Judgment:
1. The question to be considered in this OA is whether the applicant has a right of appointment to the post of Senior Public Prosecutor in the Central Bureau of Investigation (CBI) on the basis of his selection by the Union Public Service Commission (UPSC despite the fact that new Recruitment Rules have come into force.
2. The facts first. The applicant was initially appointed as Assistant Public Prosecutor under the Andaman and Nicobar Administration and he joined on 19.10.84. He was appointed as Public Prosecutor on deputation basis in the CBI w.e.f. 7.8.95 after his selection through the UPSC of a period of four years or until further orders. When the applicant was on deputation with the CBI, the Deptt. of Personnel and Training, Govt.
of India issued a vacancy circular inviting applications for the post of Senior Public Prosecutor (Sr. PP) in the CBI on deputation basis or on transfer basis video Memo dated 7.9.98. The applicant having the requisite qualification and having fulfilled eligibility criteria, applied for the said post of Sr. PP through proper channel on transfer basis (permanent absorption) on 23.9.98. The CBI authorities obtained vigilance and Integrity clearance etc. From the A and N Administration video Memo dt. 22.10.98. The A and N Administration gave their "No Objection" certificate in favour of the applicant for appointment to the post of Sr. PP on transfer basis vide letter dt. 19.3.99. The applicant appeared before the UPSC on the date fixed for the purpose of interview and answered the questions put to him. In the meanwhile, the deputation period of the applicant to the CBI was also extended by his parent Deptt. i.e., A and N Administration.
The applicant's case is that he had been selected by the UPSC for the post, yet inordinate delay was caused in his appointment to the post of Sr. PP. He, therefore, made a representation dated 17.7.2000 praying for issuance of letter of appointment in his favour early. He was informed vide communication dt. 18.8.2000 that his case of appointment as Sr. PP in the CBI on transfer basis was under process. Since no order of appointment was received by the applicant, he made another representation on 6.11.2000 whereupon he was informed vide communication dt. 29.11.2000 that his case for appointment as Sr. PP.in the CBI on transfer basis was pending with the UPSC of advice. When no appointment order was issued to him, the applicant made a representation to the President of India. After sometime, he came'to know that the authorities were making attempt to change the Recruitment Rules for the post of Sr. PP and they sought advice from the UPSC in this regard.
It has been averred that the post was advertised on the basis of the existing Recruitment Rules and the applicant was selected by the UPSC before the enforcement of the new Recruitment Rules, and therefore, he has a right of appointment to the post of Sr. PP. It has been prayed that the respondents be given direction to give appointment to the applicant on the post of Sr. PP. in the CBI is terms of the selection made by the respondents.
3. In reply, the respondents have resisted the claim of he applicant.
It has been stated that the UPSC had recommended appointment of the applicant as Sr. PP on transfer basis in the scale of Rs. 8000-13500/- vide letter dt. 8.10.99, but before the applicant could be formally appointed by the Department, the said post was upgraded w.e.f. 1.1.96 by the DOPT vide their letter dt. 14.3.2000 and placed in a higher scale of Rs. Rs. 10000-15200. The Recruitment Rules for the post were also revised and notified by the Department vide notification dated 27.2.2001. It has been stated that the applicant does not have a right to claim appointment on the post of Sr. PP because he was recommended by the UPSC for the post in the scale of Rs. 8000-13500/-, as the post has since been upgraded and placed in a higher scale of Rs. 10000-15200/-. It has also been stated that in the revised Recruitment Rules the eligibility criteria for the post of Sr. PP has been changed and the applicant may apply for the post afresh when applications are called by the concerned Department. It has also been stated that DOPT has already invited applications of suitable officers of Central/ State Governments for filling up the upgraded post of Sr. PP in the CBI on transfer basis vide circular dated 25.7.2001.
4. In the rejoinder, the applicant has reiterated the facts stated in the O.A. It has been stated that the new Recruitment Rules have been notified on 27.3.2001, but on the date the UPSC recommended his name for appointment as Sr. PP i.e., on 8.10.99, the old Recruitment Rules were applicable and the applicant has a right to get appointment on that basis.
