Arunabha Saha vs State Of Tripura And Ors

By means of this petition the petitioner who has appeared for selection for the post of Inspector of Boilers, Group-A, Gazetted in the Factories & Boilers Organization under the Labour Department in the scale of pay of Rs.15600-39100/- (PB-4) Grade Pay of Rs.6800 (revised pay) in response to Advertisement No.01 of 2017, Annexure-4 to the writ petition, issued by the Tripura Public Service Commission, (in short, TPSC), the respondents No.3 and 4.

The petitioner on scrutiny of his application was found suitable and he was issued with the admit card for screening test with Roll No.000406 by the TPSC. In the screening test the petitioner was declared successful vide the notification dated 24.10.2017 issued by the TPSC, Annexure-8 to the writ petition. Thereafter, the petitioner was asked to appear in the personality test on 07.12.2017 in the TPSC Office, Agartala at 8.30 a.m. by the call letter dated 15.11.2017, Annexure-9 to the writ petition.

After the interview when the TPSC had been taking unexplained time for publication of the result then, the petitioner caused disclosure of reasons for such delay as would be apparent from the communication dated 10.12.2018, Annexure-11 to the writ petition, whereby the TPSC had categorically provided the following information:

"Tabulation of Interview marks is yet to be finalized and in the mean time the proposal for recruitment of the mentioned post was cancelled vide Notification No.F.11 (36)-Rectt/TPSC/2017 dated 22.11.2018 (copy enclosed) in pursuance of letter No.F.20(1)-GA(P&T)/18 dated 20.08.2018."

By the memorandum dated 20.08.2018, Annexure-12 to the writ petition, the GA(P&T) Department, Government of Tripura had communicated that in view of the New Recruitment Policy approved by the Government, all new appointments should be made as per the New Recruitment Policy and all existing recruitment processes initiated by the respective Departments or the TPSC shall stand cancelled excepting the ongoing recruitment of Tripura Judicial Service Grade-III only for which specific exemption has been accorded, in consultation with the Hon'ble High Court of Tripura. In terms thereof, the examination was cancelled by the Public Service Commission. The New Recruitment Policy as adopted by the Government of Tripura was published by the notification No.F.20(1)-GA(P&T)/18 dated 05.06.2018, Annexure-14 to the writ petition. The relevant part of the said notification is reproduced for purpose of reference.

"1.4 The Group-A, Group-B and C posts which are at present covered by T.P.S.C. will continue to be filled as per the existing practice. However, weightage for the interview should not exceed 10% of total marks. In exceptional case weightage of interview may be increased beyond 10% with the approval of cabinet, if sufficient justification exists."

It has been categorically provided that the above recommendation in the new employment policy which has been issued in suppression of the memorandum No.F.23(8)-GA(P&T)/14 dated 23.07.2016 has categorically provided the following clause:

"2. All the above recommendations will be applicable with prospective effect only."

Despite that the said memorandum dated 20.08.2018, Annexure-12 to the writ petition, has been issued.

The petitioner by filing this writ petition has challenged the memorandum dated 20.08.2018 in particular and urged this court to declare that the new recruitment policy does not have any application in the recruitment to the post of Inspector of Boilers as initiated by the TPSC Advertisement No.01 of 2014. It has been further urged that the respondents be directed to complete the process of recruitment in the post of Inspector of Boilers by fixing a definite time limit. That apart, the notification dated 22.11.2018, Annexure-13 to the writ petition, which is consequential, by which the recruitment processes have been cancelled, has also been challenged by the petitioner. It is apparent that the said notification dated 22.11.2018 was issued in terms of the memorandum dated 20.08.2018. According to the petitioner, the selection process was initiated on the basis of the recruitment rules framed under proviso to Article 309 of the Constitution of India and as such, the new recruitment policy as published by the notification dated 05.06.2018 cannot eclipse the recruitment rules for the post of Inspector of Boilers which was published by the Notification No.F.2(333)-FB/Estt/13/802-807 dated 19.05.2014 by the Labour Department clearly laying down the method, educational and other qualifications and the mode of selection. In this regard there is no dispute. Even the respondents did not raise any exception to such averment.

