimsical exercise of discretion
vested in the State. It is in the light of these principles
that we need to examine the contentions of SECR."
In the matter of East Coast Railway and another(Supra), the
Hon'ble Supreme Court has held that though a candidate who
has passed an examination or whose name appeared in the select
list does not have any indefeasible right to be appointed yet
appointment cannot be denied arbitrarily and the select list also
cannot be cancelled without giving proper justification. While
holding so, Hon'ble Supreme Court has placed reliance upon the
Constitution Bench judgment of the Supreme Court in the
matter Shankarsan Dash vs. Union of India reported in (1991)
3 SCC 47 wherein it is held that-
"7. It is not correct to say that if a number of vacancies
are notified for appointment and adequate number of
candidates are found fit, the successful candidates
acquire an indefeasible right to be appointed which
cannot be legitimately denied. Ordinarily the notification
merely amounts to an invitation to qualified candidates
to apply for recruitment and on their selection they do
not acquire any right to the post. Unless the relevant
recruitment rules so indicate, the State is under no legal
duty to fill up all or any of the vacancies. However, it
does not mean that the State has the licence of acting in
an arbitrary manner. The decision not to fill up the
vacancies has to be taken bona fide for appropriate
reasons. And if the vacancies or any of them are filled up,
the State is bound to respect the comparative merit of the
candidates, as reflected at the recruitment test, and no
discrimination can be permitted. This correct position
has been consistently followed by this Court, and we do
not find any discordant note in the decisions in State of
Haryana v. Subhash Chander Marwaha and Others,
[1974] 1 SCR 165; Miss Neelima Shangla v. State of
Haryana and Others, [1986] 4 SCC 268 and Jatendra
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Kumar and Others v. State of Punjab and Others, [1985]
1 SCR 899."
In the matter of Gagandeep Singh(Supra), the Hon'ble Supreme
Court has taken the view that though no candidate has vested
right for appointment but at the same time appointing authority
cannot frustrate intention behind and purpose of preparation of
select list. Next available candidate in the select list has
legitimate expectation for being considered for appointment
when the post falls vacant.
18. Thus, it is clear that the legitimate expectation of the
select list candidate for consideration for appointment when post
in question falls vacant cannot be denied by the Government by
acting arbitrarily or without offering any justifiable reason.
19. In the present case, only reason which has been offered by
the State Government for denying appointment to the remaining
wait list candidates is that the Rules of 2019 had come in force
in the meanwhile; therefore, the validity of the select list was
curtailed to 12 months from 18 months.
20. In view of the above position, the next issue which arises
for consideration of this Court is whether the respondents could
have changed the rules of the game after commencement of the
process of selection and curtail the validity period of select list ?
21. Once the norms of selection are declared on the
commencement of the selection process then those norms
cannot be changed and the right accrued to a candidate by virtue
of the original norms cannot be taken away. The Supreme Court
in the matter of Y.V. Rangaiya and others(Supra), in a case of
promotion where the Rules were changed in the midway, has
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taken the view that vacancies which occured prior to the
amended Rules would be governed by the old Rules and not by
the amended Rules. In the matter of Siddharth
Shrivastava(Supra), the Hon'ble Supreme Court has considered
the scope of power to make laws under Article 309 with
retrospective effect and has held that this power cannot be used
to nullify a right vested in a person under a Statute or the
Constitution. In the matter of Tushar Ranjan Mohanty and
others(Supra), in a case where norms for recruitment were
changed during the pendency of the selection process has held
that norms or Rules as existing on the date when the process of
selection begins will control such selection and any alteration to
such norms would not affect the continuing process unless
specifically the same were given retrospective effect. After
referring earlier judgments on the point, Hon'ble Supreme Court
in the case of Tushar Ranjan Mohanty and others(Supra) has
held that-
"14. The legislatures and the competent authority under
Article 309 of the Constitution of India have the power to
make laws with retrospective effect. This power, however,
cannot be used to justify the arbitrary, illegal or unconstitu-
tional acts of the Executive. When a person is deprived of an
accrued right vested in him under a statute or under the Con-
stitution and he successfully challenges the same in the court
of law, the legislature cannot render the said right and the re-
lief obtained nugatory by enacting retrospective legislation.