5. We have heard the learned Counsel for the parties and perused the documents placed on record.
6. Mr. De, ld. Counsel for the applicant vehemently contended that after the selection of the applicant by the UPSC, a right has been created in the applicant to get appointment on the post of Sr. PP. He urged that only because the pay scale of the post has been revised, the applicant cannot be deprived of his right of appointment. His further contention was that in the new Recruitment Rules of 2001, actions taken on the basis of existing Recruitment Rules of 1980 have been saved and the applicant, is therefore, entitled to be appointed on the post.
Pointing out that according to the reply, only formal order of appointment was to be issued and the entire selection process had already been completed before the enforcement of the new Recruitment Rules, he canvassed that the applicant has a right to be appointed on the basis of his selection made, much before the enforcement of the new Rules. He relied on the cases of Y.V. Rangaiah v. J. Srenivasa Rao, AIR 1983 SC 852, P. Mahendran and Ors. v. State of Karnataka and Ors., AIR 1990 SC 405=1990(1) SLJ 48 (SC), Amalapuram Municipal Council v. U.Simhadri, 1996(10) SCC 657=1996(3) SLJ 99 (SC), and N. T. Bevin Kati etc. v. Karnataka Public Service Commission and Ors., AIR 1990 SC 1233 and the cases referred to in those Rulings in support of his contentions.
Mr. De emphasised that the respondents cannot justify their action of denying appointment to the applicant on the basis of the letter of the UPSC dated 15.12.2000, as wrong facts had been stated in the said letter that the post had been upgraded and the Recruitment Rules had been revised, whereas by that time, the Recruitment Rules had not been revised.
7. Per contra, the Id. Counsel for the respondents contended that mere selection to the post did not confer a right of appointment on the applicant. He urged that before the appointment orders were issued, the Recruitment Rules have been changed, and therefore, now appointment can be made only on the basis of the eligibility criteria laid down in the new Recruitment Rules. He submitted that the applicant had applied for the post which related to the pay scale of Rs. 8000-13500/- whereas now the pay scale of the post is Rs 10000-15200/-, and therefore, the applicant does not have a right on the post on the basis of his selection made by the UPSC. He placed reliance on the cases of Jai Sing Dalai v. State of Haryana and Ors., 1993 SCC (L&S) 846), Rajasthan Public Service Commission v. Chanan Ram and Anr., JT 1998(2) SC 114=1998(2) SLJ 226 (SC), and Sri Surya Kumar Das etc. v. State of Assam and Ors, 2001(3) SLR 195, and the cases referred to in those Rulings.
9. It is not in dispute in this case that the applicant had applied for the post of Sr. PP through proper channel and that "No Objection" certificate was given by his parent Deptt, i.e., A and N Administration that the applicant could be appointed to the post of Sr. PP in the CBI on transfer basis. It is also no more in dispute that the UPSC, which is the Selection Authority for the post, had recommended the applicant for appointment as Sr. PP in the CBI on transfer basis vide letter dt.
8.10.99, and thereafter, the suitability report was also given in favour of the applicant. The applicant, however, could not be appointed for one or the other reason and, in the meantime, the new Recruitment Rules, known as, Central Bureau of Investigation (Legal Advisers and Prosecutors) Recruitment Rules, 2001 came into force w.e.f. 27.3.2001.
10. The question for consideration is whether the applicant has a right of appointment on the post of Sr. PP on the basis of his selection by the UPSC under the old Recruitment Rules.
11. We have gone through the decisions relied on by the Id. Counsel for the parties. We have also read the judgements referred to in those decisions. Those decisions may be studied before we decide the case on merits.
(i) The earliest decision on the subject is the case of S.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942 rendered by aConstitution Bench. The facts in that case were that notifications had been issued by the Public Service Commission for appointment to the posts of Assistant Engineer between the period from 1953 to 1960. The PSC held the interviews and sent the select list to the Govt. in October/November, 1960. However, before the appointments could be made, the Recruitment Rules of 1960 came into force which prescribed some provisions, which did not exist in the earlier Rules/Orders, yet the Govt. made appointments on the basis of the select list sent by the PSC. The matter was taken to the Karnataka High Court. The High Court quashed the selection and appointments made by the Government. Allowing the Appeal, Their Lordships of the Supreme Court held that since the whole procedure of issuing advertisement, holding interviews and recommending the names had been followed in accordance with the existing Rules prior to the enforcement of the amended Rules, the appointments could not be rendered invalid.
