State of Orissa and Others vs State (Trysem) Live Stock Inspector Sangha and Others

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 8253 OF 2018 [ARISING OUT OF S.L.P. (CIVIL) NO. 34621 OF 2016]

STATE OF ORISSA AND OTHERS … APPELLANTS (S)

VERSUS

STATE (TRYSEM) LIVE STOCK INSPECTOR SANGHA AND OTHERS … RESPONDENT (S)

JUDGMENT

KURIAN, J.

1. Leave granted.

2. In direct recruitment to a post, whether qualification is to be

seen, with reference to the date of occurrence of vacancy or at the

time of recruitment, is the question arising for consideration in this

case.

3. The Orissa Non-Gazetted Veterinary Technical Service

(Recruitment and Conditions of Service) Rules, notified on 4 th

January, 1984 (referred to in the impugned Judgment as 1983 Signature Not Verified

Rules), provides for recruitment to two cadres - Veterinary Technician Digitally signed by JAYANT KUMAR ARORA Date: 2018.08.23 16:58:15 IST Reason:

and Livestock Inspector. 90 per cent of the posts of Livestock

Inspector is to be filled-up by direct recruitment and the remaining 2

10 per cent by promotion of Class IV field employees who are

matriculates and have field experience for two years in the

treatment of animals. Veterinary Technician post is filled-up by

promotion from the cadre of Livestock Inspectors. Rules 5 and 6 of

the 1984 Rules provide for the method of recruitment and selection

procedure. The Rules read as follows:

“Direct recruitment to the cadre of Livestock Inspector:- 5. Direct appointment to the posts in the cadre of Livestock Inspector’s shall be made by Director in order of merit out of the list of candidates successfully completed the training.

Selection of candidates for Livestock Inspector Training:- 6. In order to be eligible to undergo Livestock Inspector’s Training a candidate must fulfill the following conditions, namely:-

a) He must be citizen of India or a subject of Nepal/ Bhutan. Provided that the eligibility of persons other than citizen of India shall cease on such date as the Government may by or- der appoint in that behalf,

b) He must have passed either the class VII ex-

amination with Oriya as a subject or passed a test in Oriya in M.E. School standard con-

ducted by the Education department,

c) He shall be over eighteen years and below twenty seven years of age on the date of ad-

mission to the Livestock Inspector Training Center:

Provided that maximum age limit may be re- laxed by five years in respect of candidate be- longing to Scheduled Castes and Scheduled Tribes and to such extent in respect of candi- dates of such other categories as the Govern- ment may by general or special order specify from time to time, 3

d) He must have passed at least matriculation or equivalent examination of the Board of Sec- ondary Education of a recognized University,

e) He must be a good character,

f) He must be of sound health, good physique with height not less than 5’2” and chest unex-

panded 30” and must also be of active habits and be free from organic defects and physical and mental infirmity,

g) He must know cycling well,

h) He must not have more than on wife living,”

4. By Notification dated 19.09.1997, the 1984 Rules were

amended as per the Orissa Group ‘C’ Veterinary Technical Service

(Recruitment and Conditions of Service) (Amendment) Rules, 1997.

5. As per the amendment, the educational qualification,

which was previously “matriculation”, has been changed to

“Intermediate in Science or +2 Science or Higher Secondary

(Science) or such other equivalent examination or +2 Vocational

courses in the field of Animal Husbandry/ Dairy/Poultry/Meat/Animal

Production from a recognised educational

institution/Board/Council/University : Provided that candidates who

have passed +2 vocational courses shall be given preference while

selecting the candidates to undergo Live-Stock Inspector’s Training”.

6. There is also a proviso to the amendment that in case of the

candidates selected for training from amongst the Group ‘D’ field

employees. The required qualification is only “ Matriculation or

equivalent examination of the Board of Secondary Education, 4

Orissa”.

7. The High Court was of the view that there are two set of Rules –

1983 Rules and 1997 Rules. As we have noted above, there is only

one set of Rules notified on 4 th January, 1984, amended in 1997.

Unfortunately, the High Court, as per the impugned Judgment, took

it as two set of Rules. The High Court hence took the view that the

vacancies which existed prior to the 1997 amended Rules should be

filled-up as per the qualification which existed as per the 1984 Rules,

even if the recruitment is after the amendment. Thus aggrieved, the

State is in appeal.