15. Respectfully following the law laid down by this Court in
the judgments referred to and quoted above, we are of the
view that the retrospective operation of the amended Rule 13
cannot be sustained. We are satisfied that the retrospective
amendment of Rule 13 of the Rules takes away the vested
rights of Mohanty and other general category candidates
senior to Respondents 2 to 9. We, therefore, declare amended
Rule 13 to the extent it has been made operative
retrospectively to be unreasonable, arbitrary and, as such,
violative of Articles 14 and 16 of the Constitution of India. We
strike down the retrospective operation of the rule. In the
view we have taken on the point it is not necessary to deal
with the other contentions raised by Mohanty."
WP. No.4792/2020 and others
22. Thus, from the aforesaid analysis, it is clear that once the
process of selection had commenced on the basis of the norms
prescribed under the Rules of 2016 then in normal
circumstances the changed norms relating to curtailing the
validity period of select list could not have been applied to the
pending process.
23. This takes us to the next issue as to whether the Rules of
2019 can be applied to the pending selection process to curtail
the validity period of the select list ?
24. To examine this issue, the Repeal and Savings Clause of
the Rules of 2019 needs to be considered which reads as under:
"37. Repeal and Savings-
All Rules, Orders, Instructions and Circulars corre-
sponding to these Rules, in force immediately before
the commencement of these Rules are hereby re-
pealed in respect of matters covered by these Rules:
Provided that any order made or action taken under
the rules so repealed shall be deemed to have been
made or taken under the corresponding provisions of
these rules."
The Rules of 2019 have not been made retrospective by any
express provision. The stand of the respondents is that the
Rules of 2019 have been applied from the date they have came
in force and therefore in terms of Rule 17(3) of the Rules of
2019, the validity period of the list has been curtailed to 12
months. Hon'ble Supreme Court in the case of Richa
Sharma(Supra) has considered the issue if the Rules specified
in the advertisement for recruitment process can be departed
from and new Rules can have the retrospective effect. In that
case, the recruitment had commenced under the Rules of 2000
and subsequently the Rules of 2005 were promulgated,
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therefore, the Hon'ble Supreme Court after considering the
similar proviso in the Repeal and Savings clause which exists in
the present case has held that -
18. The High Court held that the first and second requisitions to
commence recruitment process against the vacant seats to the
post of DSP were made when the 2000 Rules were in force. There-
fore, recruitment was rightly undertaken under the 2000 Rules.
The admitted facts are that the process of selection started before
the 2005 Rules were promulgated with the requisitions dated 27-9-
2004 and 26-3-2005 sent by the State Government to CPSC. At that
time, the 2000 Rules were in vogue. For this reason, even in the
requisition it was mentioned that appointments are to be made
under the 2000 Rules. Further, it is also an admitted fact that the
vacancies in question which were to be filled were for the period
prior to 2005. Such vacancies needed to be filled in as per those
Rules i.e. the 2000 Rules. This is patent legal position which can be
discerned from Y.V. Rangaiah v. J. Sreenivasa Rao [Y.V. Ranga-
iah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] . As
per the facts of that case a panel had to be prepared every year of
list of approved candidates for making appointments to the grade
of Sub-Registrar Grade II by transfer according to the old Rules.
However, the panel was not prepared in the year 1976 and the pe-
titioners were deprived of their right of being considered for pro-
motion. In the meanwhile, new Rules came into force. In this fac-
tual background, it was held that the vacancies which occurred
prior to the amended rules would be governed by the old Rules
and not by the amended rules. The judgment in B.L.