The obvious ratio of this decision is that if the entire procedure is completed and before the date of appointment, new Rules come into force, the appointment can be made on the basis of the select list prepared under the old Rules.Y.V. Rangaiah and Ors v. J. Sreenivasa Rao and Ors., (supra). That was a case where before the list of eligible candidates for promotion to the post of Sub-Registrar from amongst ministerial employees was prepared, the Rules were amended providing that Lower Division Clerks would not be considered for promotion to the post and only Upper Division Clerks would be eligible. Their Lordships held that old Rules applied for filling up the vacancies that occurred prior to the coming into force of the amended Rules. It is profitable to reproduce the observations of their lordships appearing at para 9 of the report hereunder: "..... The vacancies which occurred prior to the amended rules would be governed by the old rules and not be the amended rules. It is admitted by Counsel for both the parties that henceforth promotion to the post of Sub-Registrar, Gr. II will be according to the new rules on the zonal basis and not on the Statewide basis and therefore, there was no question of challenging the new rules, But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules..." The legal position that emerges out from this decision is that if the vacancy is of the period when old Rules held the field, the appointments/promotions can be made on the basis of the old Rules and the amended rules would not apply in respect of such vacancies,A. A. Calton v. Director of Education, AIR 1983 SC 1143. The fact situation of that case was that the procedure for selection for the post of Principal had commenced in the year 1973, but the appointment was made after amendment in the Rules in 1975. The 1975 amendment had withdrawn the powers of the Director to make the appointment. Their lordships held that the Legislature is competent to pass law with retrospective effect, but no retrospective effect should be given to any statutory provision so as to impair or take away the existing right of an employee. It was further held that unless the statute expressly or by necessary implication directs that the amendment shall have retrospective effect, it will have only prospective effect. It was further observed by their lordships that at every stage in the process of selection, certain rights are created in favour of one or the other candidates. At para 5 of the Report the following observations were made: "At every stage in their process certain rights are created in favour of one or the other candidates....." The ratio of the case is that in the selection process, rights are created in favour of one or the other candidates at every stage and that the amendment if not made retrospective specifically would operate prospectively.P. Mahendran and Ors. v. State of Karnataka and Ors. (supra). It was decided by three Hon'ble Judges. That was a case of direct recruitment where advertisement for the post of Motor Vehicle Inspectors was issued in 1983 providing that holders of, Diploma in Mechanical Engineering were also eligible. The Public Service Commission commenced the process of selection. Applications were scrutinised, letters of interview issued and interviews also commenced. When the process of selection was going to be completed, the High Court stayed the selection process. Meanwhile, there was amendment in the Rules on 14.5.1987 omitting the eligibility of diploma holders in Mechanical Engineering. Following the dictum in the cases of Y.V. Rangaiah v. J. Sreenivasa Rao and A.A. Calton (supra) it was held by the Hon'ble Supreme Court that amendment could not invalidate the selection made by the Commission under the existing Rules of 1983. It was further held that every statutory rules is prospective unless it is expressly or by implication made to have retrospective effect.
The ratio of the case is that even in the matter of direct recruitment, if the selection process is complete before the amendment in the Rules as to the eligibility, the existing Rules would apply and the appointment could be made on the basis of selection held under the existing Rules.
(v) Identical question also arose before the Supreme Court in the case of N.T. Bevin Ketti, etc. v. Karnataka Public Service Commission and Ors., (supra) also. The facts of that case were that a notification was issued on 23.5.75 inviting applications for recruitment to 50 posts of Tehsildars under the Karnataka Administrative Services (Tehsildars) Recruitment Rules, 1975.
Written and viva-voce tests were held and the Commission published the select list on 18.3.76, which included the names of the appellants of that case. The Govt. refused to approve the list prepared by the Commission and wanted fresh recommendations of the Commission in terms of Govt. Orders dt. 9.7.75 relating to reservations. The PSC prepared a fresh list which did not include the names of the appellants. Their lordships following the dictum in the cases of Y.V. Rangaia v. J. Sreenivasa Rao, A.A. Kalton, S.N. Nagarajan and P. Mahendra (supra) held that if the language of the amendment does not say that it has got retrospective effect, then the selection must be regulated in accordance with the Rules which were in force on the date of the advertisement.
