Md. Abdul Ahad Azim v. Union of India & Ors.

13. Even otherwise, we find no merit in the present petition and the same is, accordingly, dismissed on merits as well as for the delay.”

3. The aforesaid judgment was taken in an appeal before the Supreme Court by the petitioner in Civil Appeal No. 3452/2023, whereby the Supreme Court has set aside the order dated April 27, 2022, by stating as under: “1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 27.04.2022 passed by the High court of Delhi at New Delhi in Writ Petition (C) No. 6679 of 2022, by which the High Court has dismissed the said Writ Petition, the original writ petitioner has preferred the present appeal.

3. Having heard Shri Pal1av Sisodiya, learned senior Advocate, appearing for the appellant and Ms. Madhavi Divan, learned ASG appearing for the respondent-Union of India and having gone through the impugned judgment and order passed by the High Court dismissing the writ petition, we are at pains to note that the manner in which the High court has dismissed the writ petition is not appreciable at all. The High Court has not at all considered the main grievance on merits, namely, whether the subsequent recruitment rules/procedure shall be applicable with respect to the earlier recruitment process or not. The High Court has observed that as such recruitment process of 2008 was cancelled and none of the candidates selected from the said recruitment process were given appointment and therefore, the appellants lacks merit also cannot be accepted. That was the exact grievance before the High Court that the recruitment process of 2008 has been cancelled illegally and by applying the subsequent regulations. Therefore, the High Court ought to have considered the matter on merits. As the High court has not at all considered the matter on merits, we set aside the order passed by the High Court dismissing the writ petition and remand the matter back to the High Court to decide and dispose of the same afresh in accordance with law and on merits.

4. In view of the above and for the reasons stated above, the present appeal succeeds in part. The impugned judgment and order passed by the High court dismissing the writ petition is hereby quashed and set aside. The matter is remitted back to the High court to decide and dispose of the writ petition in accordance with law and on merits and on grounds which were raised/urged before the High court. The said exercise be completed by the High Court within a period of 3 months from the date of receipt of the present order. The present Appeal stands allowed in terms of the above.” (emphasis supplied)

4. The facts as noted from the petition are that in the month of October, 2008, an advertisement was issued in a local daily Hindi Newspaper of Kashmir for recruitment of various trades of enrolled Followers (Group „D‟ posts) in BSF/respondents‟ Force, stipulating the eligibility criteria for the concerned posts. On October 20, 2008, the recruitment process was conducted in terms of the advertisement at STC, BSF, Srinagar. The petitioner also participated in the said recruitment process and undertook various tests including physical test, trade test and medical test, which were all cleared by him.

5. On November 2, 2008, the result of the recruitment process was declared and the same was communicated by the respondents by putting up the merit list of 39 successful candidates. The petitioner was selected to the Group „D‟ post of Washerman, i.e., enrolled „Followers‟ along with 38 other candidates for other trades from amongst more than 5000 candidates. In fact, it is the case of the petitioner that he topped the merit list. It was only sometime thereafter, the petitioner and the other selected candidates were informed that they have been recruited and the joining letter would be sent soon. However, it appears that no appointment letter was issued to the petitioner. It was only in the year 2010 that the petitioner was informed by the Director General, Headquarter, CGO Complex, Delhi that his case is under consideration of the Ministry of Home Affairs („MHA‟, for short). Between years 2014-2016, the petitioner approached the Recruitment Section, Srinagar, Frontier Headquarter, but did not get any cogent information. It is his case that he also met many officers in 2016 alongwith his father, but again did not get any proper information.

6. On December 23, 2016, the petitioner filed a representation before the Headquarter 68 Battalion, BSF, stating therein, as the petitioner was selected for the post of Washerman in the recruitment drive which was held in the year 2008, he should be given the appointment. Between January 9, 2017 and March 9, 2017, the representations of the petitioner were responded by the respondents wherein it was stated that as the Recruitment Board in which the petitioner has been selected was formed by the Frontier Headquarter, BSF, Kashmir, all information and documents related to the said recruitment process would be available and dealt with by them and as such, the petitioner was asked to approach the said office.

