WP(C) 2768/2010 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA All the writ petitions raise grievance relating to selection to the pos t of Enrolled Followers in the BSF. After the 6th CPC when the new recruitment rules came into force w.e.f. 14.08.2010 published vide official gazette dated 1 4.08.2011, the posts of Enrolled Follower stand upgraded to that of Constabulary . The case of the petitioners is that since they had participated in the recruit ment rally for the posts of Enrolled Followers before coming into force of the new recruitment rules, their cases are required to be considered on the basis of the earlier recruitment rules. The basic facts required for the purpose of appreciating the case of the petitioners are as follows: The respondent BSF by its employment notice dated 07.07.08 invited candi datures for filling up 66 (sixty six) posts of Enrolled Followers in the trade o f Cook, Wood Carrier, Washerman, Barber and Sweeper. The petitioners being eligi ble in terms of the requisite qualification laid down in the advertisement base d on earlier recruitment rules, offered their candidatures in acceptance of whic h they were invited for recruitment rally which was conducted on 11.09.08. In th e meantime, the CCS (Revised) Pay Rules, 2008 came into force which recommended for upgradation of the qualification prescribed from Class-VIII to Matriculation for entry in Govt. service. By the said recommendation, the post of Enrolled F ollower was recommended for upgradation to Constable (Tradesman). Pursuant to the aforesaid advertisement followed by recruitment rally an d participation of the petitioners therein, a merit list was prepared by the rec ruitment board. According to the petitioners, said merit list was prepared on 30 .09.08. It has also been asserted by the petitioners that the merit list was app roved by the competent authority on 05.10.08 When the petitioners were not offered with appointment, they started mak ing representations in response to which the respondents by their communication dated 13.08.09 intimated the petitioners that their case was pending for consid eration of the Ministry of Home Affairs. When the matter rested thus, the Minist ry of Home Affairs by its communication dated 29.10.09 issued directions for tak ing necessary steps for conversion of Enrolled Followers (Group-D) to that of Constable (Group-C) as per the aforesaid recommendation of the 6th CPC. Thereaft er the Director General, BSF by his letter dated 04.11.09 issued direction for i mplementation of the aforesaid directives of the Ministry of Home Affairs. By Annexure-II letter dated 01.12.09 annexed to the affidavit in opposition fil ed by the respondents in W.P.(C) No. 5820/2010 it was conveyed that pending fina lisation of the new RRs stated to be under preparation, the candidates who fulfi lled the requisite qualification/criteria as per revised RRs should be called fo r re-medical examination and after conducting such re-medical examination, fresh Board proceeding should be drawn up as per eligibility criteria laid down in th e revised RRs and thereafter to forward the same to the Headquarter. According t o the petitioners involved in W.P.(C) No. 5820/2010, they all conform to the req uirements of the new RRs and thus even Even otherwise also upon re-medical exami nation and redrawal of the Board proceeding, their case ought to have sent to t he Headquarter for consideration for appointment. Same is the plea in respect of some of the petitioners involved in other two writ petitions who also conform t o the requirement of the revised RRs. By letter dated 23.12.09, the petitioners were informed that after final isation of new RRs the Constables (Tradesman), i.e. erstwhile Enrolled Followers , the candidates who fulfilled the requisite qualification should be called for re-medical examination and the individual had to appear in all tests as per RRs before fresh board. It was at that stage writ petition being W.P.(C) No. 2464/20 10 was filed which was disposed of by order dated 28.04.2010 on the ground of be ing pre-mature. On perusal of the said order dated 28.04.2010, what is seen is t hat it was not discernible from the materials on record as to whether new recrui tment rules had already come into force before the selection process started. It was observed that if the new recruitment rules had already come into force befo re the selection process which commenced with publication of the aforementioned advertisement dated 02.08.08, same would be bad in law. It was also observed tha t the petitioners did not show that their selection was in terms of the relevant recruitment rules. It was in such a situation the writ petition was disposed of being pre-mature. In the present proceeding the petitioners have shown that the recruitmen t process started with its finalisation pursuant to the employment notice dated 07.07.08. There is absolutely no dispute that the particular selection was condu cted on the basis of the old recruitment rules. There is also no dispute that t he earlier selection has been cancelled by the respondents on the ground of comi ng into force of the new recruitment rules w.e.f. 14.08.2010 by which time the e arlier selection process was over with drawal of the merit list. According to the petitioners, the earlier recruitment process having bee n initiated and completed on the basis of the existing recruitment rules for the vacancies which were in existence during the said selection process, the said s election cannot be abandoned and/or cancelled on the ground of coming into force of the new recruitment rules w.e.f. 14.08.2010. Both Mr. R. Majumdar and Mr. P.K. Talukdar, learned counsel appearing for the pe titioners submit that the vacancies which arose prior to the new recruitment rul es enforced must be filled up as per the earlier recruitment rules and the righ ts that have accrued to the petitioners pursuant to their selection on the basis of the earlier recruitment rules, cannot be taken away on the basis of the new recruitment rules effective only from 14.08.2010. In the counter affidavit filed by the respondents, the aforesaid stand o f the petitioners has been denied. Upon a reference to the sand