12. The ratio of the aforesaid cases is that if the selection process is complete before a change in the Rules, the appointment should be made in accordance with the old rules to the vacancies which had occurred before coming into force of the new Rules and that at every stage of selection process a right is created in favour of the candidates.State of Andhra Pradesh v. T. Ramakrishna Rao, AIR 1972 SC 2175, which is a Constitution Bench decision. The facts of that case were that 60 vacancies of Munsifs were notified in November, 1968 and the examinations were to be held in May 1969. However, because of the walk out by the candidates, the said examination could not be held. On 5.7.69, the Commission issued fresh notification fixing the date of examination as 25.7.69. The notification provided for holding of written examination. When the selection process was going on, the Rules was amended, therefore, fresh notification was issued. A Writ petition was filed in the High Court which was allowed holding that Rule 5 as it existed in the year 1968 was invalid. Their Lordships of the Supreme Court held that the candidates had not acquired any right by merely applying for the posts to be selected for the posts, more so, when the Rule had been declared invalid.
It is to be noticed that the fact situation in that case was that the selection process had not been completed. What was done prior to the amendment in the Rules was only invitation of the applications.
In this context, Their Lordships held that the candidates had not acquired any right to be selected on the post. Moreover, the relevant Rules had been declared invalid.
(ii) The next case is State of Haryana v. Subhas Chandra Marwaha and Ors. (1973) (L and S) 488=1973 SLJ 795 (SC). That was also the case of appointment of Judicial officers. The fact situation in that case was that an advertisement for 15 vacancies was issued on 3.2.70.
Examinations were held in November, 1970 and the result was published on 6.4.71. There was consultation with the High Court in the matter. The opinion of the High Court was that appointment should not be given to the candidates, who got less than 55% marks.
The Govt. made 7 appointments but did not provide appointment to the remaining candidates though they were successful. The contention raised was that 55% marks criteria could not be adopted as it was only 45% in the Rules. Their lordships held that the existences of vacancies did not give a legal right to a candidate to be selected for appointment and that mere entry in the list does not give him the right of appointment. It was observed that decision to appointment the candidates securing 55% marks was taken in the interest of maintaining high standards in the Judicial Service.
(iii) The next case is reported as Jaising Dalai v. State of Haryana, (supra). The fact situation in that case was that in 1990 Govt. resorted to special recruitment to Haryana Civil Service by invoking the proviso to Rule 5 of the Rules. Notification was issued and the Public Service Commission had commenced selection process and interviews of some candidates were also made. At that stage, there was change in the Govt. which took the stand that the criteria followed by the earlier Govt. was unacceptable. The new Govt., therefore, resolved to rescind the notification and withdrew the same on 30.12.91. The decision of the Govt. was challenged.
It was held that the recruitment process can be stopped by the Govt.
at any time before a candidate is appointed. It was further held that Govt., at the most, may be required to justify the decision as being not arbitrary.
That was the case where the eligibility criteria was revised and the selection process had not completed. The ratio of that case is that though the Govt. has the power to stop the recruitment process before a candidate is appointed, yet the Govt. is required to justify its decision as being not arbitrary.Rajasthan Public Service Commission v. Chanan Ram and Anr. (supra). The fact situation in that case was that 23 posts of Assistant Director (Junior) under the Rajasthan State Agricultural Marketing Service Rules posts were advertised on 5.11.93. The closing date of submission of applications was 31.12.93. Three days before the closing date, the Govt. asked the PSC not to proceed with the recruitment process as the Recruitment Rules were sought to be amended. Nothing happened for more than one year and the Rules were ultimately amended on 19.4.95. The Govt., thereafter, withdrew the requisition from the PSC. The PSC cancelled the advertisement and fresh notification was issued for filling up 26 posts of Marketing Officer under the amended Rules on 8.1.96. The applicants, who had applied earlier challenged the said notification.
Their lordships held that because of the amendment in April, 1995, the erstwhile posts of Assistant Director (Jr.) had ceased to exist and newly created posts of Marketing Officer had been created. The applicant did not have a right to challenge the amended Rules. It was observed that since the posts of Asst. Director had been abolished, the vacancies no longer remained after April, 1995. It was further held that no vested right is acquired by a candidate by merely applying for the post.
In that case, the amended Rules provided that Master's Degree in Agriculture was necessary qualification whereas in the existing Rules, even Bachelor's Degree was sufficient.
14. The ratio of the aforesaid cases at 'B' is that mere application for the post does not confer any right on a candidate to be selected, and the selection also does not confer any right, but if after selection is made and appointment is not given, the Govt. is obliged to satisfy that the decision of not giving appointment is not arbitrary.