In reply to the writ petition, the respondents No.1 & 2 have categorically stated that the State Government has the inherent power to cancel the selection/recruitment process made by the TPSC as well as by other departments. Moreover, the State Government has framed the new recruitment policy by the said notification dated 05.06.2018 laying down the main objective of the said policy viz. to introduce a fair and transparent recruitment system so that the recruitment is done based only on merit. The respondents have suppressed the earlier recruitment policy as was adopted by the State Government and which was criticized by the High Court. That criticism has provided the basis to introduce the new recruitment policy. In this regard, they have further stated that after the amendment of the Rights of Persons with Disabilities Act, 2016, the recruitment policy was supposed to be revised but that was not done, but by the said new recruitment policy that has been done. That apart, the protection has been granted to the candidates who appeared in the cancelled recruitment processes by giving them one time relaxation in the upper age limit subject to documentary proof being produced of their participation in the earlier recruitment process.

However, the respondents No.3 and 4 have filed a separate reply clearly narrating the background of the cancellation of the process which has been already laid.

The petitioner by filing the rejoinder has stated that the new recruitment policy itself has espoused that the said policy will have the prospective operation but the respondents No.1 and 2 deviated from their own policy has given the said policy retrospective operation. The entire action is grossly arbitrary as no reasonableness has been revealed by the respondents No.1 and 2 how the examination conducted by the TPSC is not transparent or how the recruitment rules framed under proviso to Article 309 of the Constitution of India can be suppressed ipso facto. The petitioner has further succinctly submitted that the strength of Inspector of Boilers under the Labour Department (Factories & Boilers Organization) is two according to the recruitment rules published by the notification dated 19.05.2014 and as such, the question of reservation for the persons with disabilities (PWDs) is farfetched inasmuch as under 4% representation in the two posts there shall be no reservation of PWDs. Even the respondents did not illustrate how these two sanctioned posts can be utilized for such reservation.

Mr. T. D. Majumder, learned counsel appearing for the petitioner at the outset has submitted that the entire exercise is mindless, arbitrary, unreasonable and colourable exercise of power. He has further submitted that on numerous occasions, the apex court has ruled that even if the recruitment rules is amended in the midst of the selection process, such amendment rules will not have any impact in the ongoing selection process. But here, by the new recruitment policy which is a pure executive fiat under Article 162 of the Constitution of India and as such, the recruitment rules framed under proviso to 309 of the Constitution of India cannot be either amended by the said policy nor it can otherwise have any impact in the selection process. To buttress his point, Mr. T. D. Majumder, learned counsel has relied on a decision of the apex court in P. Mahendran and others vs. State of Karnataka and others reported in (1990)1 SCC 411 where the apex court has enunciated the law as under:

"3. Meanwhile, the State Government of Karnataka amended the Recruitment Rules by a Notification dated May 4, 1987 published in the Gazette on May 14, 1987 omitting the qualification of Diploma in Mechanical Engineering for the post of Motor Vehicle Inspectors. Consequent to the amendment of Rules the holders of Diploma in Automobile Engineering became exclusively eligible for appointment to the post of Motor Vehicle Inspectors and the holders of Diploma in Mechanical Engineering ceased to be eligible for selection and appointment to the said post. Some of those candidates who were unsuccessful at the selection held by the Commission preferred applications before the Karnataka Administrative Tribunal at Bangalore for quashing the select list prepared by the Commission and also for quashing the Notification dated September 28, 1983 inviting applications for appointment to the post of Motor Vehicle Inspectors on the ground that after the amendment of Rules in 1987, no person holding the Diplo-ma in Mechanical Engineering was qualified for appointment, therefore fresh selection should be made in accordance with the amended Rules. The State Government of Karnataka as well as the appellants both contested the applications and asserted that the 1987 amendment to the Recruitment Rules were not retrospective instead the amendments were prospective and the amended Rules did not affect the selections which were in the process of finalisation by the Commission. The Tribunal held that after the amendment of the Recruitment Rules in May, 1987 the Commission could not make selection or determine the result on the basis of the Rules which existed prior to May 14, 1987 and as such the selection of candidates holding Diploma in Mechanical Engineering was illegal as holders of Diploma in Mechanical Engineering ceased to be eligible for appointment to the post of Motor Vehicle Inspectors with effect from the date of publication of the amending Rules. On these findings the Tribunal allowed the applications and quashed the advertisement issued under the Notification dated September 28, 1983 as well as the select list published by the Public Service Commission and it further issued directions to the Public Service Commission to invite fresh applications and to make selections in accordance with the amended Rules. Aggrieved, the appellants who had been selected by the Commission for appointment to the posts of Motor Vehicle Inspectors have preferred appeal before this Court. Some of the selected candidates have directly approached this Court by means of writ petition under Article 32 of the Constitution for issue of mandamus directing the State Government to appoint the selected candidates.

