Holding

When service rules are amended to abolish a cadre and create a new one, the earlier advertisement for the abolished posts becomes infructuous and recruitment must proceed under the amended rules for the new posts.

Summary

The Rajasthan Public Service Commission advertised 23 Assistant Director (Junior) posts in 1993, but the State Government halted recruitment to amend the service rules. The 1995 amendment abolished the Assistant Director (Junior) cadre and created a new Marketing Officer cadre with different qualifications. The original advertisement became void because the posts no longer existed, and the fresh advertisement for 26 Marketing Officer vacancies was proper. The Supreme Court held that once a cadre is abolished by amendment, the earlier recruitment process cannot continue, and the Commission may recruit under the new rules. Consequently, the writ petition challenging the fresh recruitment was dismissed and the High Court’s decision was set aside. The appeals were allowed, confirming the Single Judge’s dismissal of the writ petition.

Issues considered

The amendment of the Rajasthan State Agricultural Marketing Service Rules abolished the Assistant Director (Junior) cadre and created a new Marketing Officer cadre.
Whether the 1993 advertisement for Assistant Director (Junior) could be continued after the amendment.
Whether the Rajasthan Public Service Commission erred in issuing a fresh advertisement for Marketing Officer posts.
Whether the respondent had any vested right to be considered under the old advertisement.

Legislation cited

Constitution of Indias. Article 309

Subjects

service lawcadre abolitionrecruitmentvacancyamendment of service rulespublic service commissionvested rightdirect recruitmentqualification change

Judgment

RAJASTHAN PUBLIC SERVICE COMMISSION A
v.
CHANDAN RAM AND ANR.

FEBRUARY 26, 1998

[S.B. MAJMUDAR AND V.N. KHARE, JJ.] B

Service Law :

Rajasthan State Agricultural Marketing Service Rules, 1986: Rule 4.

Cadre-Abolition of-Creation ofnew cadre-Existing entries in Service
c
Rules in respect of "Assistant Director (Senior)" and "Assistant Director
(Junior)" substituted by new entries of "Assistant Director" and ''Marketing
Officer" respectively-Service Rules further amended changing eligibility
conditions for the post of Marketing Officer-Public Service Commission
invited applications for Assistant Director (Junior) based on old Service D
Rules-However, recruitment was stopped pending amendment of Service
Rules-Fresh advertisement issued for filling up vacancies including old
vacancies for the post of A1arketing Officer in accordance with amended
Service Rules-Held: No appointment could be made for the posts ofAssistant
Director (Junior) since the cadre stood abolished-Commission's decision to E
fill up vacancies ofMarketing Officer, including the vacancies of the abolished
cadre, on the basis of amended Service Rules, upheld.

The respondent applied for one of the 23 posts of Assistant Director
(Junior) pursuant to the advertisement issued by the appellant-Commission.
Before the last date for submission of the applications the State Government F
directed the Commission not to go ahead with the said recruitment as the
relevant service rules were being amended. Subsequently, the State
Government issued a notification amending relevant entries in the Schedule
to the Rajasthan State Agricultural Marketing Service Rules, 1986 whereby
the posts of "Assistant Director (Senior)" and "Assistant Director (Junior)"
were respectively substituted by the posts of "Assistant Director" and G
"Marketing Officer". By another notification issued in April 1995 the
eligibility conditions for appointment as Marketing Officer were also changed
which prescribed an additional qualification of M.Sc. (Agriculture) with
specialisation in Agriculture Economics/Agriculture, Marketing. Thereafter,
the appellant-Commission issued a fresh advertisement for filling up 26
posts of Marketing Officers. H
1099
llOO SUPREME COURT REPORTS [1998) l S.C.R.

A The res1iondent applied once again pursuant to the fresh advertisement
and was asked to appear before the appellant-Commission for a screening
test. Instead of appearing for the screening test the respondent filed a writ
petition before the High Court contending that the respondent was entitled
to he considered on the basis of the earlier Service Rules and not on the
basis of the amended Service Rules of 1995. The Single Judge of the High
B Cou!1 dismissed the said petition. However, the Division Bench allowed the
petition on the ground that old vacancies had to be filled up on the basis of
earlier Service Rules and not on the basis of the amended Service Rules.
Hence this ap1ieal.

C Allowing the a1i1ieal, this Court

HELD : I. I. A conjoint reading of the two ll1Jlending notifications with
the erstwhile Schedule entries of Rule 4 of the Ra.iasthan State Agricultural
Marketing Service Rules, 1986 leaves no room for doubt that after the
amendments to the statutory rules erstwhile posts of Assistant Directors
D (Senior) ceased to exist and in their 1ilace became the posts of Assistant
Directors simplicitor. The said po~1s after the amendment bad to be filled in
by HJO% 1iromotion from the incumbents holding newly created posts of
Marketing Officers which sub~1ituted the earlier existing posts of Assistant
directors (Junior). So far as the erstwhile 1iosts of Assistant Directors
E (Junior) were concerned, serial no. 4 dealing with the said erstwhile posts
unden\"ent a metamorphosis and the said posts got substituted by the newly
created posts of marketing officers who could be recruited now hy 50%
promotion and 50% by direct recruitment For 50% direct recruitment to
the newly created posts of Marketing officers, the eligibility qualifications
were also changed and an additional qualification , namely, of M.Sc.
F (Agriculture) with specialisation in Agriculture Economics, Agriculture
Marketing was 1irescribed. It has, therefore, to be held that after A1nil 1995
the erstwhile posts of Assistant Directors (Junior) ceased to exist and a new
cadre of Marketing Officers came into existance. [1110-C-G]

G 1.2. It is true that the pay scale remained the same. But the erstwhile
posts of Assistant Director (Junior) no longer exist under the Rules after
April 1995 and the said erstwhile posts got substituted by creation of new
posts of Marketing Officers and these newly created posts of Marketing ~
Officers became the source and feeder posts for 100% promotion therefrom
to the newly created posts of Assistant Directors. Thus the erstwhile
H hierarchy in the cadres com1irising of Assistant Director (Junior) and
R.P.S.C. v. CHANDAN RAM 1101
Assistant Director (Senior) were given a go by and instead a new hierarchy A
in the cadre was constituted, namely, Marketing Officer and Assistant
Director. In other words the posts of Assistant Director (Senior) and Assi~1ant
Director (Junior) were totally abolished. [1111-C-D)