15. Keeping in view the aforesaid decisions, we shall see if a right of appointment had accrued to the applicant before the Rules of 2001 came into force.
16. It is the admitted position of the parties that the applicant had applied for the post of Sr. PP when the existing Rules were in force.
It is also admitted that he was interviewed by the UPSC and was selected for the post and his name was recommended by the Commission vide letter dated 8.10.99, and thereafter, the Govt. obtained the suitability report as also the vigilance report about the applicant in March-April, 2000. As matter of fact, all steps for appointment of the applicant had been taken, but the formal order of appointment was not issued. The issuance of the order of appointment was a mere formality, is not our observation; it is the stand taken by the respondents in their reply. In the reply at para 14 it has been stated as follows: "But before the applicant could be formally appointed by the department, the said post was upgraded w.e.f. 1.1.96 by DOP&T vide their letter dt. 14.3.2000 and placed in a higher scale of pay of Rs. 10000-325-15200/-...." Thus only formal order of appointment was to be issued. According to the respondents, the same was not done because of the upgradation of the post, which was placed in a higher scale of pay.
17. The question that arises for consideration is whether the DOP&T's order dt. 14.3.2000 had upgraded the post of Sr. Public Prosecutor. The order dt. 14.3.2000 Annexure-R 1 is certainly not the order of upgradation of the post. After the issuance of the order dt. 14.3.2000, another order was issued by the Govt. of India on 22.3.2000. The subject of that letter is "Rationalisation of pay structure of Prosecutors of CBI." A reading of the two orders dt. 14.3.2000 and 22.3.2000 clearly shows that earlier the post of Sr. Public Prosecutor carried the pay scale of Rs. 8000-13500/-, but the Government revised the pay scale to Rs. 10000-152000/- w.e.f. 1.1.96. It is obvious that it is not the case of upgradation of the post, but it is the case of revision of pay scale w.e.f. 1.1.96 itself, the data from which the 5th Pay Commission Report was made applicable. It seems, there was recommendation for change of the pay scales of Public Prosecutors of various categories which was accepted by the Govt. and the pay scale which was meant for Sr. PP in the existing pay scale was allowed to the Public Prosecutors w.e.f. 1.1.96 and the pay scales of all the senior officers including the Sr. Public Prosecutors were also revised in the same way.
That being so, the stand taken by the respondents that the post of Sr.
PP was upgraded after the issuance of the notification dt. 14.3.2000 cannot be accepted.
18. The case for the respondents in the reply is that the applicant was not recommended by the UPSC for appointment to the post of Sr. PP in the scale of Rs. 10000-15200/-, and therefore, he does not have a right of appointment. The argument is misconceived. As already stated, the UPSC had recommended the name of the applicant for the post of Sr. PP.At the relevant time the pay scale for the post was only Rs. 80,00-13500/-. When the pay scale of Rs. 10,000-15200/- has been revised w.e.f. 1.1.96 i.e., prior to the date, the applicant made his application for the post, it has to be accepted that the selection of the applicant was made for the post of Sr. PP which carried earlier the pay scale of Rs. 8000-13500/-, but was revised to Rs. 10000-15200/- w.e.f. 1.1.96 without change of any designation.
19. It is relevant to point out that no document has been placed on record by the respondents showing that the UPSC in its recommendation had stated that the appointment of the applicant shall be made in a particular pay scale. The recommendation of the UPSC could obviously be for appointment to the post of Sr. PP. Consideration of the pay scale was not in the domain of the UPSC.20. The respondents have placed on record the letter dt. 15.12.2000 Annexure-RII to contend that the UPSC had withdrawn its recommendation.
A reading of the letter shows that it was written with reference to the letter written by the Director, CBI. What has been stated in this letter is reproduced hereunder:-- Subject: Filling up of 2 posts of Senior Public Prosecutor (Group A/Gazetted) on deputation/transfer basis.
I am directed to refer to correspondence on the above subject resting with your office letter No. DPAD5/2000/6497/8/27/98-AD.V dated 25.10.2000 and to say that since the post of Senior Public Prosecutor has not been upgraded and the RRs for the post has also been revised, Sh. Parth Tapaswi and Shri H. Venkatesh may not be appointed to the subject post. The post is required to be re-circulated/re-advertised as per revised notified RRs. The present proposal is being treated as disposed of. A fresh reference may be made along with all necessary documents in due course." The UPSC seems to have disposed of the matter in view of information supplied by the Govt. or the CBI authorities that the post of Sr.