Gupta v. MCD [B.L. Gupta v. MCD, (1998) 9 SCC 223 : 1998 SCC
(L&S) 532] also summarises the legal position in this behalf. The
judgment in P. Ganeshwar Rao v. State of A.P. [P. Ganeshwar
Rao v. State of A.P., 1988 Supp SCC 740 : 1989 SCC (L&S) 123 :
(1988) 8 ATC 957] is also to the same effect. Para 9 of the judg-
ment laying down the aforesaid proposition of law, is reproduced
below: (B.L. Gupta case [B.L. Gupta v. MCD, (1998) 9 SCC 223 :
1998 SCC (L&S) 532] , SCC p. 226)
"9. When the statutory rules had been framed in 1978, the
vacancies had to be filled only according to the said Rules.
The Rules of 1995 have been held to be prospective by the
High Court [K.C. Sharma v. DESU, 1997 SCC OnLine Del
128 : (1997) 66 DLT 39] and in our opinion this was the cor-
rect conclusion. This being so, the question which arises is
whether the vacancies which had arisen earlier than 1995
can be filled as per the 1995 Rules. Our attention has been
drawn by Mr Mehta to a decision of this Court in N.T. Devin
Katti v. Karnataka Public Service Commission [N.T. Devin
Katti v. Karnataka Public Service Commission, (1990) 3 SCC
157 : 1990 SCC (L&S) 446 : (1990) 14 ATC 688] . In that case
after referring to the earlier decisions in Y.V. Rangaiah [Y.V.
Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC
(L&S) 382] , P. Ganeshwar Rao [P. Ganeshwar Rao v. State
WP. No.4792/2020 and others
of A.P., 1988 Supp SCC 740 : 1989 SCC (L&S) 123 : (1988) 8
ATC 957] and A.A. Calton v. Director of Education [A.A. Cal-
ton v. Director of Education, (1983) 3 SCC 33 : 1983 SCC
(L&S) 356] it was held by this Court that the vacancies
which had occurred prior to the amendment of the Rules
would be governed by the old Rules and not by the
amended Rules."
19. No doubt, under certain exceptional circumstances, the Gov-
ernment can take a conscious decision not to fill the vacancies un-
der the old Rules and, thus, there can be departure of the afore-
said general rule in exceptional cases. This legal precept was
recognised in Rajasthan Public Service Commission v. Kaila Kumar
Paliwal [Rajasthan Public Service Commission v. Kaila Kumar Pali-
wal, (2007) 10 SCC 260 : (2008) 1 SCC (L&S) 492] in the following
words:
"30. There is no quarrel over the proposition of law that
normal rule is that the vacancy prior to the new Rules
would be governed by the old Rules and not by the new
Rules. However, in the present case, we have already held
that the Government has taken conscious decision not to
fill the vacancy under the old Rules and that such decision
has been validly taken keeping in view the facts and cir-
cumstances of the case."
This position is reaffirmed in State of Punjab Vs. Arun Kumar Ag-
garwal, (2007)10 SCC 402.
20. However, as far as the present case is concerned, the State sent
the requisition specifically mentioning that the recruitment has to
be under the 2000 Rules. This was so provided even in the adver-
tisement. The appellant never challenged the advertisement and
contended that after the promulgation of the 2005 Rules the re-
cruitment should have been made under the 2005 Rules and not
the 2000 Rules. Therefore, the appellant is even precluded from ar-
guing that recruitment should have been made under the 2005
Rules.
21 Thus, we answer Question (a) by holding that recruitment was
rightly made as per the 2000 Rules.
The normal Rule is that the vacancies which arise prior to the
amended Rules would be governed by the unamended Rules and
in exceptional circumstances the Government can take a
conscious decision not to fill the vacancies under the old Rules.
In the present case, neither any exceptional circumstances are
shown nor any conscious decision of the respondents based on
such exceptional circumstances has been placed on record for
WP. No.4792/2020 and others
not filling the vacancies under the Rules of 2016. The Division
Bench of the Gauhati High Court in the case of Abdul Hai
Ahmed and others(Supra) has considered some what similar
position and has taken note of the similar though not identically
worded the Repeal and Savings clause and provision of the
Assam General Clauses Act (which is similar to M.P. General
Clauses Act, 1957) about the effect of Repeal and has held that -
"9. As the Rules of 2003 referred to earlier or rules framed under
article 309, which repealed the 1982 Rules, also made in exercise
of article 309 the effect of such repeal is to be decided in accor-
dance with the provisions of the Assam General Clauses Act, 1915.