There is no dispute that under the Recruitment Rules as well as under the advertisement dated October 6, 1983 issued by the Public Service Commission, holders of Diploma in Mechanical Engineering were eligible for appointment to the post of Motor Vehicle Inspectors alongwith holders of Diploma in Automobile Engineering. On receipt of the applications from the candidates the Commission commenced the process of selection as it scrutinised the applications and issued letters for interview to the respective candidates. In fact the Commission commenced the interviews in August 1984 and it had almost completed the process of selection but the selection could not be completed on account of interim orders issued by the High Court at the instance of candidates seeking reservation for local candidates. The Commission completed the interviews of all the candidates and it finalised the list of selected candidates by June 2, 1987 and the result was published in the State Gazette on July 23, 1987. In addition to that the selected candidates were intimated by the Commission by separate letters. In view of these facts the sole question for consideration is as to whether the amendment made in the Rules on May 14, 1987 rendered the selection illegal. Admittedly the amending Rule does not contain any provision enforcing the amended Rule with retrospective effect. In the absence of any express provision contained in the amending Rule it must be held to be prospective in nature. The Rules which are prospective in nature cannot take away or impair the right of candidates holding Diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment. In fact the entire selection in the normal course would have been finalised much before the amendment of Rules, but for the interim orders of the High Court. If there had been no interim orders, the selected candidates would have been appointed much before the amendment of Rules. Since the process of selection had commenced and it could not be completed on account of the interim orders of the High Court, the appellants' right to selection and appointment could not be defeated by subsequent amendment of Rules.

It is well-settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter." [Emphasis added]

The apex court has unambiguously held that unless it is expressly or by necessary implication made to have retrospective effect it is well settled rule of construction that every statute or statutory rule is prospective.

It has been further observed in P. Mahendran (supra) as follows:

"In view of the above the appellants' selection and appointment could not be held as illegal as the process of selection had commenced in 1983 which had to be completed in accordance with law as it stood at the commencement of the selection. The amended Rule could not be applied to invalidate the selection made by the Commission. Strangely the Tribunal did not follow the latest authority of this Court as laid down in Calton's case : [1983]3 SCC 33, on the ground that the view taken in that case was contrary to the Constitution Bench decision of this Court in State of Andhra Pradesh v. T. Ramakrishna Rao, [1972] 2 SCC 830. We have carefully considered the decision but we do not find anything therein contrary to the view taken in Calton's case."

It has been further observed that in P. Mahendran (supra) as follows:

"8. In Ramakrishna Rao's case the State Public Service Commission of Andhra Pradesh had invited applications in 1968 for the posts of District Munsifs. Rule 5 of the Recruitment Rules empowered the Commission to prepare a list of persons considered for the appointment to the post of District Munsifs after holding such examination as the Government would consider necessary. On a challenge made by some of the candidates the High Court held that Rule 5 was void as it empowered the Government to determine whether an examination was necessary or not, and also the pattern of such an examination, in contravention of Article 234 of the Constitution. The High Court further held that the Government orders, pursuant to the said Rule for holding of examination by the Commission was also void, having been issued under invalid Rules. Pursuant to the judgment of the High Court the Governor amended Rule 5 after consultation with the High Court and the Commission as enjoined by Article 234 of the Constitution. The Commission thereafter issued advertisement inviting fresh applications to hold examination for the purpose of filling vacancies in the post of District Munsifs, thereupon some of the candidates who had made applications in pursuance to the advertisement issued in 1968 challenged the validity of the holding of the fresh examination on the ground that since they had applied in response to the advertisement of 1968 they could not be subjected to written examination under the amended Rule as it was prospective in nature. They further asserted that the amended Rule prescribing 200 marks for written test and equal number of marks for oral test was contrary to the earlier Rules and since they had acquired right to be considered in accordance with Rule 5 before its amendment, they should not be subjected to written examination and oral test as required by the amended Rules. The High Court partly allowed the petition and directed the Commission to hold a separate examination for those who had applied in 1968 in accordance with the un-amended Rules and further to hold a separate examination for the subsequent vacancies in accordance with the amended Rule 5. On appeal by the State Government, a Constitution Bench of this Court set aside the order of the High Court. This Court held that since Rule 5 as it stood in 1968 had been declared void the advertisement issued by the Commission inviting applications and all proceedings taken by the Commission including the examination held thereunder was rendered void. In this context this Court made observation that those candidates who had made applications in 1968 had not acquired any fight as their applications had been made under a Rule which had been declared invalid. The Court further held that in the facts of that case the question whether amended Rule 5 was retrospective or prospective did not arise. The Court observed as under:

"Secondly the respondents had not acquired any right by merely applying for the posts either under that rule or otherwise, to be selected for the posts. The Commission, therefore, was perfectly justified in treating the earlier applications of the respondents as invalid on the ground that they had been invited under an illegal rule and calling for fresh applications and holding a fresh examination in respect of all the 200 vacancies. There was thus no question of any breach of Article 16 nor of any violation of any right of the respondents as none was acquired by them. Equally, there was no question of the amended Rule 5, being prospective or retrospective as the Commission had to act afresh under the amended Rule, the un-amended rule having been struck down and there being therefore no basis on which the applications of the respondents made in 1968 could be treated as valid applications."

The above observations as relied by the Tribunal do not apply to the facts of the instant case as the advertisement issued by the Commission on 28.9.1983 was in accordance with the Recruitment Rules of 1976, validity of those Rules was not in question. The Rule prescribing qualification was amended after four years of the advertisement, therefore the law laid down in Ramakrishna Rao's case does not apply. The Tribunal committed error in ignoring the law laid down in Calton's case by placing reliance on the observations of this Court in Ramakrishna Rao's case. In our view the principles laid down in Calton's case are fully applicable to the instant case.

In Y. Y. Rangaiah v. J. Sreenivasa Rao, [1983] 3 SCC 284 the question was whether appointment could be made out of the list of approved candidates prepared by the appointing authority against the vacancies which had occurred prior to the amendment of the rules. The Andhra Pradesh Registration and Subordinate Service Rules made provision for the preparation of a list of approved candidates for appointment and promotion in the month of September every year. In 1976 the list of approved candidates was not prepared meanwhile in 1977 the original rules were amended providing for promotion or transfer to the category of LDCs for appointment as Sub-Registrars Grade II from amongst UDCs employed in the Registration and Stamp Department. A list of approved candidates for promotion was made in accordance with the amended Rules and appointments were made as a result of which some of the juniors in the category of LDCs were promoted as Sub-Registrars Grade II. The Andhra Pradesh Tribunal set aside the appointments and directed the State Government to draw a fresh panel for the year 1976-77 in respect of vacancies arising during that year in accordance with the rules as they existed at that stage and to make appointments in the vacancies pertaining to that period on the basis of the panel so drawn. On appeal this Court held that the vacancies which occurred prior to the amended Rules would be governed by the old Rules and not by the amended Rules. The decision does not lay down anything which may be contrary to the view taken in Calton's case.