Public Prosecutor had been upgraded and the Recruitment Rules had been revised.
However, both these facts are incorrect. As on 15.122000, new Rules had not come into force. The said Rules came into force w.e.f. 27.3.2001, i.e. 3 months after the letter of the UPSC. Therefore, the information supplied to the UPSC by the Govt. in October, 2000 that the Recruitment Rules had been revised, was incorrect. The UPSC has also committed a mistake in accepting the version of the Govt. That the Recruitment Rules had been revised.
It has already been stated that the post of Sr. PP was not upgraded by the orders dt. 14,3.2000 and 22.3.2000 and only the pay scale was revised w.e.f. 1.1.96.
Thus both the grounds on which the UPSC disposed of the matter did not exist. Obviously, the UPSC letter is based on the incorrect facts communicated by the Government.
21. The respondent have not assigned any other reason for refusing to give appointment to the applicant excepting that the post has been upgraded and the UPSC advised to re-circulate the post of Sr. PP as per revised Recruitment Rules.
22. As already stated, the legal position, as it stands, is that though the Government is not under an obligation to give appointment to a candidate on a particular post on the basis of the selection made, yet if the appointment is not given, the Government has to satisfy that its decision in not giving the appointment, is not arbitrary. The respondents have, however, failed to show that their decision in not giving the appointment is not arbitrary.
The decision of the Govt. in refusing appointment to the applicant, who was duly selected by the UPSC before coming into force of the Rules of 2001 has, therefore, to be held arbitrary.
23. It may also be pointed out that it is also not the case where that stand of the Govt. is that in the interest of the Administration, higher standard was required which the applicant does not have.
We have ourselves gone through the revised Recruitment Rules of 2001.
Having gone through the Rules carefully, we do not find any material change in the Rules. There is no change with regard to educational qualification of a candidate. It is the same in the existing Rules as also in the Rules of 2001.
The only difference in the new rules is with regard to the pay scale, which we have already stated that the pay scale has been revised from 1.1.96, which means that even in the existing rules, the pay scale was Rs. 10000-15200/- as on the date of issuance of the notification i.e., 18.9.98 annexure-B.24. There is of course a change with regard to experience. In the old Rules, it was stated that 3 years service in the grade of Public Prosecutor was required, but now it has been stated that 5 years service in the pay scale of Rs. 8000-13500/- was required. The scale of Rs. 7450-11500/- before the implementation of the 5th Pay Commission Report has been revised as Rs. 8000-13500/- w.e.f. 1.1.96. In other words, the experience in the scale of Public Prosecutor is the same.
The difference is only in the years of experience which was earlier 3 years and now 5 years. During the course of arguments, it was not disputed by the learned Counsel for the respondents that the applicant has been working in the pay scale of Public Prosecutor for the last 5 years.
25. That being so, it cannot be said that there is significant change in the standard required for appointment to the post of Sr. PP. Such being the position, the applicant cannot be denied appointment on the basis of the decision in the case of State of Haryana v. Subhas Chandra (supra), which was the case of Judicial Officers and the decision was rendered to maintain high standard in the Judiciary.
26. The decision in Chanan Ram's case (supra) cannot be applied to the instant case. In that case, the advertised post no longer existed and before the selection was made, the Rules had been amended. In the instant case, the entire selection process was complete much before the coming into force of the new Rules, and only formal orde'rs of appointment were to be issued.
The instant case is not such were the existing Rule or any provision thereof has been declared invalid, and therefore, the decision in T.Ramkrishna Rao case (supra) also cannot be applied.
So also the decision in Jai Singh Dalal's case (supra) does not assist the respondents because the respondents have failed to justify their decision as being not arbirary.
27. Keeping in view the decisions referred to above, it has to be held that a right had accrued to the applicant for appointment to the post of Sr. PP before the new Rules came into force; and the respondents have committed error in denying appointment to the applicant on the post of Sr. Public Prosecutor.
28. Consequently, the O.A. is allowed. The respondents are directed to consider the case of the applicant for appointment to the post of Sr.
Public Prosecutor on transfer basis, on the basis of the selection made by the UPSC vide letter dt. 8.10.99 and pass appropriate orders within a period of three months from the date of communication of this order.