7. It appears that somewhere on August 30, 2018, a letter („impugned letter‟) was issued by the respondents denying the issuance of joining letter to the petitioner on the ground that there has been a subsequent change in the Recruitment Rules of 2010, wherein, the eligibility conditions have been modified and under which the petitioner does not qualify.

8. The petitioner along with the other three persons filed a writ petition being W.P.(C) 1102/2019, which was dismissed as withdrawn on February 4, 2019 with liberty to approach the Court again by filing a proper petition explaining the delay in approaching the Court.

9. It is under the aforesaid circumstances, the present petition has been remitted by the Supreme Court for fresh adjudication on the merit of the case.

10. On the other hand, the case of the respondents primarily is that an advertisement was issued for filling up 58 vacancies of various trades of enrolled „Followers‟ (Group 'D') posts in BSF through open recruitment prepared by Frontier HQ, BSF, Srinagar for candidates who were bona fide domiciles of certain districts of Srinagar and Leh and Ladakh. The wards (son) of the BSF personnel who were deployed under Kashmir Frontier were also made eligible. The same was forwarded to Directorate of Advertising and Visual Publicity („DAVP‟, for short), Ministry of Information and Broadcasting for publication in employment news and leading newspapers. On publication of vacancies in employment news and newspapers, a board of officers was detailed by Frontier HQ, BSF, Srinagar to conduct the said recruitment. The recruitment was conducted by the detailed Board of officers from October 20, 2008 onwards at STC, BSF, Srinagar. The Board of officers submitted its proceedings to IG, BSF, Srinagar Frontier on November 29, 2008. The Petitioner had also appeared in the above recruitment process for the post of Followers (Washerman) being ward‟s (son) of a serving BSF personnel under Blood Relations quota. The petitioner qualified various stages of recruitment i.e. preliminary screening, preliminary medical, verification of documents, physical efficiency test („PET‟, for short), interview to test general awareness and mental alertness, trade test and medical test. Thus, he was in the zone of consideration for selection with other 38 candidates of various trades. The name of petitioner figured at serial No. 127 of board proceedings under OBC category. In the meantime, the recommendations of the 6th Central Pay Commission („6th CPC‟, for short) were implemented by Government of India, w.e.f., September 1,

2008. The Commission in its report inter alia recommended to abolish the cadre of the „Followers‟ and further recommended that recruitment in the grade of „Followers‟ should cease immediately. The respondents decided to keep the recruitment process concerned herein i.e., of Group 'D' enrolled „Followers‟ in abeyance and further sought clarification from the Ministry of Home Affairs. Thereafter, the Government of India vide order dated October 29, 2009, conveyed its decision to cease the recruitment in the grade of enrolled „Followers‟ (Group 'D') in Central Para-military Forces („CPMF‟, for short) immediately and placed the existing „Followers‟ in Group 'C' in Pay Band-I with Grade Pay of ₹2,000/- and further to designate them as Constable (Tradesman), Constable (Cook) etc. as the case may be after giving proper training to the existing Group 'D' enrolled „Followers‟ to make them combatised and on successful completion of such training, they be absorbed in the Grade of Combatant constables against regular vacancies. The lowest qualification prescribed by the 6th CPC for entry level into Government service was matriculation / ITI.

11. It is also stated that the respondents, keeping in view the instructions of MHA, directed all recruitment agencies / frontiers vide their letter dated December 1, 2009 that on finalization of new Recruitment Rules („RRs‟, for short) which were under preparation by the respondents, candidates who fulfill the requisite qualification / criteria as per revised RRs only be called to draw fresh board proceedings after conducting re-medical examination as per eligibility criteria of 6th CPC and then getting it approved by competent authority.

12. The respondents vide communication dated July 16, 2010 asked the Recruitment Agencies / Frontiers to review the cases in respect of candidates who were qualified as per the eligibility criteria of revised RRs of Constable (Tradesman) approved by the Government and accordingly, intimate the candidates who are found eligible for appointment to the post of Constable (Tradesman).

13. The MHA issued revised RRs for Constable (Tradesman) on August 3, 2010. Accordingly, the Board examined all documents pertaining to the qualified candidates in accordance with Ministry‟s order dated November 29, 2009 and revised RRs for the post of Constable (Tradesman) in BSF, but none of the candidates were found eligible for appointment to the post of Constable (Tradesman) as per revised RRs. Insofar as, the petitioner is concerned, it is stated that the petitioner was not found eligible on account of the reasons that (i) he had not produced the ITI / Experience Certificate and (ii) his height is less by 0.[5] Cms.

