Telangana High Court

The Deputy General Manager Hr, ... vs Marelly Raji Reddy, on 17 December, 2021

Bench: Satish Chandra Sharma, N.Tukaramji

  THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                AND
           THE HON'BLE SRI JUSTICE N. TUKARAMJI


         WRIT APPEAL Nos.270, 277 and 286 of 2020


COMMON JUDGMENT:   (Per the Hon'ble the Chief Justice Satish Chandra Sharma)




      Regard being had to the controversy involved in the

aforesaid cases, they were heard together and are being

decided by a common judgment.

      The facts of W.A.No.270 of 2020 are reproduced as

under:

      W.A.No.270 of 2020 is arising out of an order dated

17.07.2020 passed in W.P.No.13222 of 2017 which was

decided along with W.P.Nos.10252 and 46897 of 2018 by

a common order, by which the learned Single Judge has

set aside the advertisement inviting applications for

Group "D" posts dated 09.03.2017. The facts of the case

reveal that the appellant No.2/National Thermal Power

Corporation Limited (NTPC), a Company registered under

the Companies Act, 1956, and owned and controlled by

the   Government   of     India,        is    engaged           in     building

infrastructure in the field of power generation and a Unit

of the Company was established at Ramagundam in

Peddapalli District, State of Telangana, which is a Super

Thermal Power Station with a capacity of 2600 MW. For
                                 2




establishment of the said Unit, land was acquired after

paying due compensation and a policy was also framed

by the Company to grant appointment to the land

oustees. The Company, in the light of the policy decision,

issued     an   advertisement       on      15.05.2015    inviting

applications for 25 posts of Junior Mazdoor in "WO"

grade, which is subject matter of the present appeal and

the land oustees of Ramagundam Super Thermal Power

Station were eligible for appointment to the said posts.

At   the   relevant   point   of    time,    the   procedure   for

appointing the Junior Mazdoor was only by way of an

interview, subject to verification of credentials and call

letters were issued on 15.12.2015 directing all the

candidates to appear in the process of interview to be

scheduled from 26.12.2015 to 31.12.2015.              The NTPC

issued as many as 339 call letters to the candidates, out

of which 330 candidates attended the interview. Another

important aspect of the case is that while the process of

recruitment was going on, the Hon'ble Prime Minister

announced discontinuance of interview for selection of

junior level posts on 15.08.2015 and directions were

issued     to   the     Central      Government          and    its

instrumentalities to implement the said policy.                The

Committee of Secretaries constituted by the Government
                                3




of India to implement the policy met on 14.09.2015 and

recommended that interview be dispensed with for

appointment to all Group "C" and Group "D" posts and

non-gazetted posts in the Group "B" category and it was

also recommended that the process of doing away with

the interview has to be completed by 31.12.2015.          All

Ministries/Authorities were directed to implement the

policy decision of the Government of India and it was

communicated by the Ministry of Personnel, Public

Grievances and Pensions (Department of Personnel and

Training) vide its Office Memorandum dated 09.10.2015.

The Ministry of Heavy Industries & Public Enterprises,

Department of Public Enterprises, has also issued

directions on 14.12.2016 to the Central Public Sector

Enterprises, including the NTPC, to revise the entire

mechanism of recruitment in the light of the policy

decision of Government of India and to complete the

process by 31.12.2015. While all this was going on, as

interviews   were    already       held   pursuant   to   the

advertisement dated 15.05.2015, a writ petition was

preferred before this Court i.e., W.P.No.26043 of 2016,

with a specific prayer that the process of recruitment by

the NTPC, pursuant to the Notification of the year 2015

be set aside, as it was contrary to the Notifications issued
                                      4




by the Government of India and the NTPC be directed to

undertake the selection process in accordance with the

relevant instructions of the concerned Ministry after

dispensing with the process of interview.                     The writ

petition preferred in the matter by one Chepyala Aravind

Rao   i.e.,      W.P.No.26043       of    2016,    was     decided      on

14.12.2016 and the operative portion of the order passed

by the learned Single Judge in paragraphs 42 to 47 is

reproduced as under:


      "42.    In my considered opinion, the petitioner was
      entitled to approach the Court in these circumstances
      on the basis of apprehension about illegalities and
      irregularities which he claimed to have occurred in the
      course of the interview process and he cannot be non-
      suited on the ground that only after his candidature
      was unsuccessful in the selection process, he chose to
      challenge the selection process. This is because the
      results themselves have not been declared.