taken in the sai d affidavit, Mr. Baruah, Mr. Hussain and Mr. Buragohain, learned CGCS submit tha t since the particular decision for change of recruitment qualification and upg radation of the posts to Group-C posts was already there pursuant to the 6th CPC recommendation, which was eventually implemented in the form of recruitment ru les on 14.08.2011, the recruitment rally that was initiated in the interregnum c annot clothe the petitioners with any kind of right. They have submitted that al though the selection process was initiated on the basis of the earlier recruitme nt rules, but having regard to the 6th CPC recommendation which provided for upg radation of the posts from Group-D to Group-C , the candidates even if they fulf il the required qualification and other criteria as per new RRS cannot claim tha t they should be appointed in the upgraded posts. According to Mr. Majumdar and Mr. Talukdar, learned counsel appearing fo r the petitioners, the 6th CPC recommendation being only for upgradation of the posts, in case of giving effect to the earlier selection on the basis of the old recruitment rules, the only consequence will be upgradation of the selected ca ndidates, if they are appointed and the petitioners cannot be deprived of their benefits that has accrued to them pursuant to the earlier selection. They submi t that since the personnel without fulfilling the required qualification of Matr iculation as per new RR are already holding the post of Enrolled Followers and a re being upgraded to that of Constable (Tradesman), applying the same yardstick and parameters, in case of appointment of petitioners, they should also be upgra ded. According to them, the whole approach of the BSF authority in interpreting the directives of the Ministry of Home Affairs is wrong. Learned counsel for the petitioners have placed reliance on the decisions report ed in (1983) 3 SCC 284 (Y.V. Rangaiah and ors. vs. J. Sreenivasa Rao and ors.); (1990) 1 SCC 411 ( P. Mahendran vs. State of Karnataka); (1990) 3 SCC 157 (N.T. Bevin Kath etc. vs. Karnataka Public Service Commission and ors.) and (1992) 2 S CC 148 (Dr. P.K. Jaiswal vs Ms. Debi Mukherjee and ors.) to emphasise that if a selection is initiated on the basis of the earlier recruitment rules pertaining to existing vacancies, with the coming into force of new recruitment rules layi ng down new eligibility criteria, the earlier selection conducted cannot be aban doned on the basis of the new recruitment rules. In the aforesaid decisions, the Apex Court held that amended rules cannot be applied to invalidate the selectio n already made. In the instant case, the amendment to the rules is not with retrospective effect . As in the instant case, in the said decisions also the Apex Court was concerne d with the effect of the amendment to the recruitment rules during the pendency of the selection. In all the decisions, it was held that any amendment to the re cruitment rules cannot in any manner interfere with the earlier selection conduc ted on the basis of the un-amended recruitment rules for the vacancies which wer e in existence. The letter dated 01.12.09 (Annexure-II) annexed to the counter affidavit has bee n referred to above. In paragraph-3 of the said letter it was stated thus: 03. Keeping in vie of the instructions issued by MHA, all the board proceedings of recruitment of Class-IV staff are returned with the direction that on finali sation receipt of new RRs which is under preparation by Pers Section, FHQ, the c andidates who fulfils the requisite qualification/criteria as per revised RR be only be called for re-medical examination. After conducting re-medical examinati on, fresh board proceedings be drawn as per eligibility criteria as per revised RRs and forwarded to this HQ duly approved by the IG of Ftr/Head of RA concerned for obtaining approval of CA to issue call letter. It is on the above basis, Mr. Majumdar, learned counsel for the petition ers in W.P.(C) No. 5820/2010 has submitted that since the petitioners involved i n the writ petition are all Matriculate, their cases are required to be consider ed in terms of the aforesaid guidelines instead of forcing them to undertake ano ther recruitment process. Mr. P.K. Talukdar, learned counsel for the petitioners appearing in the other two writ petitions has made two fold submissions. Accord ing to first submission, some of the petitioners involved in the writ petition b eing Matriculate, their cases are require to be considered in terms of the said letter dated 01.12.09. So far as the other petitioners are concerned, Mr. Talukd ar submits that since the new recruitment rules came into force only on 14.08.20 10, the earlier selection should not have been abandoned which was conducted on the basis of the earlier recruitment rules for the existing vacancies. All the above aspects of the matter, in my considered opinion, require s erious attention of the BSF Headquarter. They will have to consider the effect o f the above quoted paragraph-3 of the letter dated 01.12.09 and also the plea of the petitioners that since the earlier recruitment rally was conducted in respe ct of the existing vacancies applying the earlier recruitment rules, the new rec ruitment rules cannot be applied against those posts. At this stage, learned CGSs submit that the earlier post of Enrolled Followers a re no longer in existence and thus, there is no question of filling up the said posts on the basis of the earlier recruitment rules. However, learned counsel fo r the petitioners submit that it is not a case of abolition of any posts, but what has been done is that the post of Enrolled Followers has been upgraded/conv erted to that of Constable (Tradesman). It is further submitted that in the even t of appointing the petitioners like that of other existing Enrolled Followers, they can also be converted to Constable (Tradesman). All the writ petitions are disposed of directing the respondent No. 2 to deal with the matter appropriately and then to pass a speaking order. If need b e, he may also consult with the Ministry of Home Affairs, i.e. respondent No. 1. Let the speaking order be passed as expeditiously as possible preferably within three months from today.