14. It is also stated that the petitioner has no vested right under the law to be selected and appointed but only to be considered as per the prevalent RRs. Reference in this regard is made to the latest Judgment of the Supreme Court in the case of State of Himachal Pradesh v. Raj Kumar & Others (2023) 3 SCC 773, to state that it is held in the said case that vacancies which occurred prior to the amendment of rules would be governed by old rules and not by amended rules does not reflect correct position of law governing services under the Union and State.

15. Whereas, the submission of Ms. Sangeeta Chandra, learned counsel appearing for the petitioner is that it is an admitted position that the MHA had issued the revised RRs for Constable (Tradesman) on August 3, 2010. The same clearly mentions that they supersede the Rules of 2001 (Rules under which the recruitment concerned herein was initiated) “except as respect things done or omitted to be done before such supersession”. She submitted that this aspect has not been considered by the respondents at all. Hence, the respondents have erroneously taken a decision that the petitioner was to be considered for selection to the post of Constable (Washerman). The post of Constable (Washerman) exists under the new RRs of 2010, which are not applicable to the case of the petitioner. According to her, the petitioner is entitled to be considered under the Rules of 2001, which were in vogue at the time when the petitioner was selected to the post of enrolled „Followers‟ (Group „D‟- Washerman). She submitted that the rules of the games cannot be changed, once the entire process of selection is not only over but has also been communicated to the petitioner. She qualified her submission by stating that the recruitment process under question was successfully conducted in October, 2008 i.e., at the time when the Rules of 2001 were in vogue. Moreover, the petitioner has been denied the issuance of joining letter on the ground that the eligibility criteria had changed in the subsequent Rules of 2010, which according to her cannot apply to the recruitment process in respect of which, advertisement was already issued and the entire recruitment process has been held and completed. She further submitted that there cannot be a dispute that the Recruitment Rules are always prospective unless specified to the contrary. In fact, the revision in new Recruitment Rules i.e., the Rules of 2010 came into effect after the completion of recruitment process in which the petitioner was successful. It is thus clear that the selection process was to be regulated by the then existing Recruitment Rules i.e., the Rules of 2001 and any amendment to the Recruitment Rules pending the issuance of joining letter would not affect the validity of selection already made. She also submitted that 6th CPC had not recommended the abolition of Group „D‟ posts, rather the recommendation was that the Group „D‟ posts be merged / upgraded along with Group „C‟ posts on the same pay scale.

16. Though it has been stated in the writ petition and as also noted from above, the case of the petitioner is that his case is governed by the old Rules of 2001 and the same stands superseded by the new Rules of

2010. We note from the new Rules of 2010 i.e., Border Security Force Constable (Tradesman) Group „C‟ Posts Recruitment Rules, 2010, itself, that it is the Rules of 2000, i.e., Border Security Force (Tradesman Group „C‟ and Enrolled followers Group „D‟ Posts) Recruitment Rules, 2000, which have been superseded. It follows, it is the Rules of 2000 which governs the case of the petitioner and not the Rules of 2001. It also appears, the reference to the Rules of 2001 is an error. In fact no Rules of 2001 have been annexed by the petitioner. So henceforth, the Rules of 2001 shall be referred as Rules of 2000.

17. It is her case that the ground on which the petitioner has been denied the issuance of joining letter i.e., the petitioner had not produced any ITI / Experience Certificate, is totally irrelevant as the petitioner had applied for Group „D‟ Post of Washerman and has already cleared the trade test for the said post. Even the height requirement in the subsequent Rules of 2010 cannot take away the right of the petitioner to get the joining letter as he qualified the height criteria under the old Rules of 2000 which were in force at the time when the recruitment process was conducted and the selection was made on the basis of merit. She submitted that the respondents‟ Force cannot by subsequent merging of Group „D‟ posts with Group „C‟ posts take the higher eligibility / criteria qualification into consideration and reject, on that basis, the candidates including the petitioner who successfully qualified under the old Rules of 2000.