It can be seen that section 6 seeks to protect the legality of the or-
ders and also the rights and privileges acquired during the subsis-
tence of the repealed enactment. It also preserves the obligations
or liabilities accrued during such subsistence. It also declared that
any legal proceeding or remedy, etc., initiated during the subsis-
tence of the repealed enactment would continue to be prosecuted
as if the repeal never took place. The true import of the proviso to
rule 32, in our opinion, is not to affect the operation of section 6 of
the General Clauses Act, 1897 or section 6 of the Assam General
Clauses Act, 1915, which is substantially similar to section 6 of the
General Clauses Act, 1897. The effect of section 6 of the Assam
General Clauses Act, in our view, is similar to the effect of section 6
of the General Clauses Act, 1897. No doubt, the Legislature while
repealing any law and replacing it by a new law can stipulate such
consequences as the Legislature deems fit shall follow such a re-
peal. If the Legislature is silent about the consequences of the re-
peal the provisions of the General Clauses Act, 1897 or the Assam
Act, 1915 automatically apply by virtue of the declaration con-
tained in section 6. If any provision is made by the repealing enact-
ment declaring the consequences of the repeal the language of
such a declaration should be examined in juxtaposition with the
language of section 6 of the General Clauses Act, 1897, Assam Act,
1915. Unless the language of the repealing enactment is found to
be plainly and expressly contrary to the scheme of section 6 of the
General Clauses Act, 1915 this court is not to infer a departure
from the principles enshrined under the General Clauses Act. Hav-
ing regard to the language of the proviso of rule 3 we are not able
to perceive any intention of the Legislature (in the present case the
Governor acting under article 309) to depart from the scheme of
section 6 of the General Clauses Act. In our view, the proviso is
more akin to the provisions under section 24 of the General
Clauses Act, 1897 or section 26 [ 26. Continuation of orders, etc.,
issued under enactments repealed and re-enacted. Where any en-
actment is repealed and re-enacted with or without modification,
then, unless it is otherwise expressly provided, any appointment,
notification, order, scheme, rule, form or bye-law, made or issued
under the repealed enactment, shall so far as it is not inconsistent
with the provisions re-enacted, continue in force, and be deemed
WP. No.4792/2020 and others
to have been made or issued under the provisions so re-enacted,
unless and until it is superseded by any appointment, notification,
order, scheme, rule, form, bye-law made or issued under the provi-
sions so re-enacted.] of the Assam General Clauses Act, 1915.
10. In the matter of recruitment in public service, it is settled law of
this Country that "Rules of the game cannot be changed in the
midstream". K Manjusree v. State of Andhra Pradesh, (2008) 3 SCC
512]. This is a principle enunciated by the Supreme Court in the
background of the requirements of articles 14 and 16 of the
Constitution of India as permitting the change of the rules of
recruitment midstream would enable the State to arbitrarily
eliminate some of the candidates who were otherwise eligible to
compete for the post for which the recruitment process is
undertaken or alternatively arbitrarily enable the State to enable
some of the candidates who were not otherwise eligible to
compete in accordance with the law as ir existed on the date when
the recruitment process was initiated. It is a principle which is
consistent with the general scheme of the consequences of repeal
of a law as envisaged under the provisions of the General Clauses
Act discussed above. In our view in the realm of public law and
more particularly in the context of employment under the State
the above referred judgments only declare that notwithstanding
the ability of the Legislature in general to alter the scheme of
section 6 of the General Clauses Act such an ability in the context
of recruitment in public employment is liable to be restricted in
view of the demands of articles 14 and 16 of the Constitution of
India. Therefore the submission of Mr. Sharma is set aside."
25. Hon'ble Supreme Court in the matter of P.
Mahendran(Supra) in a case where the Rule relating to
qualifications for appointment was amended during continuance
of the process of selection and the process was subsequently
completed under the old Rules, has held that the select list was
not vitiated on account of the amendment of the Rules.