1.3. Even if the earlier advertisement were proceeded with, it would
have resulted in a stalemate and exercise in futility. No appointment could B
have been given to the selected candidates to the posts of Assistant Directors
(Junior) after the 1995 amendment of rules as there were no such posts in
the hierarchy of State Service. Consequently it mu~1 be held that on account
of the amendments to the Rajasthan Agricultural Marketing Service Rules
the earlier advertisement had become infructuous and otiose. [1111-GJ C

2.1. It is true that old ncancies were carried fonvard and got merged
along with three more vacancies and became 26 vacancies for the newly
created posts of Marketing Officers, but that does not mean that still the
earlier 23 vacancies remained existing under the Rules for appointing eligible
persons to the 23 erstwhile vacant posts of Assistant Directors (Junior). D
There were no ~'Uch posts after 1995 in the cadres of Rajasthan Ag1icultural
Marketing Service. Those vacancies were carried fonvard and got merged
with the further vacancies in the newly created posts of Marketing Officers.
But all the 26 vacancies, therefore, after April 1995 had to he treated to he
vacancies in the newly created posts of Marketing Officers and these
vacancies had to he filled in necessarily as 11er Rule 17 by issuing fresh E
advertisement for filling up these newly created 26 posts of Marketing
Officers and that is precisely what was done by the appellant-Commission
by issuing fresh adve11isement. [1114-A-C)

2.2. It has, therefore, to he held that no fault could he found with the F
appellant-Commission in issuing fresh advertisement for recruiting eliboihle
candidates from open market for filling up 26 posts in the newly created
cadre of Marketing Officers under the Rules as amended in 1995. [1119-DJ

Jal Singh Dalal v. State ofHaryana, [1993) Supp. 2 SCC 600, followed.
G
State ofM P. v. Raghuvir Singh Yadm~ [1994] 6 SCC 151 and J & K
Public Service Commission v. Dr. Narinder Mohan, [1994] 2 SCC 630,
+- relied on.

State of Haryana v. Subhash Chander Manvaha, [1974) 3 SCC 220,
referred to. H
1102 SUPREME COURT REPORTS [1998] l S.C.R.

A r V. Rangaiah ,._ J. Sreenivasa Rao, (1983] 3 SCC 284; A. A. Calton
v. Director ofEducation, (1983] 3 SCC 33; P. Ganeshwar Rao v. State ofA.P.,
(1988] Su11p. SCC 740; P. Mahendran v. State of Karnataka, (1990] l SCC
411 and B.L. Gupta''· MCD, (Civil Appeal No. 6114 of 1997 decided on 5-
9-1997), held inapplicable.

B CIVIL APPELLATE JURISDICTION: Civil Appeal No. ll08 of
1998 Etc.

From the Judgment and Order dated 3.3.97 ofRajasthan High Court in
DBCSA. No. 508/96.

C P.P. Rao, M.N. Krishnamani and V.N. Gapule, A.P. Dhamija, Umesh
Bohare, Sushi! Kr. Jain, S.B. Bhowmik, K.S. Bhati, Ms. U. Sharma, M.S. Madhur
Dadlani, S.K. Agnihotri and B.D. Sharma for the appearing parties.

The Judgment of the Court was delivered by

D S.B. MAJMUDAR, J. Leave granted in all these Special Leave Petitions.

By consent of learned advocates appearing for the contesting parties
all these appeals were heard finally and are being disposed of by this common
judgment.
E
The appellants in these appeals are aggrieved by tl1e judgment and
order rendered by tl1e Division Bench of the High Court of Rajasthan in D.B.
Civil Special Appeal No, 508of1996. By the impug.1edjudgment the Division
Bench of the High Court allowed the appeal of the original writ petitioner-
common respondent no 1 in these appeals whose writ petition was dismissed
F by the learned Single Judge at admittance stage. As a result of the decision
of the Division Bench the Civil Special Appeal was allowed and the appellant-
St3te of Rajasthan in Civil Appeal arising out of Special Leave Petition (C)
No. 18511of1997 and the RajasthanPublic Service Commission, Ajmerbeing
appellant in Civil Appeal arising out of Special Leave Petition (C) No 9698 of
G 1997, were directed to proceed witl1 the recruitment process pursuant to the
advertisement-Annelmre P-1, for making appointments to the poSts of Assistant
Directon; (Junior), re-designated as Marketing Officers. Appellants in appeal
arising out of S.L.P(C) No. 16267 of 1997 are candidates who appeared at the +
screening test conducted by the Rajasthan Public Service Commission pursuant
to a second advertisement which was impugned by respondent no l in his
H writ petition.
R.P.S.C. v. CHANDAN RAM [S.B. MAJMUDAR, J.) 1103

In order to appreciate the common grievance of the appellants against A
the very same judgment of the Division Bench of the High court a few
relevant facts will have to be noted at the outset.

Introductory Facts

Common respondent no l, pursuant to an advertisement dated 05th B
November 1993 issued by the appellant-Rajasthan Public Service Commission
for recruitment of 23 posts of Assistant Directors (Junior), had applied for
being considered for one of the advertised posts as a direct recruit. It is not
in dispute that respondent no l, who will hereinafter be referred to as the 'writ
petitioner was already working in the same department and as a departmental C
candidate he had offered his candidature as <t direct recruit for one of the
advertised posts. lt is also not in dispute between the parties that the said
posts were governed by the Rajasthan State Agricultural Marketing Service
Rules, 1986 (hereinafter referred to as 'the Service Rules'). The said
advertisement dated 05th November 1993, which is Annexure P-1 in the case,
was issued by the Rajasthan Public Service Commission pursuant to the D
• requisition dated 0 lst November 1993 sent by the State of Rajasthan for
initiating recruitment process by the Rajasthan Public Service Commission for
filling up these posts. The last date for inviting applications from eligible
candidates, as mentioned in the said advertisement, was 3 lst December 1993.
Three days prior to the said last date the State of Rajasthan by its E
communication dated 28th December 1993 asked the Rajasthan Public Service
Commission not to go ahead with the said recruitment as the relevant rules,
pertaining to the recruitment to the posts ·concerned, were sought to be
amended. Result was that after the expiry of the last date for inviting applications
from eligible candidates for being considered for appointments to the advertised
posts of Assistant Directors (Junior) in the Rajasthan Agricultural Marketing F
Service, the proceedings remained dormant and the State Public Service
Commission did not proceed further in the matter, it is not in dispute between
the parties that the writ petitioner at the relevant time being eligible for being
considered for such selection had, pursuant to the advertisement Annexure
P-1, applied in time. On 19th April 1995 the State ofRajasthan got the Service
Rules amended in exercise of powers conferred by the proviso to Article 309 G
of the Constitution of Inc!ia whereby the Governor of Rajasthan made requisite
I- amendments to the said Rules. We will refer to these amended rules at an
appropriate place in the latter part of this judgment. To resume the narrative
of events, as the Service Rules were got amended the State of Rajasthan
withdrew its earlier requisition, dated Olst November 1993 as submitted to the H
1104 SUPREME COURT REPORTS [1998] l S.C.R.