      43.     The other reason given by NTPC is that if
      interview mode was abandoned and the recruitment
      criteria     changed    midstream,    it   would   result    in
      litigation and that it was decided therefore to complete
      the selection process before 31.12.2015. This reason
      also does not explain why it was so difficult to
      withdraw      the     recruitment   notification   No.2/2015
      issued on 15.05.2015 in the light of the instructions
      received from the Union of India in that regard even by
      14.12.2015 followed up by the instructions contained
      in     the   office    memorandum       dt.29.12.2015       and
      31.12.2015.      In fact, according to NTPC initially its
      Corporate Office thought of conducting the selection
                                5




process in January, 2016 and addressed letters to the
Union of India that it would conduct only written test
in tune with the directions given by the Union of India,
but later changed its mind and proceeded with the
interview process. But this was done without obtaining
any    specific   permission       or    clearance    from    the
administrative ministry of the NTPC i.e., the Ministry
of Power and also from the Secretary, Department of
Personnel and Training, Government of India about
the change in their plan from conducting written test
as communicated by the NTPC to the Government of
India. It in fact, preponed the interview dates to the
last week of December, 2015 and went ahead with the
interviews.

44.    For all the aforesaid reasons, the decision of
NTPC to proceed with the conduct of interview between
26.12.2015 and 31.12.2015 in spite of instructions
received from the 1st respondent / Union of India not

to conduct interview for non-executive posts like the Junior Mazdoor (W0) grade is arbitrary, illegal and violative of Article 14 of the Constitution of India.

45. Accordingly, the Writ Petition is allowed and the recruitment process undertaken by the 3rd respondent pursuant to the employment notification No.2/2015 dt.15.05.2015 issued by the 7th respondent by conducting oral interview only is declared as illegal, arbitrary and the entire selection process pursuant to the said notification is set aside. The respondent is directed to undertake a fresh selection process strictly in accordance with Office Memorandum F.No. DPE - GM - 01/0001/2015 - GM - FTS - 4857 dt.14.12.2015 of 1st respondent and Office Memorandum No.39020/01/2013-Estt(B)-Part dt.29.12.2015 of the 2nd respondent. No order as to costs.

46. Consequently, the WVMP.No.3942 of 2016 in WP.No.26043 of 2016, and WVMP.(SR).No.207426 of 2016 in WP.No.26043 of 2016 are dismissed.

47. As a sequel, miscellaneous petitions pending if any in this Writ Petition, shall stand closed."

Meaning thereby, the learned Single Judge has

declared the process of recruitment based upon interview

as void, as it was not in consonance with the Office

Memorandum issued by the Government of India dated

14.12.2015. A writ appeal was preferred in the matter

i.e., W.A.No.138 of 2017, and the judgment delivered by

the learned Single Judge was set aside and a liberty was

granted to the NTPC to take a decision whether the

appointment should be made pursuant to the selection

process or whether a fresh selection process should be

undertaken. The operative portion of the judgment

delivered in W.A.No.138 of 2017 on 31.01.2017 is

reproduced as under:

"The 4th respondent is a company incorporates under the Companies Act, 1956, and is a legal entity distinct from the Government of India. The mode and manner in which appointments to posts in the 4th respondent is required to be made are governed by the Rules made by the 4th respondent. In fact, the O.M.

dated 14.12.2015 itself requires the 4th respondent to amend its Rules to bring it in conformity with the requirement of dispensing with interviews and conducting selection to group 'C' and 'D' posts only by way of a written examination. The time stipulated in

the said O.M, for NTPC to complete the exercise, was by 31.12.2015. Interviews, pursuant to the notification dated 15.05.2015, were held between 26.12.2015 and 31.12.2015 even before the time stipulated for NTPC to amend its Rules expired on 31.12.2015. It is also necessary to note that NTPC has not amended its Rules till date.

Since the selection process, for appointment to the posts of Junior Mazdoors in NTPC, is governed by Rules prescribed in this regard by the 4th respondent itself, the selection process initiated by them, for appointment of land oustees as Junior Mazdoors, cannot be faulted on the basis of the Office Memorandum dated 14.12.2015. Even otherwise, as held by the Supreme Court, in K. Manjusree v. State of Andhra Pradesh ((2008) 3 SCC 512), the selection process cannot be changed midstream, and the amended Rules cannot be applied to employment notifications issued prior to the date on which the amended rules came into force. Viewed from any angle, the selection process could not have been interdicted on the basis of the Government of India O.M. dated 14.12.2015. On this short ground, the order under appeal is liable to be, and is accordingly, set aside.