18. She stated that the reliance placed by the respondents on the judgment of the Supreme Court in the case of Raj Kumar & Others (supra) does not lay down a blanket rule, rather it is clear from the perusal of the judgment that the same was on specific facts of the case as arose for consideration in that petition.

19. Suffice to state that Mr. D. S. Vohra, learned SPC, appearing for the respondents has primarily reiterated the submissions as noted by us in the aforesaid paragraphs.

ANALYSIS

20. Having heard the learned counsel for the parties, the short issue which arises for consideration is whether the respondents were justified in issuing the impugned order declaring the petitioner ineligible for recruitment under the Rules of 2010 for the post of Constable (Tradesmen) (Group 'C' Post) despite the recruitment process was initiated and culminated into the issuance of the merit list as per the old Rules of 2000.

21. There is no dispute to the fact that the recruitment process to the post of enrolled „Followers‟ (Group „D‟) was initiated around October, 2008, the result of the same was declared on November 2, 2008 and subsequently, a merit list was prepared by the respondents. It is thereafter that the Government of India vide order dated October 29, 2009 conveyed its decision to cease the recruitment in the Grade of enrolled Followers (Group „D‟) in CPMFs and further designated them as Constable (Tradesman) comprising Constable (Cook), Constable (WM) etc. The said decision was conveyed by the respondents to recruitment agencies / frontiers vide their letter dated December 1, 2009 that on finalization of new Recruitment Rules which were under preparation by the respondents, the candidates who fulfill the requisite qualification / criteria as per revised RRs of 2010, only be called to draw fresh board proceedings after conducting re-medical examination as per eligibility criteria of 6th CPC and getting it approved by competent authority. In other words, the aforesaid stand of the respondents depicts that the selection process initiated by the respondents in the year 2008 for Followers (Group „D‟) posts need not be implemented.

22. Whereas it is the submission of Ms. Sangeeta Chandra, learned counsel appearing for the petitioner that the selection process in the present case being complete with the issuance of the final merit list, any subsequent communication of 2009, i.e., of October 29, 2009 shall have no bearing on the recruitment process which was initiated in the year

2008.

23. Suffice to state that this submission of Ms. Chandra is appealing inasmuch as, though a decision was taken by the Government to abolish Group „D‟ posts to upgrade the same with Group „C‟ posts, on the basis of the recommendation of the 6th CPC, which was implemented on September 1, 2008, the said decision is made effective only by framing of the new Recruitment Rules i.e., the Rules of 2010, which were finally issued on August 3, 2010.

24. Therefore, a related question would arise as to whether the recruitment process which was initiated and culminated in terms of the old Rules of 2000, needs to be scrapped / not given effect to before the advent of the new Rules of 2010.

25. Ms. Chandra is justified in relying upon the saving contemplated under the Rules of 2010, framed on August 3, 2010. She stated, the said Rules shall be in supersession of the Rules of 2000, „except as respect of things done or omitted to be done before such supersession‟.

26. In other words, it is her submission that the supersession of the old Rules of 2000, shall exclude the things done or omitted to be done before such supersession, under the old Rules. So, it follows that whatever has been done or omitted to have been done before such supersession, i.e., August 3, 2010, under the Rules of 2000, the same are not superseded, especially, when the recruitment process under question was completed before August 3, 2010, and the result thereof and merit list for the same, had already been declared and prepared. Hence, the said selection cannot stand superseded by the Rules of 2010.

27. We agree with this submission of Ms. Chandra, as the Supreme Court comprising of three Hon‟ble Judges in the case of P. Mahendran and Ors. v. State of Karnataka and Ors., MANU/SC/0417/1990, in paragraphs 4, 5 and 12, has held as under:

28. Similarly in the latest judgment of the Supreme Court in the case of Pallavi v. Union of India (UOI) and Ors., MANU/SC/0953/2023, wherein in paragraphs 14, 15, 16 and 17 it has been held as under:

29. It is also pertinent to refer here the judgment of the Supreme Court in the case of Manish Kumar v. Union of India (UOI) and Ors., MANU/SC/0029/2021, with regard to the scope and ambit of a saving clause in a given statute, wherein, in paragraph 298, it has been held as under:-