A Public Service Commission, by communication dated 03rd August 1995. As
the earlier requisition for recruitment of suitable candidates to the 23 posts
of Assistant Directors (Junior) was withdrawn by the State, the Rajasthan
Public Service Commission also by its notification dated 23rd August 1995
cancelled the earlier advertisement, Annexure P-1. Thereafter on the fresh
B requisition being issued by the State for filling up 26 posts of Marketing
Officers under the amended Rules a fresh advertisement was issued on 08th
January 1996 by the Rajasthan Public Service Commission inviting applications
from eligible candidates for being considered to be appointed to the aforesaid
26 posts. The fresh advertisement is at Annell.'Ure P-4. The writ petitioner
pursuant to the said fresh advertisement applied once again and put fonvard
C his candidature. Pursuant to the said fresh application by r~spondent no. \-
writ petitioner the Rajasthan Public Service Commission asked him to appear
before the Commission on !8t11 August 1996 for screening test. On receipt of
the said intimation, instead of appearing for t11e screening test respondent no.
1 filed writ petition in t11e R;~jast11an High Court on 08th August 1996. His
contention in the writ petition before t11e learned Single Judge was that
D despite tlle issuance of fresh advertisement for filling up 26 posts of Marketing ·{
Officers in the Rajasthan State Agricultural Marketing Service, as per tlle
amended Rules, t11e writ petitioner who had earlier applied pursuant to t11e
first advertisement Annexure P-1 dated 05th November 1993 was entitled to
be considered in tlle light of t11e said first advertisement, qua t11e 23 vacancies
E which were already existing in tlic State's Agricultural Marketing Service
between 1986 and 1992, and for filling up tllose earlier vacancies the amended
rules of 1995 could not be pressed in service and tliose vacancies had to be
filled up as per tlie earlier unamended SeIVice Rules. Learned Single Judge did
not accept tlie said contention and summarily rejected t11e writ petition. The
Division Bench by the impugned judgment and order in tlle Civil Special
F Appeal moved by the writ petitioner, took a contrary view and held, relying
upon some of the decisions of tliis Court, that for old vacancies the amended
rules could not be pressed in seIVice and they had to be filled up pursuant
to the earlier existing rules during t11e time when tllese vacancies occurred in
the State Service. As noted earlier the aforesaid judgment of tlle Division
G Bench of the High Court is brought on t11e anvil of scrutiny of this Court in
tlie present appeals on grant of special leave to appeal to the aggrieved
respondents in t11e Civil Special Appeal before tlle High Court.
·\

Rival Contentions

H Shri P.P. Rao, learned senior counsel appearing for tlie appellants in
R.P.S.C. v. CHANDAN RAM [S.B. MAJMUDAR, J.] ll05
appeal arising out of Special Leave Petition (C) No. 16267 of 1997 and learned A
senior counsel, Shri M.N. Krishanamani, appearing for State of Rajasthan in
appeal arising out of Special Leave Petition (C) No. 18511 of 1997 submitted
in support of their appeals that the Division Bench of the _High Court
patently erred in relying upon the judgments of this Court which were not
applicable at all on the facts of the present case. It was submitted that in spite B
of the fact that the writ petitioner might have applied pursuant to the first
advertisement Annexure P-1 he had no vested right to insist that the
recruitment process pursuant to the said advertisement must be continued
and must be brought to its logical end. That it was open to the State
authorities to direct the Public Service Commission not to proceed further
with the said recruitment process especially when the rules of recruitment C
were sought to be amended in the meantime. Not only that, the rules were
got amended as a result of which the erstwhile posts of Assistant Directors
(Junior) ceased to exist and re-cadrisation was done in the State Agricultural
Marketing Service. Instead of the post of Assistant Director (Junior), a new
post of Marketing Officer was created and simultaneously the post of Assistant
Director (Senior) was abolished and a new post of Assistant Director was D
created. Consequently for these newly created posts of Marketing Officers
when fresh advertisement was issued by tl1e Public Service Commission
pursuant to the requisition furnished by the State of Rajasthan for filling up
26 vacancies in these newly created posts, the earlier advertisement which
was already cancelled could not be relied upon by the writ petitioner for E
insisting that despite this change in the recruitment rules and despite the
abolition of the old posts of Assistant Directors (Junior) the old advertisement
for filling up the non-existing posts should still be continued and should be
taken to its logical end. That this was not a case where earlier existing
vacancies in the same posts were sought to be filled in by applying the new
recruitment rules changing the q!!alifications for appointment to the very F
same earlier advertised posts and hence reliance placed by the High Court on
the decisions of this Court was completely misplaced.

On the other hand, it was submitted by learned senior counsel Shri
V. N. Ganpule for tl1e writ petitioner that 23 vacancies which were already G
advertised pursuant to the first advertisement dated 05th November 1993 were
carried forward in the second advertisement dated 08th January 1996 Annexure
P-4. Therefore, the old vacancies which had arisen between 1986 and 1992
remained to be governed by the then existing rules and such vacancies could
not be filled up by applying the amended rules of 1995. It was, therefore,
submitted by him that the High Court had rightly followed the decisions of H
1106 SUPREME COURT REPORTS [1998] l S.C.R.

