REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4646 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4976 of 2019]
State of Orissa & Anr. …Appellants
Versus
Dhirendra Sundar Das & Ors. …Respondents
WITH
CIVIL APPEAL NO.4647 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4977 of 2019]
CIVIL APPEAL NO.4648 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4978 of 2019]
CIVIL APPEAL NO.4649 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4979 of 2019]
CIVIL APPEAL NO.4650 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4980 of 2019]
CIVIL APPEAL NO.4651 OF 2019
[Arising out of Special Leave Petition (Civil) No.11861 of 2019]
(Diary No. 13938 of 2019)
CIVIL APPEAL NO.4652 OF 2019
[Arising out of Special Leave Petition (Civil) No.11862 of 2019]
(Diary No. 13946 of 2019)
1
J U D G M E N T
INDU MALHOTRA, J.
Leave granted.
1. The present Civil Appeals arise out of S.L.P. (C) Nos. 4976
4980/2019 and S.L.P. (C) Diary Nos. 13938 and 13946/2019.
S.L.P. (C) Nos. 49764980/2019 arise out of the common
impugned Judgment and Order dated 30.04.2018 passed by a
Division Bench of the Orissa High Court in W.P. (C) Nos.
14831/2013, 18749/2012, 6720/2013, 25961/2017 and
9200/2016.
S.L.P. (C) Diary Nos. 13938 and 13946/2019 arise out of
the impugned Orders dated 08.08.2018 and 10.08.2018
passed by a Division Bench of the Orissa High Court whereby
W.P. (C) Nos. 7383 and 14665/2018 were disposed of in terms
of the common impugned Judgment and Order dated
30.04.2018.
2. The factual matrix in which the present Civil Appeals arise for
consideration, briefly stated, are as under:
2
2.1. On 28.04.2008, a Letter was issued by the Appellant –
State of Orissa (“State”) to all Departments, Heads of
Departments, and Collectors inviting recommendations
for appointment by way of promotion to the Orissa
Administrative Service Class – II (“OAS Class – II”) cadre
having 150 vacancies. The recruitment process was to be
undertaken in accordance with the Orissa
Administrative Service, Class II (Recruitment) Rules,
1978 (“OAS Class II Rules, 1978”) and the Orissa
Administrative Service, Class – II (Appointment by
Promotion and Selection) Regulations, 1978 (“OAS Class
II Regulations, 1978”).
2.2. The concerned Departmental Authorities forwarded the
names of 559 candidates, including the contesting
Respondents, for consideration to be promoted/selected
to OAS Class – II posts.
2.3. The State issued Office Order dated 07.06.2008, for
implementation of the Judgment dated 11.04.2007
3
passed by the Orissa Administrative Tribunal, Cuttack
Bench (“O.A.T.”).
The O.A.T. had directed the State to separately
assess the vacancies for the years 2001 to 2005 year
wise, conduct the process of calling for names, hold a
D.P.C. in accordance with established procedure, and
make appointments within a period of six months.
2.4. In this background, the State decided to keep the
recruitment process for OAS Class – II posts for the
recruitment year 2008 on hold, till the process of
recruitment by way of promotion/selection for the years
20012005 was completed.
2.5. Pursuant to the Judgment of the Tribunal, the State
vide Letter dated 19.06.2008 called for recommendations
for the years 2001 to 2005 from all Departments, Heads
of Departments, and Collectors for recruitment to OAS
Class – II posts under Rule 3(c) of the OAS Class II
Rules, 1978.
4
2.6. Aggrieved by the delay in completion of the recruitment
process for the years 20072008, various O.A.s were
filed by the contesting Respondents, and other similarly
situated persons, who had been recommended for
consideration to OAS Class – II posts against the
vacancies for 2008 before the O.A.T. The Applicants
prayed for completion of the recruitment process by
convening a D.P.C.; and declaration of the selection list
for the years 20072008 within a month, and issuance of
appointment letters.
2.7. The State undertook restructuring of the Orissa
Administrative Service in February 2009.