We would now consider the view taken by this Court in l. J. Divakar v. Government of Andhra Pradesh, [1982] 3 SCC 34 1 as the Tribunal has placed strong reliance on the observations made in that decision in setting aside the selection made by the Public Service Commission. It is necessary to ascertain the facts involved in Divakar's case. The Andhra Pradesh Public Service Commission invited applications for filling posts of Junior Engineers. In response to the advertisement several candidates applied for the said post and appeared at the viva voce test. While the Commission was in process of finalising the select list, the Government of Andhra Pradesh issued a Government Order under the proviso to Article 320(3) of the Constitution excluding the posts of Junior Engineers from the purview of the Public Service Commission. The Government regularised the services of all those who were appointed by direct recruitment to the post of ad-hoc Junior Engineers and were continuing in service on August 9, 1979 without subjecting them to any test written or oral. The candidates who had applied in response to the advertisement issued by the Commission challenged validity of the Government Order excluding the post of Junior Engineers from the purview of the Commission and also the validity of the decision by the Government to regularise the services of temporary employees. Before this Court the Government's power of framing regulations excluding any post from the purview of the Commission under the proviso to Article 320(3) was conceded. It was, however, urged that since the advertisement had been issued by the Commission inviting applications for the posts of Junior Engineer and as the Commission was in process of selecting candidates the power under the proviso to Clause (3) of Article 320 of the Constitution could not be exercised. This Court rejected the contention with the following observations:

"The only contention urged was that at the time when the advertisement was issued the post of Junior Engineer was within the. purview of the Commission and even if at a later date the post was withdrawn from the purview of the Commission it could not have any retrospective effect. There is no merit in this contention and we are broadly in agreement with the view of the Tribunal that inviting the applications for a post does not by itself create any right to the post in the candidate who in response to the advertisement makes an application. He only offers himself to be considered for the post. His application only makes him eligible for being considered for the post. It does not create any right in the candidate to the post."

After making the aforesaid observations the Court further held that the relevant service Rules conferred power on the Government to fill emergently the vacancies to the post borne in the cadre of service otherwise than in accordance with the rules and therefore the Government had power to regularise temporary appointments made without the consultation of the Public Service Commission. Even after upholding the Government order, the Court directed the Commission to consider the case of all those candidates who had applied for the post of Junior Engineers in response to the advertisement issued by the Commission and to finalise the select list on the basis of viva voce test and to forward the same to the Government. The Court further directed the Government to make appointments from the select list before any outsider was appointed to the post of Junior Engineers. Thus, the observations made by this Court as quoted earlier were made in the special facts and circumstances of the case, which do not apply to the facts of the instant case. In Divakar's case since the jurisdiction of the Public Service Commission had been denuded by the Government in exercise of its constitutional power the Commission had no jurisdiction to conduct selection or prepare select list. In this background the Court made observations that a candidate merely by making applications does not acquire any right to the post. It is true that a candidate does not get any right to the post by merely making an application for the same, but a right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules. If a candidate applies for a post in response to advertisement issued by Public Service Commission in accordance with recruitment Rules he acquires right to be considered for selection in accordance with the then existing Rules. This right cannot be affected by amendment of any Rule unless the amending Rule is retrospective in nature. In the instant case the Commission had acted in accordance with the then existing rules and there is no dispute that the appellants were eligible for appointment, their selection was not in violation of the recruitment Rules. The Tribunal in our opinion was in error in setting aside the select list prepared by the Commission." [Emphasis added]

The apex court has clearly curved out the law that if a candidate applies for a post in response to an advertisement issued by the Public Service Commission in accordance with the recruitment rules, he acquires a right to be considered for selection in accordance with the existing rules. This right cannot be affected by amendment of any rule unless amendment rule is retrospective in nature. In the case in hand, there is no amendment in the recruitment, neither the policy has been given retrospective operation.