A this Court which had consistently taken the view that for recruitment on the
vacancies which had arisen in the past the then existing old rules of recruitment
would apply and not the subsequent new rules of recruitment. That the new
rules would apply only for filling up new vacancies which might arise after
the new or amended rules were promulgated and, therefore, no error was
committed by the Division Bench of the High Court in arriving at the impugned
B decision. Shri Ganpule further submitted that this is not a case in which the
old posts of Assistant Directors (Junior) were abolished, on the contrary, by
the amended rules they were re~designated as Marketing Officers. The salary
of these posts remained the same, mode of recruitment remained the same
save and except the fact that an additional qualification of M.Sc. First Class
C was also added as one of the eligibility criteria. But the nature of duties
substantially remained the same, pay scales remained t11e same and
co1_1.sequently it could not be said that the posts of Assistant Directors
(Junior) were abolished and in their place new posts of Marketing Officers
were created for which new advertisement could have been issued in
connection with earlier existing old vacancies which were carried forward.
D
In the light of the aforesaid rival contentions the following points arise
for our consideration :

1. Whether the posts of Assistant Directors (Junior) in the Rajasthan
State Agricultural Marketing Service got obolished and
E substituted by the newly created posts of Marketing Officers as
per the amendment to t11e Service Rules of 1986 pursuant to
notifications dated 19th April 19~5 and 26th April 1995.
2. If the answer to the first point is in the affirrnative, whether the
old advertisement, Annexure P-1 dated 05th November 1993 for
F recruitment from open market by way of direct recruitment of
eligible candidates for the said 23 advertised posts could survive
any further after the amendment to the rule in 1995.
3. If the answer to the second point is in the negative whether any
fault can be found with the fresh process of recruitment initialed
G by the Rajasthan Public Service Commission pursuant to the
advertisement dated 08th January 1996, Annexure P-4.
4. What final order ? We shall consider the aforesaid points seriatim
Point No. 1
H In order to resolve the controversy centering round this point it is
R.P.S.C. v. CHANDAN RAM [S.B. MAJMUDAR, J.] 1107

necessary to note the relevant Service Rules. Rajasthan State Agricultural A
Marketing Service Rules, 1986 were got promulgated by the State of Rajasthan
through the Governor in exercise of the powers under the proviso to Article
309 of the Constitution of India. The notification promulgating these rules
was dated 21st January 1986. Pursuant to these rules Rajasthan State
Agricultural Marketing Service was constituted. 'Service' was defined by B
Rule 2 sub-rule (i) to mean, 'the Rajasthan State Agricultural Marketing
Service'. Rule 4 of the said Rules found in Part II pertaining to caption
"Cadre' lays da:wn the composition and strength of the service. Sub-rule (1)
thereof provides that, the nature of posts included in each category of the
service, shall be as specified in column 2 of the Schedule'. Sub-rule (2) of Rule
4 provides that, "the strength of posts in each category shall be such as may C
be determined by the Governments from time to time, provided that the
Government, may - (a) create any post permanent or temporary from time to
time as may be found necessary and may abolish any such posts in the like
manner without thereby entitling any person to any compensation.' Rule 4
sub-rule (2) (b) enables the State to leave nnfilled or hold in abeyance of
abolish or allow to lapse any post, permanent or temporary from time to time, D
without thereby entitling any person to any compensation. As per Rule 5 sub-
rule (1) (d), all persons recruited to the service in accordance with the provisions
of these rules except those appointed on an urgent temporary basis under rule
26 would, amongst otl1ers, get included in the said service governed by the
Rules.
E
So far as the recruitment to the said posts in different cadres in the said
service is concerned Part III deals with the said topic of 'recruitment'. Rule
6 of the Rules provides for 'Methods of recruitment'. Sub-rule (I) thereoflays
down that, 'recruitment to the posts in the service after the commencement
of these rules shall be made by the following methods in the proportion F
indicated in column 3 of schedule'. One of the modes of recruitment is by
direct recruitment in accordance with part IV of the Rules. As we are concerned
with direct recruitment Part IV becomes relevant. It deals witll 'Procedure for
direct recruitment'. Rule 17 lays down that, 'application for direct recruitment
to the post or posts in the service shall be invited by the Commission by G
advertising the vacancies to be filled in the Newspapers or in such other
+ manner as tlley may deem fit'. We may at tllis stage also refer to rules which
are found in Part III regarding recruitment to the service and on which strong
reliance was placed by learned senior counsel for the respondent-writ
petitioner.. Rule 7 deals with 'Reservation of vacancies for the scheduled
caste and the Scheduled tribes. Sub-rule (1) thereof lays down that, reservation H
ll08 SUPREME COURT REPORTS [1998] 1 S.C.R.

A of vacancies for the Scheduled castes and the Scheduled tribes shall be in
accordance with the orders of the Government for such reservation in force
at the time of recruitment i.e. by direct recruitment and or by promotion. Rule
8 deals with 'Detern1ination of vacancies'. Sub-rule (1 )(a) thereof provides
that, 'subject to the provisions of these rules the appointing authority shall
B detennine as soon as possible after 1st April every year, the actual number
of vacancies occurring (sic) as on 1st April and also vacancies anticipated
during the financial year'. Rale 11 deals with 'Age' of recruitment and eligibility
of a candidate for direct recruitment and lays down that, 'a candidate for
direct recruitment to the service must have attained the age of 21 years and
must not have attained the age as prescribed in column 9 of the schedule as
c the case may be on the first day of January next following the last date fixed
for receipt of applications, provided (i) ............ (ii) ............ (iii) ............ and
(iv) in the case of persons serving in connection with the affairs of the state
in substantive capacity, the upper age limit shall be 40 years for direct recr-
uitment to posts filled in by competitive examination or in the case of posts
D filled in through the Conunission by interview. This relaxation shall not apply
to urgent temporary appointment.

It is the case of the writ petitioner tl1at pursuant to the first advertisement
dated 05th November 1993 Annexure P-1 when 23 posts of Assistant Directors
(Junior) were advertised for being filled in, the writ petitioner as a departmental
E candidate was within the upper age limit of 40 years for direct recruitment as
per Rule 11 (IV). But the difficulty for him arose in the light of the second
advertisement dated 08th January ·1996 Annexure P-4 as by that date he had
crossed tl1e pennissible upper age limit and that is the reason why this
litigation was triggered off by him by insisting that the authorities must
F proceed with tlle recruitment pursuant to tlle first advertisement of 05tll
November 1993 only.