The restructured Orissa Administrative Service
cadre would comprise of different Grades, viz. – OAS
Class – I (Junior Branch), OAS Class I (Senior Branch),
OAS (Supertime Scale), OAS (Senior Grade in Supertime
Scale), OAS (Superior Administrative Grade), and OAS
(Special Secretary).
2.8. By Resolution dated 25.05.2009, the Orissa Revenue
Service Group ‘B’ cadre was constituted.
5
The existing cadre of OAS Class – II posts was
abolished. The corresponding cadre of OAS Class – II
was the Orissa Revenue Service Group ‘B’ cadre.
2.9. The State vide two Notifications dated 07.12.2010
appointed candidates on OAS Class – II posts by way of
selection and promotion for the recruitment years 2001
to 2005.
2.10. The State framed the Orissa Administrative Services
(Method of Recruitment and Conditions of Service)
Rules, 2011 (“OAS Rules, 2011”) under Article 309 of
the Constitution of India. The Rules came into force on
25.06.2011.
Rule 17 of the OAS Rules, 2011 repealed the OAS
Class II Rules, 1978 under which the 2008 recruitment
process had been initiated.
Rule 4 of the OAS Rules, 2011 provides for
recruitment by promotion to Group ‘A’ (Junior Branch)
posts of the reconstituted Orissa Administrative Service
cadre from members of the Orissa Revenue Service.
6
Similarly, the Orissa Revenue Service (Recruitment)
Rules, 2011 (“ORS Rules, 2011”) came into force on
June 27, 2011 to regulate the method of recruitment,
and conditions of service, of persons appointed to the
Orissa Revenue Service, including Group ‘B’ posts.
2.11. The O.A.T. vide Judgment dated 14.03.2012 decided the
O.A.s filed by the contesting Respondents and other
similarly situated persons who were under consideration
for the vacancies for the recruitment year 2008. The
State was directed to take immediate steps to fill up
Class – II/Group ‘B’ posts in the Orissa Revenue Service
cadre. 50% of the vacancies were to be filled up by direct
recruitment, and 50% by promotion from amongst Class
– III/Group C employees as early as practicable, and
preferably within six months. The relief claimed by the
contesting Respondents and other similarly situated
persons could not be granted unless 50% of the available
vacancies were first filled up by direct recruitment in
accordance with the Rules. The contesting Respondents
had merely been recommended by their respective
7
Departmental Authorities for promotion/selection to
OAS Class – II (Group B) posts. There was no Selection
Board/D.P.C. which was convened, nor was any Select
List/Merit List prepared. The contesting Respondents
who were continuing against Class III posts, could be
considered for promotion only to Class – II (Group B)
posts, and not directly to Class – I (Group A) posts. No
right had accrued in favour of the contesting
Respondents to seek convening of a Selection
Board/Department Promotion Committee for
appointment on OAS Class – II posts. The contesting
Respondents would be eligible for consideration against
the available Class – II/Group B posts in the
promotional quota, after 50% of the vacancies were filled
up by direct recruitment.
2.12. Aggrieved by the common Judgment and Order dated
14.03.2012 passed by the O.A.T., the contesting
Respondents filed W.P.s before the Orissa High Court
seeking quashing of the Judgment dated 14.03.2012
passed by the O.A.T.; issuance of directions to the State
8
to complete the recruitment process to OAS Class – II
posts on the basis of the recommendations made in
favour of the contesting Respondents; and, grant
promotion to the contesting Respondents to OAS Class –
II posts with all service and promotional benefits from
the date such benefits were due.
2.13. The Division Bench by the common impugned Judgment
and Order dated 30.04.2018 disposed of the W.P.s filed
by the contesting Respondents, and set aside the
Judgment dated 14.03.2012 passed by the O.A.T. The
State Authorities were directed to call for a review D.P.C.
to consider the cases of the contesting Respondents, and
other eligible officers, and complete the recruitment
process for 150 vacant OAS Class – II posts as against
the recruitment year of 2008 within 3 months. The High
Court held that the 150 vacant OAS Class – II posts for
which recommendations were made in the year 2008,
prior to the abolition of the OAS Class – II posts, and reconstitution of the Orissa Revenue Service cadre, be
filled up under the OAS Class II Rules, 1978.