Mr. T. D. Majumder, learned counsel for the petitioner has submitted that the new recruitment policy has espoused to be prospective in nature. Therefore, the cancellation in terms of the new recruitment policy even though it cannot abrogate the provision of the recruitment rules is grossly arbitrary, illegal and unconstitutional in view of P. Mahendran (supra). Mr. Majumder, learned counsel has further relied on a decision of the apex court in Bishnu Biswas and others vs. Union of India and others reported in (2014)5 SCC 774. The said decision has been pressed into service for demonstrating that there is no straight-jacket formula in allocating marks for the interview. The apex court in Bishnu Biswas (supra) has observed as follows:

"The appropriate allocation of marks for interview, where selection is to be made by written test as well as by interview, would depend upon the nature of post and no straight-jacket formula can be laid down. Further there is a distinction while considering the case of employment and of admission for an academic course. The courts have repeatedly emphasized that for the purpose of admission in an education institution, the allocation of interview marks would not be very high but for the purpose of employment, allocation of marks for interview would depend upon the nature of post."

In the technical post such as Inspector of Boilers this is more important to test the aptitude and the depth of the subject by way of interview.

In reply, Mr. D. Sharma, learned Addl. GA strenuously argued that the State Government has inherent power to cancel any selection at any point of time, and as such with the change of the policy the respondents No.1 and 2 have not acted arbitrarily by cancelling the selection process for recruitment of Inspector of Boilers. Mr. Sharma, learned Addl. GA appearing for the respondents has not disputed any fact as averred by the petitioner. Mr. Sharma, learned Addl. GA has referred a few decisions of the apex court in support of his contention. In Shankarsan Dash vs. Union of India reported in (1991)3 SCC 47 a constitution bench of the apex court has observed as follows:

"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899.

In State of Haryana v. Subhash Chander Marwaha and Others, (supra) 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55% marks, were appointed, although under the relevant rules the eligibility condition required only 45% marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55% marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the Government to decide how MANY appointments should be made and although the High Court had appreciated the position correctly, it had ``somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies''. It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jitendra Kumar and Others v. State of Punjab and Others, was turned down holding that it was open to the Government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was had that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Miss Neelima Shangla v. State of Haryana was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the Government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The Government accordingly made only 17 appointments and stated before the Court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and there must be a conscious application of mind by the Government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant. [Emphasis added]

Mr. Sharma, learned Addl. GA has further relied on Hardev Singh vs. Union of India & Anr. reported in (2011)10 SCC 121 where the apex court has again observed in the similar tune as follows:

"8. According to the learned counsel, if the earlier policy based on `value judgment' had been followed by considering overall profile of the appellant, the appellant would have been selected for promotion to the rank of Lieutenant General. According to him, the appellant, who was an outstanding officer, ought to have been promoted to the rank of Lieutenant General.

In substance, the counsel submitted that the entire procedure followed by the SSB was incorrect and the appellant and the officers of 1973 batch ought to have been assessed as per old policy and in that event, the appellant would have been found fit for promotion and, therefore, it was submitted that the appellant deserved promotion to the rank of Lieutenant General. It was further submitted that the appellant retired on 30.4.2010 but had he been promoted to the rank of Lieutenant General, he would not have been made to retire. Finally, he submitted that the appeal deserves to be allowed and relief sought for in the appeal be granted.

On the other hand, Mr. P.P. Tripathi, learned Additional Solicitor General submitted that the judgment delivered by the Tribunal is just and proper. He submitted that Indian Army is having a pyramidal organisation and it has framed its promotion policy accordingly. Till 15th December, 2004, promotions up to the rank of Major were given on the basis of seniority whereas promotions from the rank of Major to Lieutenant General and onwards were strictly on merit and they were given promotion on the basis of recommendations of a Selection Board. However, as per the new policy, at present promotions upto the rank of Lieutenant Colonel are by time scale and thereafter the promotions to higher ranks are given on the recommendation of the Selection Board."

This judgment has been pressed in service for showing that the selection done as per new recruitment policy, midst of the process was not interfered by the apex court in the context of that case.