Rule 4 about composition and strengtll of service and providing for
various posts in tlle cadre has a direct reference to colunm 2 of tlle schedule.
When we turn to the Schedule annexed to tlle rules we find at serial no.4 tlle
G post of Assistant Director (Junior)/Secretary Market Conm1ittee. This was tlle
original serial no. 4 in tlle Schedule. At serial no.3 in tlle said Schedule was
tlle post of Assistant Director (Senior) which was to be filled in by l 00%
promotion from tlle incumbents of tlle posts of Assistant Directors (Junior).
It is tllis Schedule which underwent amendment by tlle amending notifications
H issued by tlle Governor of Rajasthan under tlle proviso to Article 309 to tlle
R.P.S.C. v. CHANDAN RAM (S.B. MAJMUDAR, J.] 1109

Constitution of India. The said notifications amending the statutory rules read A
as under :

"GOVERNMENT OF RAJASTHAN DEPARTMENT
OF PERSONNEL (A-Gr-II)

No.F.l (2)DOP/A-II/83 Jaipur, Dated 19-4-95 B

NOTIFICATION

In exercise of the powers conferred by the proviso to Article 309 of
the Constitution of India, the Governor of Rajasthan hereby makes the C
following amendment in the Rajasthan State Agricultural Marketing
Service Rules, 1986, namely:-

AMENDMENT

In this schedule appended to the said rules :- D

1. The existing expression" Assistant Director (Senior)" occurring
in Col. 4 against the entry at SI. No.2 and in Col.2 against the
entry at SI. No.3 shall be substituted by the expression "Assistant
Director''.
E
2. The existing expression "Assistant Director (Junior)" occurring
in Col.4 against the entry at SI. No.3 and in col.2 against the
entry of Sl.No.4, shall be substituted by the expression
"Maiketing Officer''.
F
GOVERNMENT OF RAJASTHAN DEPARTMENT
OF PERSONNEL (A-Gr.II)

No.f.1(2) DOP/A-II/83 Jaipur dated 26-4-95

NOTIFICATION G

In exercise of the powers conferred by the proviso to Article 309 of
the Constitution of India, the Governor of Rajasthan hereby makes the
following amendment in the Rajasthan State Agricultural Maiketing
Service Rules, 1986, namely:- H
1110 SUPREME COURT REPORTS [1998] 1 S.C.R.

A AMENDMENT

The existing entry occurring in column N0.7, against S.No.4 of the
Schedule appended to the said Rules, shall be substituted by the
following, namely :-7

"M.Sc. (Agriculture) with specialisation in Agriculture Economics/
B
Agriculture Marketing of a University established by low in India.

OR

1. At least second class degree either in Arts with Economics or
C in Commerce or in Agriculture of a University established by law
in India.
2. Specialised training in Agriculture Marketing from a recognised
institution."

D A conjoint reading of these two amending notifications with the erstwhile
Schedule entries and Rule 4 of the Rules leaves no room for doubt that after
these amendments to the statutory rules erstwhile posts of Assistant Directors
(Senior) as earlier found at serial no.3 ceased to exist and in their place became
the posts of Assistant Directors simplicitor. TI1e said posts after the amendment
had to be filled in by 100% promotion from the incumbents holding newly
E created posts of Marketing Officers which substituted the earlier existing
posts of Assistant Directors (Junior). So far as the erstwhile posts of Assistant
Directors (Junio~)/Secretary Market Committee were concerned, serial no.4
dealing with the said erstwhile posts underwent a metamoiphosis and the said
posts got substituted by the newly created posts of Marketing Officers who
F could be recruited now by 50% promotion and 50% by direct recruitment. For
50% direct recruitment to the newly created posts of Marketing Officers, the
eligibility qualifications were also changed and while retaining the earlier
qualifications one additional qualification was also brought within the sweep
of the Rules, namely, M.Sc. (Agriculture) with specialisation in Agriculture
Economics/Agriculture Marketing of a University established by law in hldia.
G In the light of the aforesaid amendments to the Service Rules, therefore, the
following result ensued :

I. After April 1995 the erstwhile posts of Assistant Directors (Junior)
ceased to exist and a new cadre of Marketing Officers came into existence.

H 2. hl directly recruiting incumbents for the newly created posts of
-~~

R.P.S.C. v. CHANDAN RAM [S.B. MAJMUDAR, J.] 1111
Marketing Officers under the Seivice Rules the educational qualification also A
,.,, underwent a sea-change and M. Sc. Agriculture with specialisation in
~
Agriculture Economics became the prime qualification for being eligible to be
considered for the said posts. Thus under the erstwhile rules for being
considered for direct recruitment to the posts of Assistant Directors (Junior)
second class Bachelor's Degree was sufficient for the candidate. Now a
Master's Degree in Agriculture with specialisation in Agriculture Economics B
""" was introduced as a prime educational qualification for the concerned candidate
and only second class degree at Graduation level was retained as an alternative
eligibility criterion. It is true that the pay scales remained the same. But the
erstwhile posts of Assistant Directors (Junior) no longer existed under the
Rules after April 1995 and the said erstwhile posts got substituted by creation c
of new posts of Marketing Officers and these newly created posts of Marketing
Officers became the source and feeder posts for cent percent promotion
therefrom to the newly created posts of Assistant Directors. Tims the erstwhile
hierarchy in the cadres comprising of Assistant Director (Junior) and Assistant
Director (Senior) were given a go-by and instead a new hierarchy in the
cadres was constituted, namely, Marketing Officer and Assistant Director. In D
other words the posts of Assistant Director (Senior) and Assistant Director
(Junior) were totally abolished.

Under these circumstances therefore, it is difficult to appreciate how the
Division Bench of the High Court could persuade itself in agreeing with the
E
submission of the learned counsel for the respondent-writ petitioner that
despite t11is change of cadres and the provision for recruitment on new posts
the old advertisement of 05th' November 1993 Amlexure P-1 seeking to consider
the candidature of applicants for erstwhile 23 advertised vacancies in the
posts of Assistant Director (Junior) in the Agricultural Marketing Seivice of
the State of Rajasthan would still be pursued further and recruitment should F
-< be effected for these 23 erstwhile vacancies as per t11e old advertisement. It
is easy to visualise tliat even if sucll an earlier advertisement of 05th November
1993 was proceeded with further it would have resulted into a stalemate and
an exercise in futility. No appointment could have been given to the selected
candidates to the posts of Assistant Directors (Junior) after 1995 amendment
of rules as tllere were no such posts in the hierarchy of State Seivice.
G
Consequently it must be held tl1at on account of the amendments to the
1- Rajastllan Agricultural Marketing Seivice Rules t11e earlier advertisement dated
05tll November 1993 had become infructuous and otiose. Only on this short
ground the writ petition of the respondent-writ petitioner should have been
dismissed by confirming the order of dismissal of the writ petition earlier H
1112 SUPREME COURT REPORTS [1998] 1 S.C.R.