9
3. Aggrieved by the impugned Judgment and Order dated
30.04.2018 as well as the impugned Orders dated 08.08.2018
and 10.08.2018 passed by the Division Bench, the State has
filed the present Special Leave Petitions.
4. The issue which arises for our consideration in the present
Civil Appeals is whether the Division Bench of the Orissa High
Court was justified in directing the State to convene a review
D.P.C. for considering the case of the contesting Respondents
and other eligible officers, and directing it to complete the
recruitment process for recruitment year of 2008 to the 150
vacant posts.
5. SUBMISSIONS OF PETITIONERS
5.1. Mr. Ravi Prakash Mehrotra, Advocate on behalf of the
State submitted that the Division Bench had committed
a palpable error in directing the State to convene a
review D.P.C.
5.2. Placing reliance on a recent decision of this Court in
Union of India & Ors. v. Krishna Kumar & Ors.1
, it was
submitted that no right had accrued in favour of the
1 2019 (1) SCALE 691.
10
contesting Respondents merely on account of their
names being recommended by the respective
Departmental Authorities to be considered for
selection/promotion against the vacancies in the
recruitment year 2008. The list of persons recommended
cannot be considered to be the approved list of
candidates for selection/promotion, since no D.P.C. or
Selection Committee was convened for the same.
5.3. It was further submitted that the contesting
Respondents did not challenge the abolition of the OAS
Class – II cadre, and the consequent creation of the
Orissa Revenue Service Group ‘B’ cadre.
5.4. The contesting Respondents could not claim a lien over
the OAS Class – II cadre, which had since been
abolished in 2009, and replaced by the Orissa Revenue
Service Group ‘B’ cadre.
5.5. Some of the contesting Respondents had submitted
themselves before the Selection Committee convened in
2013, and another in 2018, under the new ORS Rules,
11
2011 for appointment to vacant posts in the Orissa
Revenue Service Group ‘B’ cadre.
It was, therefore, not open to claim appointments to
the OAS Class – II posts under the repealed Rules in an
abolished cadre.
5.6. The claim of the contesting Respondents cannot be
considered at par with the candidates for the years 2001
to 2005 as their appointments were made prior to the
repeal of the OAS Class II Rules, 1978 and the OAS
Class II Regulations, 1978.
5.7. It was further submitted on behalf of the State that if the
directions of the Division Bench were to be carried out,
supernumerary posts would be required to be created to
accommodate the contesting Respondents which was not
possible. This would create a serious precedent, since
there were 559 candidates who were similarly situated
as the contesting Respondents, and had been
recommended by various Departments in 2008.
6. SUBMISSIONS OF RESPONDENTS
12
6.1. Ms. Meenakshi Arora, learned Senior Advocate,
submitted that 150 vacant OAS Class – II posts were
available in 2008. The contesting Respondents were
eligible, and were duly recommended for appointment by
way of selection/promotion under the OAS Class II
Rules, 1978 and the OAS Class II Regulations, 1978.
6.2. The State, being a model employer, cannot discriminate
in the matter of selection/promotion to OAS Class – II
posts on a ‘pickandchoose’ basis.
6.3. Admittedly, the OAS Class II Rules, 1978 and the OAS
Class II Regulations, 1978 were in force at the time when
the State decided to fill up 150 OAS Class – II posts on
28.04.2008. The vacancies were required to be filled up
under the OAS Class II Rules, 1978.
6.4. Reliance was placed by Ms. Arora, learned Senior
Advocate, on the decision of this Court in Y.V. Rangaiah
& Ors. v. J. Sreenivasa Rao & Ors.2
. It was submitted
that vacancies which had occurred prior to the repeal of
the OAS Class II Rules, 1978 and OAS Class II
2 (1983) 3 SCC 284.
