Judgment

AHMADI, J. :- Special leave granted.

2. Heard counsel on both sides. The facts giving rise to this appeal, briefly stated, are as under:

One Mr. Jaisani, a direct recruit, was holding the post of Assistant Director General (Prevention of Food Adulteration) in the Ministry of Health and Family Welfare of the Government of India. On his passing away sometime in July 1989, a vacancy arose which was required to be filled under the extant recruitment rules. The recruitment rules which were then in operation provided for the said post being filled in by direct recruitment only. A requisition was sent to the Union Public Service Commission (Commission hereafter) sometime in November, 1989 for selection of a candidate for filling in the vacancy in question.

3. However, before the Commission could advertise the post, the Union Government informed the Commission by letter dated December 29,1989 received by the Commission on January 1,1990 not to proceed with the process of selection because it was examining the question of opening up an avenue for promotion from Assistant Secretary to the post in question. Notwithstanding the said communication, the Commission advertised the post in January 1990. The appellant applied for the same and was called for an interview on December 13,1990. Thereupon the first respondent, Mrs. Debi Mukherjee, who was then serving as Assistant Secretary, and was hoping to be promoted as Assistant Director General on the amendment of the recruitment rules, approached the Central Administrative Tribunal, New Delhi and obtained an interim order staying the process of selection initiated by the Commission. It may here be mentioned that in the meantime two further layers above that of Assistant Secretary came to be created providing for higher pay-scales by an amendment of the rules pursuant to the directions given by this Court in Writ Petition No.1118 / 89 read with the directions in the Contempt Petition No.5 /90 dated May 4,1990. The two layers thus created providing for higher pay-scales but no separate designations. The question regarding the appointment to the vacancy created on the demise of Jaisani, however, had still to be dealt with. The appellant who was affected by the Tribunals Order approached for impleadment/intervention but the Tribunal did not allow the same although we are told that the Tribunal gave a hearing to the counsel for the appellant. The Tribunal ultimately disposed of the petition with a direction to the concerned Ministry to provide promotional avenues to the applicant who had functioned in the post of Assistant Secretary for several years and had held the charge of Assistant Director General as and when the occasion arose. Three months time was granted to the concerned Ministry to carry out the directions. The failure to carry out the directions had led to the filing of a Contempt Application also.

4. The grievance of the appellant is two fold. Firstly, he contends that once the process for selection had started it was not open to the Government as well as the Tribunal to freeze the process and the Commission was entitled to complete the selection. The second point urged was that the fact of the creation of two layers by the amendment of the relevant rules had been totally overlooked by the Tribunal even though its attention was drawn to the same by counsel for the appellant.

5. In support of the first contention, strong reliance was placed on the decision of this Court in N. T. Devin Katti v. Karnataka Public Service Commission, (1990) 3 SCC 157 : (AIR 1990 SC 1233). In that case this Court observed that a candidate who is eligible and otherwise qualified in accordance with the relevant rules and the terms of the advertisement acquires a vested right of being considered for selection in accordance with the rules as they existed at the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rul