VIRENDRA SINGH RAJPUT Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE grievance of the petitioner is that he was granted permission to take part in the departmental promotion examination for promotion on the post of Head Constable (A). He was declared successful in the said examination and his name was listed in the list of successful candidates. However, since the said examination was conducted in the year 2010, the serial number of the petitioner could not reach for grant of appointment on promotion as Head Constable, treating as if the said list has lapsed, further proceedings were initiated for filling the posts, in view of the GOP No. 81/98 dated 02.04.1998. It is contended that once the process was completed according to the then existing GOP, the petitioner was enlisted for promotion, he could not have been denied the promotion only because subsequently another GOP was issued and that being so, the reliefs are claimed to the effect that the respondents be commanded to promote the petitioner on the post of Head Constable on account of his passing of the examination.

(2.) UPON issuance of the notices of the writ petition, a return has been filed by the respondents wherein they have contended that GOP No. 77/97 was not in force pertaining to promotion when the examination was conducted. The said GOP was superseded by GOP No. 81/98 which was issued on 02.04.1998. The GOP was again issued on 25.01.2005. The examination was conducted on 10.04.2012 and the select list was published vide Annexure R/1. The name of the petitioner was mentioned at serial No.34 of the said list. However, before implementation of the said list a new GOP was issued being GOP No. 138/12 on 14.08.2012. This being so, all the appointments by promotion were to be made in terms of the GOP so issued, as all earlier GOPs were superseded by the said GOP. It is contended that in view of this, there was no case made out to grant any relief to the petitioner and the writ petition was liable to be dismissed.

(3.) AFTER hearing learned counsel for the parties and after going through the record, it is clear that the respondents themselves have misconstrued the provisions of the new GOP. First of all it has to be seen that the examination according to the respondents was conducted on 08.04.2012 of which the result was published on 10.04.2012. The GOP was issued by the respondents on 14.08.2012 that is much after the completion of the process of conducting examination, therefore, the provisions of GOP No.138/12 which was not made with retrospective effect would not govern the field for promotion of the Constable as Head Constable through the Limited Competitive Examination which was conducted before coming into force of new GOP. It is the settled law that if the recruitment process is started under the relevant Rules which were in vogue at the relevant time, the same has to be completed under the said Rules even if the new Rules are framed subsequently. This particular aspect is considered by the Apex Court in the case of A.A. Calton, Vs. Director of Education and another, AIR 1983 SC 1143, and it has been categorically held that such process of recruitment is to be completed under the prevalent Rules when it was started. In the case of Vice -Chancellor, M.D. University Rohtak Vs. Jahan Singh, 2007 (5) SCC 77, the Apex Court has held that the retrospective operation of a Rule cannot be made unless specifically spelled out in the Rules itself. The right to be considered for promotion is a fundamental right and if such a consideration is done and a candidate is empaneled, the said panel is to remain in operation till it is exhausted.