298. While on the ambit of the saving Clause we may notice Bansidhar v. State of Rajasthan MANU/SC/0057/1989: (1989) 2 SCC 557 while dealing with the fact of saving Clause in a repealing statute the court held as follows:

28. A saving provision in a repealing statute is not exhaustive of the rights and obligations so saved or the rights that survive the repeal. It is observed by this Court in IT Commissioner v. Shah Sadiq & Sons [MANU/SC/0351/1987: (1987) 3 SCC 516: 1987 SCC (Tax) 270: AIR 1987 SC 1217, 1221]: (SCC p. 524, para 15)... In other words whatever rights are expressly saved by the 'savings' provision stand saved. But, that does not mean that rights which are not saved by the 'savings' provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6(c), General Clauses Act, 1897.... We agree with the High Court that the scheme of the 1973 Act does not manifest an intention contrary to, and inconsistent with, the saving of the repealed provisions of Section 5(6-A) and Chapter III-B of "1955 Act" so far as pending cases are concerned and that the rights accrued and liabilities incurred under the old law are not effaced. Appellant's contention (a) is, in our opinion, insubstantial. Re Contention (b)"

30. Similarly in the case of Thyssen Stahlunion Gmbh v. Steel Authority of India Ltd., MANU/SC/0652/1999, specifically in paragraph 32, it has been held as under:

31. Having said that, one of the submissions of Mr. Vohra is that even the selection process initiated under the Rules of 2000 and the merit list prepared thereof would not give a right to the petitioner to be appointed to the post in question. The said submission though looks appealing on a first blush, but surely the petitioner had the legitimate expectation to be appointed to post in question as the selection process with respect to the same had already been initiated and a merit list thereof was already prepared and as such, the recruitment process initiated under the Rules of 2000 shall not be vitiated with the advent of the new rules, i.e., the Rules of 2010.

32. In this regard, it is important to highlight the latest judgment of the Constitution Bench of the Supreme Court in the case of Sivanandan CT and Others v. High Court of Kerala and Others, (2023) 11 S.C.R. 674 wherein, on the aspect of legitimate expectation, it has been held as under:-

43. The underlying basis for the application of the doctrine of legitimate expectation has expanded and evolved to include the principles of good administration. Since citizens repose their trust in the state, the actions and policies of the state give rise to legitimate expectations that the state will adhere to its assurance or past practice by acting in a consistent, transparent, and predictable manner. The principles of good administration require that the decisions of public authorities must withstand the test of consistency, transparency, and predictability to avoid being regarded as arbitrary and therefore violative of Article 14.

44. From the above discussion, it is evident that the doctrine of substantive legitimate expectation is entrenched in Indian administrative law subject to the limitations on its applicability in given factual situations. The development of Indian jurisprudence is keeping in line with the developments in the common law. The doctrine of substantive legitimate expectation can be successfully invoked by individuals to claim substantive benefits or entitlements based on an existing promise or practice of a public authority. However, it is important to clarify that the doctrine of legitimate expectation cannot serve as an independent basis for judicial review of decisions taken by public authorities. Such a limitation is now well recognized in Indian jurisprudence considering the fact that a legitimate expectation is not a legal right. It is merely an expectation to avail a benefit or relief based on an existing promise or practice. Although the decision by a public authority to deny legitimate expectation may be termed as arbitrary, unfair, or abuse of power, the validity of the decision itself can only be questioned on established principles of equality and nonarbitrariness under Article 14. In a nutshell, an individual who claims a benefit or entitlement based on the doctrine of legitimate expectation has to establish: (i) the legitimacy of the expectation; and (ii) that the denial of the legitimate expectation led to the violation of Article

14.

46. Rule 2(c)(iii) of the 1961 Rules provided at the material time that 25% of the posts of District and Sessions Judges should be filled by direct recruitment from the Bar on the basis of aggregate marks/grade obtained in the written examination and the viva-voce conducted by the High Court. The scheme of examination specifically stipulates that there shall be no cut off marks for the viva voce. Further, the notification dated 30 September 2015 also stipulates that the merit list of successful candidates would be prepared on the basis of the total marks obtained in the written examination and the viva voce.