While the submission of Sri V. Ravi Kiran Rao, that several irregularities were committed in the selection process, cannot be brushed aside, it must also be borne in mind that the mere fact that interviews have been held does not confer any right on the participating candidates to claim appointment nor does it obligate NTPC to make appointments to the posts for which interviews were conducted. Whether appointments should be made pursuant to the selection process, or whether a fresh selection process should be undertaken, are all matters for the 4th

respondent to decide. Needless to state that the action taken by NTPC in this regard can always be subjected to challenge, by any person aggrieved, in subsequent legal proceedings.

Subject to the aforesaid observations, the Writ Appeal is allowed. However, in the circumstances, without costs. Miscellaneous petitions, if any, shall stand closed. No costs."

The NTPC, after the judgment was delivered, has

amended the recruitment rules on 03.03.2017 by issuing

Corporate HR Circular No.825/2017, and the same is

reproduced as under:-

"NTPC LIMITED CORPORATE HR DIVISION (HR-POLICY GROUP) Ref: No: 01:HR-Policy:7(41) 03.03.2017

CORPORATE HR CIRCULAR NO.825/2017

Sub: Amendment in NTPC Recruitment Policy & Procedure: Regd.

1.0 It has been decided to amend Clause 13.5 of NTPC Recruitment Policy & Procedure as under: Clause Existing Provision Revised provision No.

13.5 After the applications After the applications are finally screened, are finally screened, HR Department will HR Department will prepare a final list of prepare a final list of eligible candidates in eligible candidates in order to merit based order of merit based on on the criteria the criteria determined determined in the in the course of earlier course of earlier scrutiny and other scrutiny and other relevant factors relevant factors keeping in view the keeping in view the reserved vacancies and reserved vacancies the special relaxation and the special for candidates relaxation for belonging to Scheduled candidates belonging Castes and Scheduled

to Scheduled Castes Tribes etc. and this and Scheduled Tribes short list after approval etc. and this short list by the appointing after approval by the authority or the officer appointing authority to whom powers in this or the officer to whom behalf are delegated powers in this behalf will form the basis for are delegated will form candidates being called the basis for for selection test candidates being and/or interview. called for selection test and/or interview.

Note:

                                               Subsequent          to
                                               issuance of DOPT OM
                                               No.39020/ 01/2013-
                                               Estt (B) -Part, dated
                                               29.12.2015,       the
                                               requirement         of
                                               Interviews         for
                                               recruitment at Junior
                                               Level Posts (Group-B,
                                               C & D) has been
                                               discontinued.

2.0 The above amendment shall come into force with immediate effect.

3.0 All other terms and conditions of NTPC Recruitment Policy & Procedure shall remain unaltered.

4.0 This issues with the approval of Competent Authority.

(D.S.Rao) GM (HR)"

The NTPC has thereafter scrapped the entire

process of selection, which was solely based upon

interview, by issuing an order dated 09.03.2017 and a

fresh advertisement was issued on 12.03.2017 inviting

applications afresh from land oustees and in order to

ensure that the candidates do not become age barred,

age relaxation was granted to such candidates. The

issuance of advertisement dated 12.03.2017 gave a cause

of action to those persons who were interviewed and writ

petitions were preferred again before this Court. The

learned Single Judge has allowed the writ petitions,

meaning thereby, directing the NTPC to complete the

process of selection based upon the advertisement dated

15.05.2015 i.e., to fill up the posts exclusively based on

the interview, which was made earlier. Paragraphs 12,

13 and 14 of the common order passed by the learned

Single Judge in W.P.No.13222 of 2017 and batch, dated

17.07.2020, is reproduced as under:

"12. This Court, having heard the rival contentions of the learned counsel for the parties, is of the considered view that the NTPC has issued a Notification on 16.05.2015 and in the said Notification, it was categorically stated that the selections should be held solely based on the oral interview and subsequent thereto, the Central Government had issued Office Memorandums dated 09.10.2015, 14.12.2015 and 29.12.2015, wherein, the Central Government has taken a policy decision to dispense with the conducting of oral interviews for Group "C" and Group "D" posts and these office Memorandums were issued subsequent to the Notification issued by the NTPC and the Division Bench of this Court, relying on a judgment rendered by the Hon'ble Supreme Court in case of K.Manjusree v. State of Andhra Pradesh ((2008) 3 SCC 512) held that the selection process cannot be changed midstream and the amended Rules cannot be applied to employment notifications issued prior to the date on which the amended Rules came into force. On that count, allowed the appeal with a specific observation, "viewed from any angle, the selection process could not have been interdicted on the

basis of the Government of India O.M. dated 14.12.2015. On this short ground, the order under appeal is liable to be, and is accordingly, set aside".