In State of Punjab & Ors. vs. Ram Lubhaya Bagga & Ors. reported in (1998)4 SCC 117 the apex court had occasion to observe as under:

"28. The new policy does not leave this fixation to the sweet will of the Director but it is to be done by a Committee of technical experts.

"The rate for a particular treatment would be included in the advice issued by the District/State Medical Board. A Committee of technical experts shall be constituted by the Director, Health and Family Welfare, Punjab to finalize the roles of various treatment packages......"

No State of any country can have unlimited resources to spend on any of its project. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizen including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India.

In Vincent vs. Union of India: AIR (1987) SC 990:

"In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health..... In a series of pronouncements during the recent years, this court has culled out from the provisions of Part- IV of the Constitution, the several obligations of the State and called upon it to effectuate them in order that the resultant picture by the constitution fathers may become a reality."

The next question is whether the modification of the policy by the State by deleting its earlier decision of permitting reimbursement at the Escort and other designated hospital's rate is justified or not? This of course will depend on the facts and circumstances. We have already held that this court would not interfere with any opinion formed by the government if it is based on relevant facts and circumstances or based on expert advice.

Any State endeavor for giving best possible health facility has direct co-relation with finances. Every State for discharging its obligation to provide some projects to its subject requires finances. Article 41of the Constitution gives recognition to this aspect.

"41. Right to work, to educate and to public assistance in certain cases: The State shall, within the limits of its economic capacity and development, make effective provisions for securing the right to work, to education and to public assistance in cases of unemployment, old age sickness and disablement, and in other cases of undeserved want." (emphasis supplied)

It is submitted by the appellants that earlier under the 1991 policy, for bringing in some of the designated Hospital for treatment, sanction from Finance department was obtained. Later upon an appraisal of its expenditure it was found that the bulk of the States budget was being taken by few elites for such treatment like Heart ailment etc. to the detriment of large number of other employees who suffered. hence on the advise of the Finance department by means of order dated 9th September, 1994 the facility of reimbursement of full charges at designated hospital was withdrawn even under the old policy of 1991 from 9-9-1994."

Mr. Sharma, learned Addl. GA has relied on another decision to show that the State Government has the power to revise the policy decision in the interest of public and nobody can challenge such authority of the State for any particular right. In P. U. Joshi & Ors. vs. Accountant General, Ahmedabad & Ors. reported in (2003)2 SCC 632 as relied by Mr. Sharma, learned Addl. GA, the apex court has observed as under:

"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."

P. U. Joshi (supra) has been relied by Mr. Sharma, learned Addl. GA for only reason that it enunciates that there is no right in any employee of the State to claim that rules governing conditions of his service should forever be the same as the one when he entered the service for all purposes. Except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force, new rules relating to even an existing service rules. This decision is irrelevant in the context for two reasons viz. (1) the petitioner has, in the entire writ petition, not challenged the competence of the State Government to adopt any policy including the policy in respect of the employment and (2) that the petitioner is not an employee and as such the principle as culled out in the reproduced passage cannot be applied in the present context.

The decision of the apex court in Union of India vs. Pushpa Rani & Ors. reported in (2008)9 SCC 242 has no relevance in the present context, even though Mr. D. Sharma, learned Addl. GA has relied it to show that the State has got the ample power to make rules, regulating the recruitment and conditions of service of persons. Even such power can be exercised for bringing about the appropriate legislation or policy. The passage as reproduced hereunder has been referred for no intelligible purpose:

"24. In A.K. Subraman and Others vs. Union of India and Others [1975 (1) SCC 319], a three Judges Bench of this Court while interpreting the provisions contained in Central Engineering Service, Class I, Recruitment Rules, 1954, observed as under :

"The word "grade" has various shades of meaning in the service jurisprudence. It is sometimes used to denote a pay scale and sometimes a cadre. Here it is obviously used in the sense of cadre. A cadre may consist only of permanent posts or sometimes, as is quite common these days, also of temporary posts."