47. The statutory rule coupled with the scheme of examination and the 2015 examination notification would have generated an expectation in the petitioners that the merit list of selected candidates will be drawn on the basis of the aggregate of total marks received in the written examination and the viva voce. Moreover, the petitioners would have expected no minimum cut-off for the viva voce in view of the express stipulation in the scheme of examination. Both the above expectations of the petitioners are legitimate as they are based on the sanction of statutory rules, scheme of examination, and the 2015 examination notification issued by the High Court. Thus, the High Court lawfully committed itself to preparing a merit list of successful candidates on the basis of the total marks obtained in the written examination and the viva voce. ii. Whether the High Court has acted unlawfully in relation to its commitment?

51. Under the unamended 1961 Rules, the High Court was expected to draw up the merit list of selected candidates based on the aggregate marks secured by the candidates in the written examination and the viva voce, without any requirement of a minimum cut-off for the viva voce. Thus, the decision of the Administrative Committee to depart from the expected course of preparing the merit list of the selected candidates is contrary to the unamended 1961 Rules. It is also important to highlight that the requirement of a minimum cut-off for the viva voce was introduced after the viva voce was conducted. It is manifest that the petitioners had no notice that such a requirement would be introduced for the viva voce examination. We are of the opinion that the decision of High Court is unfair to the petitioners and amounts to an arbitrary exercise of power.

52. The High Court‟s decision also fails to satisfy the test of consistency and predictability as it contravenes the established practice. The High Court did not impose the requirement of a minimum cut-off for the viva voce for the selections to the post of District and Sessions Judges for 2013 and 2014. Although the High Court‟s justification, when analyzed on its own terms, is compelling, it is not grounded in legality. The High Court‟s decision to apply a minimum cut-off for the viva voce frustrated the substantive legitimate expectation of the petitioners. Since the decision of the High Court is legally untenable and fails on the touchstone of fairness, consistency, and predictability, we hold that such a course of action is arbitrary and violative of Article 14. iii. What should this Court do?

55. The following are our conclusions in view of the above discussions:

(i) The principles of good administration require that the decisions of public authorities must withstand the test of consistency, transparency, and predictability to avoid being termed as arbitrary and violative of Article 14;

(ii) An individual who claims a benefit or entitlement based on the doctrine of substantive legitimate expectation has to establish the following: (i) the legitimacy of the expectation; and that (ii) the denial of the legitimate expectation led to a violation of Article 14;

(iii) A public authority must objectively demonstrate by placing relevant material before the court that its decision was in the public interest to frustrate a claim of legitimate expectation;

(iv) The decision of the High Court of Kerala to apply a minimum cut-off to the viva voce examination is contrary to Rule 2(c)(iii) of the 1961 Rules.

(v) The High Court‟s decision to apply the minimum cutoff marks for the viva voce frustrates the substantive legitimate expectation of the petitioners. The decision is arbitrary and violative of Article 14.

(vi) In terms of relief, we hold that it would be contrary to the public interest to direct the induction of the petitioners into the Higher Judicial Service after the lapse of more than six years. Candidates who have been selected nearly six years ago cannot be unseated. They were all qualified and have been serving the district judiciary of the state. Unseating them at this stage would be contrary to public interest. To induct the petitioners would be to bring in new candidates in preference to those who are holding judicial office for a length of time. To deprive the state and its citizens of the benefit of these experienced judicial officers at a senior position would not be in public interest.”

33. From the above, it is clear that the doctrine of legitimate expectation is clearly applicable in the facts of this case, inasmuch as, the selection process having been culminated into the merit list, not giving effect to the same shall be arbitrary and violative of Article 14 of the Constitution of India, 1950. It cannot be denied that the petitioner had legitimately expected that with the culmination of the selection process, he shall be appointed to the post concerned herein. It also follows that it is a case where during the midst of the selection process the respondents decided to discontinue the same on the recommendations of the 6th CPC. The respondents‟ decision to cease the selection process surely frustrates the claim of the petitioner of legitimate expectation. Surely, the petitioner despite having been found selected for the post in question, the denial of appointment as legitimately expected by the petitioner in the facts of the present case, shall be violative of Article 14 of the Constitution of India, 1950.