Considering the issue of retrospectivity, it has been reiterated
that every Statute or Statutory Rules is prospective unless it is
expressly or by necessary implication made to have
retrospective effect. Considering this issue, the Hon'ble
Supreme Court has held that -
"5. It is well-settled rule of construction that every statute or
statutory Rule is prospective unless it is expressly or by
necessary implication made to have retrospective effect.
Unless there are words in the statute or in the Rules showing
the intention to affect existing rights the Rule must be held to
WP. No.4792/2020 and others
be prospective. If a Rule is expressed in language which is
fairly capable of either interpretation it ought to be construed
as prospective only. In the absence of any express provision
or necessary intendment the rule cannot be given
retrospective effect except in matter of procedure. The
amending Rule of 1987 do not contain any express provision
giving the amendment retrospective effect nor there is
anything therein showing the necessary intendment for
enforcing the Rule with retrospective effect. Since the
amending Rule was not retrospective, it could not adversely
affect the right of those candidates who were qualified for
selection and appointment on the date they applied for the
post, moreover as the process of selection had already
commenced when the amending Rules came into force. The
amended Rule could not affect the existing rights of those
candidates who were being considered for selection as they
possessed the requisite qualifications prescribed by the Rules
before its amendment moreover construction of amending
Rules should be made in a reasonable manner to avoid
unnecessary hardship to those who have no control over the
subject matter."
26. In the matter of M/s Shah Sadiq and Sons(Supra) while
considering the issue of vested and accrued right of set off under
the Income Tax Act and Section 6 of the General Clauses Act,
1957, the Hon'ble Supreme Court has held that accrued and
vested right acquired under a repealed Act which is neither
expressly saved nor expressly or impliedly taken away by the
repealing Act, would continue to be effective and enforceable.
27. Thus, we are of the opinion that the right which had
accrued to the select list candidates on the basis of their
placement in the select list/waiting list prepared under the Rules
of 2016 cannot be taken away by subsequent notification of the
Rules of 2019.
28. Counsel for the respondents has placed reliance upon the
judgment of the Supreme Court in the matter of Mohd. Hussain
wherein settled principles have been enumerated which are to be
kept in view while examining the constitutional validity of the
Repealing Act but in the present case, the petitioner has not
WP. No.4792/2020 and others
raised any argument about constitutional validity of the Rules of
2019 but has raised a limited issue in respect of applicability of
Rules of 2019 in the pending select list, hence this judgment is
of no help to the respondents. Counsel for the respondents has
also placed reliance upon the judgment of the Supreme Court in
the case of Anupal Singh and others(Supra) but in that case
there was a revised requisition notifying revised vacancies in
different categories of a particular subordinate service,
therefore, it was held valid since the same was only intended to
rectify wrongful calculation of number of vacancies in different
category and to comply with the requisite percentage of quota of
reservation in different category as per 1994 Act, hence the said
judgment stands on different footing. So far as the submission
of counsel for the respondents that there is no provision for
preparing the wait list is concerned, the same does not carry any
weight as in the present case not only the wait list has been
prepared but has also been acted upon by giving appointment
upto Sr. No.42 in the UR category of wait list. Counsel for the
respondents has also placed reliance upon the judgment of the
Supreme Court in the matter of Bihar State Electricity
Board(Supra) wherein it is held that in the absence of any
Statutory Rules to the contrary, the employer is not bound to
offer the unfilled vacancies to the candidates next below the
candidates selected for appointment but had not joined but the
respondents cannot be extended any benefit on the basis of the
said judgment, in view of the settled legal position that the
respondents cannot act arbitrarily and deny appointment to a
select list candidate without any justifiable reason. Even
otherwise, in that case, no wait list was prepared; therefore, it
was held that in the absence of the Statutory Rules to the
contrary, the employer is not bound to prepare the wait list in
addition to the panel of select list candidate, but, in the present
WP. No.4792/2020 and others
case, not only the wait list has been prepared but it has also been
acted upon. Counsel for the respondents has also placed
reliance upon the judgment of the Supreme Court in the case of
Raj Rishi Mehra and others(Supra), but, in that case, settled
position has been reiterated that a wait list candidate is not
entitled to appointment against unfilled post as of right. In that
case, in the meanwhile, the State Government had already
approved fresh recruitment and State Public Service
Commission had issued fresh advertisement, therefore, it stands
on different footing. Counsel for the respondents has also
placed reliance upon the judgment of the Supreme Court in the
matter of Gajraj Singh and others(Supra), but in that case also,
the Stage Permit was granted under the Repealed Act for a
period which was to expire after the commencement of the new
Act, therefore, while holding that grant of permit under the new
Act is a mere privilege and not a vested and accrued right, the
Hon'ble Supreme Court has held that the permit will lapse after
the expiry of the period for which it was initially granted unless
publication for renewal was pending under Section 58 of the
Repealed Act as on the date of commencement of the new Act.