The contention of Mr. Sharma, learned Addl. GA is that the State Government has the competence to frame new recruitment policy by revising the old recruitment policy in the public interest and it has competence to revoke or cancel the recruitment process at its discretion and nobody can question that authority of the State Government and hence the petitioner does not have any locus standi to challenge the memorandum dated 20.08.2018 issued in pursuance to the new recruitment policy published under the notification dated 05.06.2018 or the cancellation notification of the Public Service Commission dated 22.11.2018.

Having appreciated the submission made by the learned counsel for the parties, this court is confronted with a solitary question whether there is any tangible rationality for cancellation of the recruitment process as initiated by the TPSC Advertisement No.1-2017, Annexure-4 to the writ petition, for recruitment to the post of Inspector of Boilers, Group-A Gazetted. If it is located that there is no reason for such revocation, whether in that context, this court can direct the respondents No.3 and 4 to complete the selection process. In the similar circumstances, this court in Samudra Debbarma vs. State of Tripura & Ors. [judgment dated 14.05.2019] had occasion to observe that the scope of judicial review is limited to oversee the State action for the purpose of satisfying that it is not vitiated by vice of arbitrariness. The wisdom of the policy or the lack of it or the desirability for a better alternative does not fall within the permissible scope of judicial review. It is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by showing that the act which has done and challenged was fair and reasonable in the facts and circumstances of the case, the Constitution courts will refrain from exercising the power of judicial review. The power of judicial review is limited to the ground of constitutionality, irrationality and procedural impropriety. In the case of arbitrariness, the defect of rationality is obvious. It has been observed in the advent of the new recruitment policy dated 05.06.2018 and the memorandum dated 20.08.2018 in Samudra Debbarma (supra) as under:

"...............this court finds that the respondents No.1 and 2 have utterly failed to provide any reason for cancelling the recruitment process inasmuch as no foundation has been raised to show that action has been taken to protect any greater or public interest the mode prescribed by those service rules for selection is infested impediment in following that procedure. When the law is well enunciated and settled if any change in the recruitment rules is made in the midst of the process that cannot be given a retrospective operation to apply that change or the amended rule in the pending selection process. That apart, when the conflict between the provisions of the subordinate legislation as enacted under proviso to Article 309 of the Constitution of India is eminent with the executive action (the new recruitment policy and the impugned memorandum), there cannot be any amount of hesitation that the provision of the subordinate legislation so far the allotted marks for the personality test is concerned would prevail. Therefore, the State action as aforestated is grossly arbitrary, irrational and predominantly unfair. However, the new recruitment policy may apply where the recruitment rules are not in force and where the recruitment rules are amended in accordance with the executive instructions, consolidated in the new recruitment policy. Since there is no dispute that the TCS Rules, 1967 and TPS Rules, 1967 are not amended by the competent authority as yet with consultation with the TPSC, the cancellation of the recruitment process as initiated by the advertisement No.04/2016 (Annexure-1 to the writ petition) is liable to be interfered by this court on the above grounds and, accordingly it is interfered."

The same analogy and the principle is applicable in the present case. Moreover, in P. Mahendran (supra) the apex court has categorically stated that if a candidate applies for a post in response to the advertisement issued by the Public Service Commission in accordance with the recruitment rules, he acquires a right to be considered for selection in accordance with the then existing rules. This right cannot be affected by amendment of any rule unless the amending rule is retrospective in nature. The new recruitment policy has been given consciously the prospective operation and as such this court is of the view that memorandum dated 20.08.2018, Annexure-12 to the writ petition and the notification dated 22.11.2018, Annexure-11 to the writ petition so far the selection of Inspector of Boilers is concerned are grossly unreasonable, arbitrary and unsustainable and hence those are accordingly interfered with and set aside as far as the selection of the Inspector of Boilers under the Factories & Boilers Organisation, Labour Department is concerned.

Having observed thus, the respondents No.3 and 4 are directed to complete the selection process, publish the result and make the recommendation to the respondents No.1 and 2 within a period of two months from the date when the petitioner shall furnish a copy of this order to the respondent No.4.

In the result, the writ petition stands allowed to the extent as indicated above.

There shall be no order as to the costs.