A passed by the learned Single Judge. A conjoint reading of Rules 4, 6 and 17
to which we have made a reference earlier leaves no room for doubt that direct
recruitment can be resorted to by the Public Service Commission only for
existing posts in the Service and for which effective exercise of recruitinent
could be resorted to at a given point of time. It is true that when the earlier
advertisement dated 05th November 1993 Annell.llfe P-1 was issued by the
B Public Service Commission there were 23 vacancies in the cadre of Assistant
Directors (Junior) but by passage of time due to the metamorphosis in the
said cadre as a result of amendments to the relevant Service Rules, by the
time fresh advertisement was issued on 08th January 1996 there were no posts
of Assistant Directors (Junior) in the hierarchy of posts in the cadres governed
C by the Rules and, therefore, the fresh advertisement dated 08th January 1996
as per Rule 17 had necessarily to refer to the process of direct recruitment
to the newly created posts of Marketing Officers and no fault could be found
with the said fresh advertisement. This aspect of the matter was highlighted
by the Public Service Commission itself by filing counter in the writ petition
in the appellate proceedings before the Division Bench of the High Court. A
D copy of his said counter is found at page 66 of the Paper Book in appeal
arising out of S.L.P(C) No 9698 of 1997, moved by the Rajasthan Public
Service Commission, before us. Paragraphs 7 and 8 of the said counter require
to be noted in this connection :

E "7. That in reply to para no.7 of the writ petition, it is submitted that
after the withdrawal of requisition, the cadre structure given in the
Rules was revised and the post of Assistant Director .(Junior) was
redesignated and the post of Marketing Officer was included in the
cadre structure for which new qualifications were prescribed . After
revision in the cadre structure and amendment in the Rules, a fresh
F
requisition was received by the Commission from the State Government
, on the basis of which, an advertisement was issued by the respondent
Commission on 8th January, 1996 and the last date for submission of •
the application form in response to the said advertisement was 7th
March, 1996.
G
8. That the averments made in para 8 of the writ petition are wholly
misconceived. The post of Marketing Officer came into existence after
the revision in the cadre structure. No post of Marketing Officer was
available under the earlier unamended rules. In these circumstances,
H the contention of the petitioner that the post of Marketing Officer was
R.P.S.C. v. CHANDAN RAM [S.B. MAJMUDAR, J.] ll13

available from the year 1986-87 to 1992·93 is wholly incorrect. The A
further contention of the petitioner that the posts are governed by the
unamended Rules of 1986 and, therefore, the State Government has no
power to fill up the vacancies in terms of the amended Rules is wholly
untenable. It is well settled law that amended Rules have to be taken
into consideration before the posts have been advertised. If on the B
date of advertisement the Rules have been amended, the posts are to
be filled up according to the Rules prevailing on the date of
advertisement and the same did not to be filled up according to the
unamended Rules."

Despite this clear case made out by the Rajasthan Public Service C
Commission before the Division Bench of the High Court and despite the fact
that the said case was clearly borne out from the statutory rules as amended
in April 1995 the High Court in the impugned judgment has taken the view
that the posts of Assistant Directors (Junior) appear to have been re-designated
as Marketing Officers meaning thereby there was only change of nomenclature.
It is difficult to appreciate this line of reasoning. Not only the posts of D
Assistant Director (Junior) got abolished and substituted by new posts of
Marketing Officers but it is the new post of Marketing Officer which became
the feeder post for 100% promotion from the said newly created post to the
Post of Assistant Director which also was a newly created post in the place
of the erstwhile post of Assistant Director (Senior). It must, tl1erefore, be held E
that the earlier advertisement of 05th November 1993 Anneln1re P-1 became
infructuous and could not be relied upon for sustaining any further process
of recruitment pursuant to the said infructuous advertisement seeking to
recruit persons to posts which no longer existed in Rajasthan State Marketing
Service after April 1995. The first point, therefore, will have to be answered
..,.. in the affirmative in favour of the appellants and against the respondent-writ F
petitioner.

Point No. 2

Once the first point is answered against the respondent-writ petitioner G
nothing further would smvive in his writ petition. The reason is obvious. The
decisions of this Court relied upon by the Division Bench of the High Court
I' in taking the view that old vacancies in the posts had to be filled in pursuant
to the old recruitment rules would become ex facie inapplicable. Once it is held
that the old vacancies were in posts which no longer existed after April 1995,
there remained no occasion to consider whether these old vacancies could H
1114 SUPREME COURT REPORTS [1998] l S.C.R.

A be filled in by applying earlier rules of recruitment to the very same posts.
It is true that old vacancies were earned forward and got merged along with
three more vacancies and became 26 vacancies for the newly created posts
of Marketing Officers, but that does not mean that still the earlier 23 vacancies
remained existing under the Rules for appointing eligible persons to the 23
B erstwhile vacant posts of Assistant Directors (Junior). There were no such
posts after 1995 in the cadres ofRajasthan Agriculture Marketing Service, as
seen earlier. Those vacancies were carried forward and got merged with the
further vacancies in the newly created posts of Marketing Officer. But all the
26 vacancies, therefore, after April 1995 had to be treated to be vacancies in
the newly created posts of Marketing Officers and these vacancies had to be
C filled in nec,essarily as per Rule 17 by issuing fresh advertisement for filling
up these newly created 26 posts of Marketing Officers and that is precisely
what was done by the Rajasthan Public Service Commission by issuing fresh
advertisement dated 08th January 1996.