13
Regulations, 1978; and the coming into force of the OAS
Rules, 2011 and the ORS Rules, 2011, would be
governed by the old Rules, viz. OAS Class II Rules, 1978
and OAS Class II Regulations, 1978.
7. DISCUSSION AND ANALYSIS
7.1. The contesting Respondents cannot claim an accrued or
vested right for selection or promotion to OAS Class – II
posts in the year 2008, merely on the basis of their
names being forwarded by the respective Departmental
Authorities.
7.2. When the recruitment process for 2008 was initiated
vide Letter dated April 28, 2008 by the State, the extant
rules and regulations occupying the field for selection
and promotion to OAS Class – II posts were the OAS
Class II Rules, 1978 and the OAS Class II Regulations,
1978.
7.3. Rule 6 of the OAS Class II Rules, 1978 provided for the
determination of vacancies by the State Government.
14
Rule 6 has been reproduced hereinbelow for ready
reference:
“6. Filing of vacancies. –
The State Government may decide the number of
vacancies in the service as may be required to be filled
up in any particular year:
Provided that no recruitment to the service
shall be made without the prior consultation with the
Commission”
(emphasis supplied)
7.4. Rule 3 of the OAS Class II, Rules 1978 provided that
recruitment to OAS Class II posts was to be made by
three methods – first, direct recruitment by competitive
examination [Rule 3(a)]; second, promotion from
amongst Gazetted Officers of a certain class [Rule 3(b)];
and third, selection of nonGazetted Officers [Rule 3(c)].
The proportion of candidates to be recruited by the
methods specified above as per Rule 8 of the OAS Class
II Rules, 1978 was – 50% by direct recruitment, 30% by
promotion, and 20% by selection.
Further, Rule 8(5) also mandated that the State was
required to consult the Orissa Public Service
15
Commission before appointment by way of promotion
and selection.
7.5. As per Rule 5 of the OAS Class II Rules, 1978,
recruitment to OAS Class II posts by way of selection or
promotion shall be in accordance with the Orissa Class
II Regulations, 1978, which outline the recruitment
process.
7.6. In accordance with Regulation 6(i) of the OAS Class II
Regulations, 1978, any recruitment process by way of
selection or promotion was to be initiated by the State by
calling for recommendations from Collectors, Heads of
Departments and Departments of Governments, who
were required to forward a list of candidates considered
suitable to the Administrative Department (i.e. the
Revenue Department).
On receipt of the recommendations, the
Administrative Department (i.e. the Revenue
Department) was required to place a list of
recommended candidates in a tabular form before a
Selection Board constituted under Regulation 3.
16
7.7. Under Regulation 7, the Selection Board was required to
consider the recommendations so received from the
Administrative Department, scrutinise the records
relating to the candidates who had been recommended,
and prepare a list of candidates who in the opinion of
the Selection Board are suitable for appointment to OAS
Class – II posts.
7.8. Thereafter, as per Regulation 8, the list prepared by the
Selection Board under Regulation 7 was required to be
referred to the Orissa Public Service Commission by the
State Government, along with the service records of the
all candidates whose names feature in the list.
7.9. After considering the list prepared under Regulation 7
along with other documents and records received from
the State Government, the Orissa Public Service
Commission was required to recommend a list of
candidates suitable for selection or promotion, as the
case may be, under Regulation 9.
7.10. The list of candidates recommended by the Orissa Public
Service Commission under Regulation 9 was required to
17
be placed before the State Government. The said list,
after any approval with modification, was to form the
final list from which appointments were to be made to
OAS Class – II posts by way of selection or promotion in
accordance with Regulation 10.
Thus, the recruitment process by way of selection or
promotion, as the case may be, initiated in accordance
with Regulation 6 would culminate on the making of a
final list as per Regulation 10. Appointments by way of
promotion or selection could be made only from amongst
the candidates whose names featured in the final list
prepared by the Commission, and placed before the
State Government.
7.11. In Deepak Agarwal & Another v. State of Uttar Pradesh &
Ors.3
this Court had held that the right to be considered
for promotion accrues on the date of consideration of
eligible candidates.4
3 (2011) 6 SCC 725.