However, liberty was given by the Hon'ble Division Bench to the NTPC to finalise the selection process or take up fresh selections if there were any irregularities. The NTPC could have cancelled the selections on the ground of adequate/several irregularities in the selections made pursuant to Notification dated 16.05.2015, but the NTPC has cancelled the earlier selections made pursuant to Notification dated 16.05.2015 solely on the ground that the NTPC has amended the recruitment Rules vide orders dated 03.03.2017 and the earlier selections made pursuant to the Notification dated 16.05.2015 are contrary to Office Memorandums dated 09.10.2015, 14.12.2015 and 29.12.2015, as the selections were made solely based on oral interviews, whereas the above said Office Memorandums have dispensed with oral interviews for Group "C" and Group "D" categories of posts. The action of NTPC in cancelling the earlier selections made pursuant to the Notification dated 16.05.2015 runs contrary to the specific observations made by the Hon'ble Division Bench of this Court, which reads as follows :

"Since the selection process, for appointment to the posts of Junior Mazdoors in NTPC, is governed by Rules prescribed in this regard by the 4th respondent itself, the selection process initiated by them, for appointment of land oustees as Junior Mazdoors, cannot be faulted on the basis of the Office Memorandum dated 14.12.2015. Even otherwise, as held by the Supreme Court, in K.Manjusree v. State of Andhra Pradesh ((2008) 3 SCC 512), the selection process cannot be changed midstream, and the amended Rules cannot be applied to employment notifications issued prior to the date on which the amended rules came into force. Viewed from any angle, the selection process could not have been interdicted on the basis of the Government of India O.M. dated 14.12.2015. On this short

ground, the order under appeal is liable to be, and is accordingly, set aside."

13. Therefore, the NTPC could not have cancelled the selections on the ground which was held to be bad by the Hon'ble Division Bench in the order dated 31.01.2017 in W.A.No.138 of 2017. Therefore, the impugned Notification dated 09.03.2017 issued by the NTPC is liable to be set aside and is accordingly set aside. The decision of NTPC to cancel the earlier selections made pursuant to the Notification dated 16.05.2015 is also liable to be set aside as it is contrary to the findings of the Hon'ble Division Bench in W.A.No.138 of 2017, dated 31.01.2017, and accordingly, it is set aside. The NTPC is directed to conclude the selection process initiated pursuant to the Notification dated 16.05.2015 within a reasonable period of time, preferably within a period of Three (03) months from the date of receipt of a copy of this order. With these observations, W.P.No.13222 of 2017 is allowed.

14. In view of the above findings, no further orders are needed to be specifically passed in W.P.Nos.10252 of 2018 and 46897 of 2018, which shall stand disposed of in terms of the aforesaid findings.

No order as to costs.

Pending miscellaneous applications, if any, shall stand closed."

Learned counsel for the respondent has vehemently

argued before this Court that the earlier Division Bench

judgment granted a liberty to the NTPC to scrap the

process of selection. However, it could have been

scrapped only in case some irregularities took place in

the process of selection. He has drawn the attention of

this Court towards the last paragraph of the judgment of

the Division Bench. The last paragraph of the judgment

of the Division Bench refers to the submission of Sri

V.Ravi Kiran Rao, who was counsel for the workman

before the Division Bench and therefore, it was always

open for the NTPC to take a decision in accordance with

law in the matter of selection in the matter of recruitment

which commenced pursuant to the Notification dated

15.05.2015.

Learned counsel for the respondent has placed

reliance upon the judgment delivered in the case of

Sachin Kumar and others v. Delhi Subordinate

Service Selection Board1. Paragraph 35 of the said

judgment is reproduced as under:

"35. In deciding this batch of SLPs, we need not reinvent the wheel. Over the last five decades, several decisions of this Court have dealt with the fundamental issue of when the process of an examination can stand vitiated. Essentially, the answer to the issue turns upon whether the irregularities in the process have taken place at a systemic level so as to vitiate the sanctity of the process. There are cases which border upon or cross over into the domain of fraud as a result of which the credibility and legitimacy of the process is denuded.