However as strong reliance was placed by the High Court on the
D judgments of t11is Court and which were again pressed in service by learned
senior counsel for respondent no. I-writ petitioner we may briefly refer to
t11ese judgments. In t11e case of Y. V Rangaiah and others etc. v. J .Sreenivasa
Rao and others, [1983] 3 SCC 284 a Bench of two learned Judges of this Court
had to consider tlle question about applicability of Rule 4 (a)(l)(i) of the
E Andhra Pradesh Registration and Subordinate Service Rules which laid down
the procedure for appointment by promotion to t11e posts in that service.
Considering the said rules it was observed that when the said rules enjoined
the appointing autllority to prepare panels for selecting promotees yearwise
in old vacancies to be filled in by promotion if panels were not prepared at
appropriate time tlle aut11orities could be directed to prepare such panels and
F while preparing those panels for the earlier years tlle then e;...isting statutory
rules of recruitment had to be applied. The said decision obviously cannot ~
apply on t11e facts of tlle present case for two reasons. Firstly, tllis is not a
case of promotion but direct recruitment to t11e advertised posts and secondly
the scheme of the A. P. Rules considered by the Court in that case cast a
G statutory duty and obligation on t11e part of the appointing authority to
prepare panels of eligible candidates yearwise in connection witll tlle vacancies
t11en existing and if they had failed in tllat statutory duty and obligation they ,._
could legitimately be called upon to carry out that obligation and while doing
so for preparing tlle panels for t11e earlier years the relevant rules then existing
had to be kept in view. But even apart from these two distinguishing features
H one additional sallent aspect of the matter is t11at tllese panels were to be
R.P.S.C. v. CHANDAN RAM [S.B. MAJMUDAR, J.) 1115
prepared for filling up vacancies by promotion to the posts of Sub-Registrars A
Grade II. The said posts continued to exist in the cadre and the only question
was how the vacancies in the said existing posts had to be filled in by
promotion by preparing panels for the relevant years. As we have seen earlier
in the present case the old posts of Assistant Directors (Junior) had ceased
to exist. Therefore, there remained no occasion for proceeding with recruitment B
to such non-existing posts pursuant to the earlier stale and infructuous
advertisement of 05th November 1993 Annexure P-1. In the same volume at
page 33 is found another decision in the case of A.A. Calton v. Director of
Education and another, (1983) 3 SCC 33. It is true that in that case another
Division Bench of tl1is Court consisting of E.S. Venkataramiah (as he then
was) and AN.Sen, JJ., held that the process of selection under Section 16- C
F of the U.P. Intem1ediate Education Act, 1921 by way of direct recruitment
commenced from the stage of calling for applications for a post up to tile date
on which tile Director became entitled to make a selection under the said
provision and tile entire process was an integrated one. But even in that case
tllere was no question of the said posts to be filled in by direct recruitment
ceasing to exist under the Act and the Rules. Not only that there was an D
earlier order of the High Court in the proceedings between the contesting
parties whereby the High Court had remanded direct recruitment proceedings
for being re-considered by the Director and in view of tile said order of the
High Court which had become final between the parties it could not be said
subsequently that the Director could not undertake the exercise of appointment E
by way of direct recruitment as the Act had got amended in the meantime.
In the case of P. Ganeshwar Rao and others v. State of Andhra Pradesh and
others, (1988) Supp SCC 740 another Division Bench of two learned °Judges
of this Court consisting of E.S. Venkataramiah and N,D. Ojha, JJ., had to
consider the question whether the process of filling up of 51 vacancies which
had been notified by the Public Service Commission for direct recruitment F
under the then existing recruitment rules which permitted clubbing of temporary
vacancies also for the purpose of recruitment, could be continued further if
pending such recruitment process the rules of recruitment got amended and
only 37-1/2% of substantive vacancies could be filled up by direct recruitment.
Answering this question Venkaratamiah, J, (as he then was) speaking for the G
Court held tl1at the amendment to the recruitment rules referred to future
vacancies only as the E:l.lJlanation which was introduced by way of amendment
to Special Rules 28th April 1980 contained the crucial words '37-1/2 per cent
of substantive vacancies arising in the category of Assistant Engineers shall
be filled by direct recruitment... ..'. The words 'vacancies arising in the category'
were emphasised to mean future vacancies and which could not cover earlier H
1116 SUPREME COURT REPORTS [1998] 1 S.C.R.

A erstwhile vacancies and, therefore, it was held that for filling up the earlier
vacancies which had arisen prior to the amendment, the old rules would apply.
1n paragraph 7 of the Report, however, the following pertinent observations
were also made :

" ...... If the above clause had read '37 1/2 per cent of the substantive
B vacancies in the category of Assistant Engineers shall be filled by the
direct recruitment' perhaps there would not have been much room for
discussion. The said clause then would have applied even to the
vacancies which had arisen prior to the date of the amendment but
which had not been filled up before that date ...... "
c It is, therefore, obvious that this Court in P. Ganeshwar 's, case (supra)
itself held tliat if the recruitment rules underwent amendment prior to actual
filling up of the advertised posts the amended rules would apply and it is only
because of the word 'arising' as found to have been employed in the amended
provision that the aforesaid decision was rendered. But even that apart, this
D decision also referred to existing posts and had nothing to do with posts
which had got abolished in tl1e meantime as in the present case. We may now
refer to a three Judge Bench decision of this Court in the case of P. Mahendran
and others etc v. State of Karnataka and others, [1990] 1 SCC 411. 1n that
case a Bench of three learned Judges of this Court consisting of E.S.
E Venkataramiah. CJ., K.N. Singh and N.M Kasliwal JJ., speaking through
Singh J., had to consider the question whether the Karnataka General Service
(Motor Vehicles Branch) (Recruitment) Rules, 1962 which had earlier prescribed
a diplonia in Automobile Engineering or Mechanical Engineering as a minimum
qualification for appointment of a Motor Vehicle Inspector, once amended in
1987, could affect the earlier process of selection undertaken in the light of
F prior unamended rules by the Karnataka Public Service Commission and could
make the earlier diploma-holder applicants ineligible only because after
amendment of the rules diploma- holders could not apply for such posts. It
was found as a matter of fact that the earlier selection process when the
unamended rules were holding tl1e field had got completed. The selected
G candidates were already recommended for appointment and their appointments
would have got fructified but for the fact that the High Court of Kamataka
in the writ petition intervened and issued stay orders against such
appointments. The question was whether after vacating such stay by the
High Court when the writ petition was disposed of the selected candidates
could be given appointments pursuant to tlle earlier rules or tlley could be
H told off tlle gates only because as per the new amended rules they being tlle
R.P.S.C. v. CHANDAN RAM [S.B. MAJMUDAR, J.] 1117
diploma-holders could not be held eligible to be appointed to such posts. In A
the light of these peculiar facts of this case it was observed by this Court
,,;...
that the amended rules did not contain any provision enforcing the amended
rules with retrospective effect and that the appointments which would have
been made available to the selected candidates but for the interim relief
granted by the High Court of Kamataka could not be denied to them. We fail
to appreciate how the said decision can advance the case of the respondent- B
writ petitioner when no such occasion arose in the history of this litigation
"" wherein the respondent -writ petitioner never got selected for the said post
under the old rules, nor was his appointment intercepted by any stay order
of the Court. Save and except inviting applications as per the earlier
advertisement no further step in connection with his recruitment was ever c
undertaken by the Public Service Commission. Hence, no right accrued to him,
save and except, for being considered for such selection if earlier advertisement
had survived . In fact Shri Ganpule, learned senior counsel for the respondent-
writ petitioner fairly stated that it is not his case that the respondent had any
•
right to be appointed to the said post. His claim was only to be considered
for being selected for the said post. As we have seen earlier, once the earlier, D
.._
advertised posts ceased to exist under the Service Rules there remained no
occasion for considering writ petitioner's claim for being considered for
appointment to such a non-existing post. Our attention was also invited to
a decision of this Court in the case of B.L. Gupta and Anr V. M.C.D [Civil
Appeal NO. 6114 of 1997 etc.] decided on 5th September 1997. In the said E
decision the question of promotion to the post of Assistant Accountant from
the feeder post of Senior Clerk with three years' experience and the other
feeder post of Junior Clerk with eight years' expenence was on the anvil of
scrutiny. For the earlier vacancies of the Assistant Accountants the earlier
rules of recruitment were held applicable and for new vacancies the amended
rules of 1995 had to be applied. For coming to the said conclusion this Court F
-y relied upon some of the earlier decisions of this Court to which we have made
a reference earlier. We fail to appreciate how t.'iis decision also can advance
the case of the respondent -writ petitioner. The post of Assistant Accountant
was a promotional post which did not cease to exist in the hierarchy of the
service echelon with -.yhich this Court was concerned. Hence the ratio of the
G
decision of this Court in Civil Appeal No. 6114 of I 997 also cannot be of any
assistance to respondent -writ petitioner. On the contrary a three- Judge
'·
j_ Bench judgment of this Court in the case of Jai Singh Dalal and others v.
State of Haryana and another, [I 993] Supp 2 SCC 600 would squarely get
attracted on the facts of the present case. A.M Ahmadi, J., speaking for the
·three-judge Bench in paragraph 7 of the Report relying on an earlier judgment H
1118 SUPREME COURT REPORTS [1998] 1 S.C.R.