34. Insofar as reliance placed by Mr. Vohra on the judgment of the Supreme Court in the case of Raj Kumar and Ors. (supra) in support of his submissions is concerned, suffice to state, that the said judgment shall not be applicable in the facts of this case, especially, when this Court is concerned with an issue of appointment made under the direct recruitment quota, wherein the process of appointment had already been initiated with the issuance of the advertisement / employment notice. That apart, the process of appointment has also been carried out till the stage of issuance of the merit list where name of the petitioner has been included. Whereas, in the judgment on which reliance has been placed by Mr.Vohra, the Supreme Court was considering the right of an employee in the organisation to be considered for promotion to the next higher post against the vacancies which were in existence under the old rules concerned therein. It was in that context, the Supreme Court had inter alia held that such an employee has no right outside the rules governing the service under the State as his service is in the nature of status, a hallmark of the same is, the need of the State to unilaterally alter the rules to subserve the public interest. More particularly, in the said case, the 2006 Rules (new rules, concerned therein), governing the services of the respondents therein came into force immediately after they were notified, which also, did not contain any provision to enable the respondents therein to be considered under the Rules of 1966, i.e., old rules. Therefore, in the facts of the present case, the said judgment shall have no applicability.

35. Mr. Vohra has also relied upon the judgment of the Supreme Court in the case of Shankarsan Dash v. Union of India (1991) 3 SCC 47, wherein it is held that ordinarily a 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. At the same time, it is also held that the State does not have the license of acting in an arbitrary manner. We have already held in paragraph 33 above that the respondents by not giving effect to the merit list and not appointing the petitioner to the post concerned herein have acted in an arbitrary manner. Hence, the said judgment shall also not help the case of the petitioner.

36. We are conscious that it is a settled position of law that even candidates selected for appointment have no right to appointment and it is open to the Government at a subsequent date not to fill up the posts. It can also resort to fresh selection on revised criteria, as held by the Supreme Court in the case of Jai Singh Dalal and Others v. State of Haryana and Others, 1993 Supp (2) SCC 600, which has also been relied upon by Mr. Vohra.

37. In the said case, the selection process concerned therein had not been completed and before it could be completed, the State Government reviewed its earlier decision and decided to revise the eligibility criteria for appointment and in such circumstances, it was held that the petitioners therein had no right to claim that the selection process once started must be completed. In the present case, as already noted above, the petitioner has already been selected as his name finds mentioned in the merit list. The only step left in the recruitment process was the issuance of the joining letter to the petitioner. Therefore, apart from our finding on the legitimate expectation of the petitioner, the said judgment of the Supreme Court is also distinguishable on facts.

38. Now, the question arises as to what relief needs to be granted to the petitioner. We are conscious of the fact that the selection in question was initiated in the year 2008 and 15 years have gone by. It is also a fact that in terms of the recommendation of the 6th CPC in paragraph 7.19.45, it has been recommended that all the posts in CPMFs should be combatised like the position existing in the Defence Forces and also the fact that all posts of „Followers‟ / other Group D posts in CPMFs have been converted into Group-C posts and be placed in PB-I with grade pay of ₹2000/-.

39. It is also an admitted fact that the selection process which was initiated in the year 2008, was for Group-D posts, which do not exist as of today, but the same were in existence, when the selection process was initiated. Against, the order passed by this Court dismissing the petition, the petitioner had approached the Supreme Court. The Supreme Court directed this Court to decide the issue on merit insofar as the plea of the petitioner that his appointment to the post in question should be governed by the old Rules of 2000 instead of the new Rules of 2010. As such, the only relief in the facts of this case that can be granted to the petitioner is that he shall be given the appointment w.e.f., the date of culmination of the selection process as a „Follower‟ i.e., from October 2008. The appointment shall be made in the erstwhile Group-D Posts/ „Followers‟, and thereafter, he shall be given proper training to make him combatised. On successful completion of such training, he should be absorbed in the grade of combatant Constable (Washerman). It is clarified that the petitioner shall not be entitled to any monetary benefits. His seniority and pay fixation (on notional basis) shall relate back to the month of October 2008.

40. The present writ petition is disposed of in the above terms. There is no order as to Costs. CM APPL. 28072/2023 Dismissed as infructuous.

V. KAMESWAR RAO, J

SAURABH BANERJEE, J MARCH 11, 2024