This constitutes one end of the spectrum where the authority conducting the examination or convening the

(2021) 4 SCC 631

selection process comes to the conclusion that as a result of supervening event or circumstances, the process has lost its legitimacy, leaving no option but to cancel it in its entirety. Where a decision along those lines is taken, it does not turn upon a fact-finding exercise into individual acts involving the use of malpractices or unfair means. Where a recourse to unfair means has taken place on a systemic scale, it may be difficult to segregate the tainted from the untainted participants in the process. Large-scale irregularities including those which have the effect of denying equal access to similarly circumstanced candidates are suggestive of a malaise which has eroded the credibility of the process. At the other end of the spectrum are cases where some of the participants in the process who appear at the examination or selection test are guilty of irregularities. In such a case, it may well be possible to segregate persons who are guilty of wrongdoing from others who have adhered to the rules and to exclude the former from the process. In such a case, those who are innocent of wrongdoing should not pay a price for those who are actually found to be involved in irregularities. By segregating the wrongdoers, the selection of the untainted candidates can be allowed to pass muster by taking the selection process to its logical conclusion. This is not a mere matter of administrative procedure but as a principle of service jurisprudence it finds embodiment in the constitutional duty by which public bodies have to act fairly and reasonably. A fair and reasonable process of selection to posts subject to the norm of equality of opportunity under Article 16(1) is a constitutional requirement. A fair and reasonable process is a fundamental requirement of Article 14 as well. Where the recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities,

the entire process becomes illegitimate. On the other hand, where it is possible to segregate persons who have indulged in malpractices and to penalise them for their wrongdoing, it would be unfair to impose the burden of their wrongdoing on those who are free from taint. To treat the innocent and the wrongdoers equally by subjecting the former to the consequence of the cancellation of the entire process would be contrary to Article 14 because unequals would then be treated equally. The requirement that a public body must act in fair and reasonable terms animates the entire process of selection. The decisions of the recruiting body are hence subject to judicial control subject to the settled principle that the recruiting authority must have a measure of discretion to take decisions in accordance with law which are best suited to preserve the sanctity of the process. Now it is in the backdrop of these principles, that it becomes appropriate to advert to the precedents of this Court which hold the field."

The aforesaid case was a case of fraud/irregularities

committed in the process of selection and the Apex Court

has held that where it is possible to segregate persons

who have indulged in malpractices and to penalise them

for their wrongdoing, it would be unfair to impose the

burden of their wrongdoing on those who are free from

taint. To treat the innocent and the wrongdoers equally

by subjecting the former to the consequence of the

cancellation of the entire process would be contrary to

Article 14 because unequals would then be treated

equally. In the aforesaid backdrop, the judgment was

delivered by the Hon'ble Supreme Court.

In the present case, there is no such contingency

involved and the issue herein is whether the NTPC was

justified in issuing a fresh advertisement, as in the earlier

process, the NTPC was proceeding ahead only with the

process of interview and the Government of India took

the policy decision to scrap the process of interview in

respect of Group "D" posts and to recruit persons only

based upon the written examination and therefore, the

aforesaid judgment relied upon is distinguishable on

facts.

Much has been argued before this Court placing

reliance upon the judgment delivered in the case of

Y.V.Rangaiah and others v. J.Sreenivasa Rao and

others2. Learned counsel for the respondent has drawn

the attention of this Court towards paragraph 9 of the

said judgment. It was a case where the recruitment rules

were amended. There was a delay in preparing a panel

and on account of amendment, promotional chances of

the eligible Lower Division Clerks were adversely effected.

The persons who were eligible for promotion keeping in

view the pre-amended rules, were subjected to loss and

(1983) 3 SCC 284

their chances for consideration of promotion was done

away on account of the amendment and in that

backdrop, the judgment was delivered holding that the

posts which were vacant prior to the amended rules

would be governed by the old rules and not by the

amended rules.