A of this Court in case of State of Haryana v. Subash Chander Marwaha,
[1974] 3 sec 220 laid down that when the special process ofrecruitment had
not been finalised and culminated into select list the candidate did not have
any right to appointment. In this connection it was observed that the
recruitment process could be stopped by the Government at any time before
a candidate has been appointed. A candidate has no vested right to get the
B process completed and at the most the Government could be required to
justify its action on the touchstone of Article 14 of the Constitution.

In the facts of the present case it cannot even be suggested that the
action of the State of Rajasthan was in any way arbitrary in intercepting the
C earlier recruitment process pursuant to the first advertisement dated 5th
November 1993 AnneA11re P-1 as the Rules themselves had got amended and
the posts earlier advertised had ceased to exist.

In the case of State of MP. and others v. Raghuveer Singh Yadav and
others, [1994] 6 SCC 151 a Bench of two learned Judges of this Court
D consisting of K. Ramaswamy and N. Venkatachala, JJ., had to consider the
question whether the State could change a qualification for the recruitment
during the process of recruitment which had not resulted into any final
decision in favour of any candidate. In paragraph 5 of the Report in this
connection it was observed that it is settled law that the State had got power
to prescribe qualification for recruitment. In the case before the Court pursuant
E to the an1ended Rules, the Government had withdrawn the earlier notification
and wanted to proceed with the recruitment afresh. It was held that this was
not the case of any accrued right. The candidates who had appeared for the
examination and passed the written examination had only legitimate eA'}Jectation
to be considered according to the rules then in vogue. The amended rules
F had only prospective operation. The Government was entitled to conduct
selection in accordance with the changed rules and make final recruitment.
Obviously no candidate acquired any vested right against tl1e State. Therefore,
the State was entitled to withdraw the notification by which it had previously
notified recruitment and to issue fresh notification in that regard on the basis
of the amended Rules. In the case of J & K Public Service Commission and
G others v. Dr. Narinder Mohan and others, [1994] 2 sec 630 another Division
Bench of two learned Judges of this Court consisting of K. Ramaswamy and
N.P. Singh, JJ., considered the question of interception of recruitment process
earlier undertaken by the recruiting agency. In this connection it was observed
that the process of selection against existing and anticipated vacancies does
H not create any right to be appointed to the post which can be enforced by
R.P.S.C. v. CHA.NDAN RAM [S.B. MAJMUDA.R, J.) 1119

a mandamus. It has to be recalled that in fairness learned senior counsel Shri A
Ganpule for the respondent-writ petitioner stated that it is not his case that
the writ petitioner should be appointed to the advertised post. All that he
claimed was his right to be considered for recruitment to the advertised post
as per the earlier advertisement dated 05th November 1993 Annexure P-1 and
nothing more. In our view, the aforesaid limited contention also, on the facts B
of the present case, cannot be of any assistance to the writ petitioner as the
earlier selection process itself had become infructuous and otios on the
abolition of the advertised posts, as we have seen earlier. The second point,
therefore, will have to be answered in the negative in favour of the appellants
and against the respondent-writ petitioner.

Point No. 3
c
As a result of our finding on Point No. 2 as a logical corollary and also
in the light of our discussion on Point No. 1 it has to be held that no fault
could be found with the Rajasthan opposite that Public Service Commission
in issuing fresh advertisement dated 08th January 1996 for recruiting eligible D
candidates from open matket for filling up 26 posts in the newly created cadre
of Marketing Officers under the Rules as amended in 1995. Point No. 3 is,
therefore, answered in the negative against the respondent-writ petitioner and
in favour of the appellants.

Point No. 4 E
As a result of our aforesaid findings on the first three points it must
be held that the writ petition filed by the respondent-writ petitioner was
rightly rejected by the learned Single Judge and was erroneously allowed by
the Division Bench of the High Court by tl1e impugned judgment.
F
In the result these appeals are allowed. The judgment and order of the
Division Bench are set aside and instead the decision rendered by the learned
Single Judge dismissing the writ petition of respondent-writ petitioner is
confirmed. In the facts and circumstances of tl1e case t11ere will be no order
as to costs.

V.S.S. Appeals allowed.