8. Mr. Maninder Singh, learned Additional Solicitor General,

however, points out that the 1983 Rules having been amended in

1997, any direct recruitment, after the amendment, has to be made

in terms of the amended rules. The situation would have been

different in case of promotion where the persons aspiring for

promotion could have laid a claim for promotion in respect of the

vacancies available prior to the amendment. That is not the

situation in the present case. It is a case of direct recruitment. As

held by this Court in Union of India and another v. Yogendra

Singh1, in the case of direct recruitment, the candidate should

possess the qualification as per Rules which are in force at the time

of recruitment irrespective of the date of occurrence of vacancy. 1 (1994) Suppl. 2 SCC 226 5

9. Mr. R. P. Bhat, learned Senior Counsel appearing for the

respondents, has strenuously contended that the respondents are

people who have been sent for training imparted by the Government

under TRYSEM (Training Rural Youth for Self Employment) Scheme

for a period of one year during 1994 to 1997 and they have been

awaiting appointment as Livestock Inspectors/Veterinary Assistants,

etc., as per the then existing Rules of 1983. It is also submitted that

all those who have been trained under the project, have been

appointed as per the 1983 Rules with a qualification of

“matriculation”, prior to the introduction of amendment to the Rules

with effect from 1997. Therefore, it is contended that all the

vacancies which existed prior to the amendment in the Group ‘C’

cadre, should be filled-up with persons who have been trained under

the Scheme, as was done in the case of the previous batches. It is

also submitted that even under the amendment, there is a category

of people who have been found qualified for appointment with

matriculation and, therefore, the respondents should also be

considered since they also have the same qualification as

matriculation and training.

10. There cannot be any quarrel with the first principle in service

jurisprudence, that for direct recruitment, the qualification has to be

seen at the time of recruitment. In direct recruitment a lot of policy 6

issues are also involved. It is not mandatory that all such vacancies

should be filled up and if at all to be be filled up, should be filled up

as and when vacancies arise. Those are all matters left to the

conscious decision of the appointing authority. It is also open to the

competent authority to decide the mode and manner of selection

and prescribe the qualification and eligibility at the time of

recruitment. However, in the case of promotion, the incumbents are

entitled to stake a claim for vacancies which existed prior to the

amendment to be filled-up as per the un-amended rules. That is

based on the principle of legitimate expectation. Hence, we find it

difficult to appreciate the submission made by Shri R. P.Bhat, learned

Senior Counsel, that the qualification should be seen as on the date

of occurrence of vacancies, in the case of direct recruitment.

11. In Yogendra Singh (supra), this Court has dealt with the

similar situation and it has been held that “ No candidate who does

not possess the currently prescribed qualifications, but who may

possess the educational qualifications prescribed earlier, can be said

to qualify or have any vested right to appointment even against

some earlier unfilled vacancy. Every candidate who aspires to fill any

vacancy must possess the educational qualifications that are then

prescribed”.

7

12. The reliance placed by the High Court in Vinod Kumar Sangal

v. Union of India and others2, is of no assistance since it was a

case of promotion and bunching of vacancies for several years

where the requirement was in fact selection from panel prepared

year-wise.

13. No doubt, there is a proviso under the amended Rules that for a

candidate selected for training from amongst Group ‘D’ filed

employees, the qualification is only matriculation or equivalent. That

is a relaxation given under the Rules in respect of in-service

candidates for training followed by appointment. The respondents

are not in-service candidates. They can aspire for only direct

recruitment.

14. Thus, the view taken by the High Court that the appointment

will have to be made in terms of the Rules existing at the time of

occurrence of vacancy, for direct recruitment, placing wrong reliance

in Vinod Kumar Sangal (supra) does not reflect the correct legal

position. As we have already stated above, for promotees, they can

always stake a claim for promotion in respect of the vacancies

available prior to the amendment to be filled-up in terms of the

amended Rules. That is not the situation in the present case.

2 (1995) 4 SCC 246 8

15. Faced with such a situation, the learned Senior Counsel has

drawn our attention to the letter dated 01.12.2000 from the

Government of Orissa in the matter of employment of TRYSEM

Livestock Inspectors in various programmes in the Animal and Rural

Development Department. In that letter, the Government has made

it clear that the experience of the people for recruitment will have to

be seen, but the educational qualification has to be seen as on

December 1998, which is after amendment. However, the

Government has stated in the letter that the Department “ has to

formulate a specific project for absorption of 500 unemployed

TRYSEM trained youths which in long run will help in optimum

development of the Department” . It may be relevant to note that

the very appointment is from trained candidates. That being the

stand taken by the Government, as reflected in the letter, we make

it clear that it will be open to the respondents to make an

appropriate representation before the Government for relaxation of

the qualification in view of their training, in which case, the

Government will consider the same expeditiously. It will also be open

to the respondents to bring to the notice of the Government that

after training, they had actually been engaged as Livestock

Inspectors on various occasions.

9

16. Subject to the above, the impugned Judgment of the High Court

dated 18.07.2016 in Writ Petition (Civil) No. 24638 of 2011 is set

aside and the appeal is allowed. No costs.

……….......................J. [KURIAN JOSEPH]

...............................J. [SANJAY KISHAN KAUL]

NEW DELHI;

AUGUST 14, 2018.