There can be no dispute in respect of the fact that

the process of selection, which is based upon written

test, is more transparent than the process of selection

made exclusively on the basis of interview and therefore,

the Hon'ble Prime Minister of the country, in order to

ensure transparency in the system, has introduced a

policy in the matter of appointment to the posts of Group

"C" and Group "D" and has announced the policy

decision of Government of India on 15.08.2015 and the

same was communicated by the Ministry of Power,

Government of India, to all the Public Sector

Undertakings. Therefore, this Court also does not find

any reason to interfere with the subsequent

advertisement keeping in view the amendment under the

recruitment rules, which provide for selection for the

posts in question by way of written test alone.

Reliance has also been placed upon the judgment in

the case of Kulwant Singh and others v. Daya Ram and

others3 by the learned counsel for the respondent.

Paragraphs 38 to 43 and 54 of the said decision are

reproduced as under:

"38. Keeping the aforesaid proposition of law in mind we shall proceed to deal with various other facets which have been canvassed before us, for we feel it is not a case which can be shut down by holding that the order dated 8-1-1990 [Mewa Singh v. Chandigarh Admn., OA No. 137/CH/89, order dated 8-1-1990 (Tri)] having gone unassailed, the doors of justice from all quarters get closed. The Tribunal in Acchhar Chand case [Acchhar Chand v. Union of India, OA No. 510/CH/88, order dated 28-9-1988 (Tri)] , which was decided on 28-9-1988, had strictly gone by the principles stated in Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382 : AIR 1983 SC 852] by directing to prepare a fresh list of constables for sending to Lower School Course at Police Training College, Phillaur, in accordance with the pre-amended Rule as far as vacancies of Head Constables which had come into existence prior to the Notification dated 17-6-1988. It had further clarified that it is open to the respondent to act in accordance with the amended Rule in respect of the vacancies/posts of Head Constables which may have occurred subsequent to coming into force of the amended Rule. Submission of Mr Gupta is that the said order was not only in accord with Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382 : AIR 1983 SC 852] but also in consonance with the principles stated in P.

Ganeshwar Rao [P. Ganeshwar Rao v. State of A.P., 1988 Supp SCC 740 : 1989 SCC (L&S) 123 : (1988) 8 ATC 957] , R. Dayal [State of Rajasthan v. R. Dayal,

(2015) 3 SCC 177

(1997) 10 SCC 419 : 1997 SCC (L&S) 1631] , B.L. Gupta [B.L. Gupta v. MCD, (1998) 9 SCC 223 : 1998 SCC (L&S) 532] and Arjun Singh Rathore [Arjun Singh Rathore v. B.N. Chaturvedi, (2007) 11 SCC 605 : (2008) 2 SCC (L&S) 387] .

39. In P. Ganeshwar Rao [P. Ganeshwar Rao v. State of A.P., 1988 Supp SCC 740 : 1989 SCC (L&S) 123 : (1988) 8 ATC 957] the Court reproduced a passage from Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382 : AIR 1983 SC 852] and observed that it appositely applied to the facts of the said case. The question that emerged for consideration in the said case was whether the amendment made on 28-4-1980 to the Special Rules in the said case applied only to the vacancies that arose after the date on which the amendment came into force or whether it applied to the vacancies which had arisen before the said date also. Interpreting the Rule the Court observed that the amendment on 28-4-1980 did not apply to the vacancies that had arisen prior to the date of amendment. The ratio of the said decision is that the vacancies that had arisen after the amendment would be governed by the amended Rule and the vacancies that had arisen prior to the amendment would be governed by the unamended Rule.

40. In R. Dayal [State of Rajasthan v. R. Dayal, (1997) 10 SCC 419 : 1997 SCC (L&S) 1631] the Court was considering the effect of Rule 24-A of the Rajasthan Service of Engineers (Building and Roads Branch) Rules, 1954 (as amended). It pertained to the vacancies which were filled up prior to the amended Rule. Question arose whether the vacancies were prepared to be filled up under the amended Rule or unamended Rule. On behalf of the respondents therein

reliance was placed on Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382 : AIR 1983 SC 852] . The Court, appreciating the factual scenario and the rule position, came to hold as follows: (R. Dayal case [State of Rajasthan v. R. Dayal, (1997) 10 SCC 419 : 1997 SCC (L&S) 1631] , SCC p. 422, para 8) "8. ... But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore. This Court has considered the similar question in para 9 of the judgment above-cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose."