29. Hence, in view of the above analysis, it is clear that since
the waiting list has been prepared by the respondents and the
appointment upto Sr. No.42 in UR category in the wait list has
been made, therefore, remaining candidates also have legitimate
expectation and right for consideration of their names for
appointment since posts have fallen vacant on account of non-
joining or resignation, etc. of selected candidates during the
validity of the select list. The respondents without any
justifiable reason acting in arbitrary manner cannot deny
consideration for such appointment.
WP. No.4792/2020 and others
30. In the present case, since the selection process had
commenced and selection list was prepared under the Rules of
2016, therefore, in terms of Rule 17(3) of the Rules of 2016, the
final list of successful candidates will be valid upto 18 months.
By virtue of Rule 17(3) of the Rules of 2019 which came into
force pending the selection process, the validity period of the
select list prepared under the old Rules cannot be curtailed from
18 months to 12 months because it is the settled principle that
the norms of process of selection cannot be changed by
changing the rules of the game in the middle of the selection
process. It is also worth noting that under the Rules of 2019
some of the eligibility conditions have been changed, therefore,
the respondents cannot selectively apply Rule 17(3) of the Rules
of 2019 relating to validity period of the select list ignoring that
if the Rules of 2019 are applied in toto then vested right of other
selected candidate will also be taken away due to change of the
eligibility condition. Hence, the decision of the respondents to
curtail the period of select list to 12 months cannot be sustained
and is hereby set aside.
31. The next issue as to whether the petitioners can be granted
any relief at this stage in view of the fact that subsequently 18
months period from the date of declaration of select list has
already expired ?
32. The 18 months was to expire on 20th of March, 2020. It is
worth noting that the present petition being W.P. No.4792/2020
was filed on 20th of February, 2020 when the select list was
valid. In the case of Ram Babu Koli(supra), the Hon'ble
Supreme Court has considered the issue if any right survives if
the list lapses during the pendency of the petition. In that case,
the writ petition was filed on the date when merit list was
WP. No.4792/2020 and others
operative and the Hon'ble Supreme Court placing reliance upon
the judgments in the matter of Surinder Singh and
others(Supra) and 1996(9) SCC 309 has held that the right was
subsisting on the date of filing of the writ petition and
accordingly allowed the writ petition.
33. In view of the above analysis and having regard to the
basic principles of "actus curiae neminem gravabit" i.e. the act
of the Court shall prejudice no one, the respondents are directed
to exclude the period from the date of filing of the petition till
the date of this judgment for calculating 18 months validity
period of the select list.
34. Having regard to the aforesaid factual and legal position,
we are of the opinion that the petitioners have right to be
considered for appointment on the posts which are unfilled due
to non-joining, resignation, etc. of the selected candidates.
Hence, the present writ petition is disposed of by directing the
respondents to consider the names of the petitioners and other
wait list candidates as per their position in the waiting list in
accordance with law before the list lapses.
(PRAKASH SHRIVASTAVA) (VISHAL DHAGAT)
JUDGE JUDGE
YS
Digitally signed by YOGESH KUMAR
SHRIVASTAVA
Date: 2021.09.11 11:10:21 +05'30'