41. In B.L. Gupta [B.L. Gupta v. MCD, (1998) 9 SCC 223 : 1998 SCC (L&S) 532] the Court reiterated the principle stated in Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382 : AIR 1983 SC 852] , P. Ganeshwar Rao [P. Ganeshwar Rao v. State of A.P., 1988 Supp SCC 740 : 1989 SCC (L&S) 123 : (1988) 8 ATC 957] and A.A. Calton v. Director of Education [(1983) 3 SCC 33 : 1983 SCC (L&S) 356] wherein it had been held that the vacancies which had occurred prior to the amendment of rules were governed by the old rules and not by the amended rules. In Arjun Singh Rathore [Arjun Singh Rathore v. B.N. Chaturvedi, (2007) 11 SCC 605 : (2008) 2 SCC (L&S) 387] the views stated in Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382 : AIR 1983 SC 852]

and R. Dayal [State of Rajasthan v. R. Dayal, (1997) 10 SCC 419 : 1997 SCC (L&S) 1631] were reiterated.

42. The reference to the aforesaid proposition of law makes it vivid that the decision rendered by the Tribunal in Acchhar Chand case [Acchhar Chand v. Union of India, OA No. 510/CH/88, order dated 28-9-1988 (Tri)] was in accord with the precedent of this Court and, in fact, the Tribunal clearly meant that.

43. In Mewa Singh case [Mewa Singh v. Chandigarh Admn., OA No. 137/CH/89, order dated 8-1-1990 (Tri)] , the Tribunal opined that the selection of the constables for the promotional course who were already in service before the amendment of 1988 would be made in accordance with the criterion laid down in the pre-amended Rule as contained in the Notification dated 4-3-1982. This is contrary to the decision in Acchhar Chand case [Acchhar Chand v. Union of India, OA No. 510/CH/88, order dated 28-9-1988 (Tri)] . That apart, the Tribunal also held that the confirmed employees had a vested right to be considered under the pre-amended Rule. In the said case the respondents were not arrayed as parties. True it is, by virtue of the interim direction they appeared in the examination irrespective of seniority and were promoted as Head Constables on the basis of marks secured in the test and they were treated senior to the present appellants. On being approached by the present appellants in OA No. 1401/CH of 1990 the Tribunal by its order dated 23-9-1998 quashed the order dated 18-12-1989 whereby the constables were sent for training on the basis of written test and the consequent order dated 28-12-1989 by which they were promoted as Head Constables, and directed for rearrangement of seniority list of the applicants and

the respondents according to their basic seniority in the rank of constables.

...

54. In the case at hand, the earlier order of the Tribunal was legally sound. In the second case the Tribunal, though seems to have relied upon Acchhar Chand case [Acchhar Chand v. Union of India, OA No. 510/CH/88, order dated 28-9-1988 (Tri)] , has totally misunderstood the ratio laid down therein. That apart, the Tribunal had not kept itself alive to the essential facts, namely, publication of results, selection of candidates and the impact it would have on their rights if they are not made parties. Considering all the aspects in a cumulative manner it can be stated with certitude that if that order is allowed to reign it would have disastrous impact on justice and would irrefragably tantamount to miscarriage of justice. We have already opined that the High Court, while dealing with the matter under Articles 226 and 227 of the Constitution, could (sic not) have ignored the order dated 8-1-1990 [Mewa Singh v. Chandigarh Admn., OA No. 137/CH/89, order dated 8-1-1990 (Tri)] . Despite the said conclusion, we are also expressing our view by invoking jurisdiction under Article 142(1) of the Constitution that non-affirmance of the order of the High Court by accepting the order dated 8-1-1990 [Mewa Singh v. Chandigarh Admn., OA No. 137/CH/89, order dated 8-1-1990 (Tri)] would be constructing the pillar of injustice. The decision which is a sanctuary of errors could not have been allowed to gain the benefit of sanctuary of protection and acceptance. That would be travesty of justice. Hence, the said order deserved quashment and the High Court has rightly done so."

The aforesaid case was a case of promotion of

Constables to Head Constables. Earlier the criteria

under the Punjab Police Rules, 1934, was to the effect

that Constables would be sent to promotional course on

the basis of seniority-cum-merit, while the amended Rule

13.7 as amended on 17.06.1988 provided a criteria of

merit-cum-seniority for sending Constables to

promotional course. In those circumstances, the

judgment was delivered by the Hon'ble Supreme Court.

In the present case, no such contingency is involved.

The NTPC is going ahead with the process of

selection for the post of Group "D" employees based upon