4 See also Union of India & Ors. v. Krishna Kumar & Ors., 2019 (1) SCALE 691 (para 11);
and, State of Tripura & Ors. v. Nikhil Ranjan Chakraborty & Ors., (2017) 3 SCC 646 (paras 8
and 9).
18
The relevant extract of the decision is extracted
hereinbelow for ready reference:
“26. It is by now a settled proposition of law that a
candidate has the right to be considered in the light of
the existing rules, which implies the “rule in force” on the
date the consideration took place. There is no rule of
universal or absolute application that vacancies are to be
filled invariably by the law existing on the date when the
vacancy arises. The requirement of filling up old
vacancies under the old rules is interlinked with the
candidate having acquired a right to be considered for
promotion. The right to be considered for promotion
accrues on the date of consideration of the eligible
candidates. Unless, of course, the applicable rule, as
in Y.V. Rangaiah case [(1983) 3 SCC 284 : 1983 SCC
(L&S) 382] lays down any particular timeframe, within
which the selection process is to be completed. In the
present case, consideration for promotion took place after
the amendment came into operation. Thus, it cannot be
accepted that any accrued or vested right of the
appellants has been taken away by the amendment.”
(emphasis supplied)
7.12. In the present case, the names of 559 candidates,
including the contesting Respondents, were merely
recommended by their respective Departmental
Authorities under Regulation 6. The recruitment process
did not proceed any further in accordance with
Regulations 7, 8, 9 and 10. No final list of selected
candidates was placed by the Orissa Public Service
19
Commission before the State Government for the
purposes of appointment as against the vacancies of
2008.
As such, the contesting Respondents who had
merely been recommended by their respective
Departmental Authorities could not be considered to be
‘eligible’ for appointment by way of promotion or
selection under the erstwhile OAS Class II Regulations,
1978, since the steps set out in the regulations
mentioned below had not been completed prior to the
repeal of the old OAS Class II Rules, 1978 and the OAS
Class II Regulations, 1978:
Regulation 7 – preparation of a list of suitable
candidates by the Selection Board;
Regulation 8 – consultation with the Orissa Public
Service Commission;
Regulation 9 – recommendation of the Orissa
Public Service Commission; and,
20
Regulation 10 – preparation and placement of final
list before the State Government for appointment.
Thus, the contesting Respondents had not acquired
an accrued or vested right of selection or promotion to
OAS Class – II posts in accordance with the OAS Class II
Rules, 1978 and the OAS Class II Regulations, 1978,
since their names had never been considered for
selection or promotion beyond the stage contemplated
under Regulation 6.
7.13. Reliance placed by the Counsel for the Respondents on
Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors.5
in
order to submit that the vacancies which had arisen
under the old Rules would be governed by the old Rules,
is of no avail.
A similar submission was rejected by this Court in
Deepak Agarwal & Another v. State of Uttar Pradesh &
Ors.6
. The relevant excerpt of the decision is reproduced
hereinbelow:
5 (1983) 3 SCC 284.
6 (2011) 6 SCC 725.
21
“24. We are of the considered opinion that the judgment
in Y.V. Rangaiah case[(1983) 3 SCC 284 : 1983 SCC
(L&S) 382] would not be applicable in the facts and
circumstances of this case. The aforesaid judgment was
rendered on the interpretation of Rule 4(a)(1)(i) of the
Andhra Pradesh Registration and Subordinate Service
Rules, 1976. The aforesaid Rule provided for
preparation of a panel for the eligible candidates every
year in the month of September. This was a statutory
duty cast upon the State. The exercise was required to
be conducted each year. Thereafter, only promotion
orders were to be issued. However, no panel had been
prepared for the year 1976. Subsequently, the Rule was
amended, which rendered the petitioners therein
ineligible to be considered for promotion. In these
circumstances, it was observed by this Court that the
amendment would not be applicable to the vacancies
which had arisen prior to the amendment. The
vacancies which occurred prior to the amended Rules
would be governed by the old Rules and not the
amended Rules.
25. In the present case, there is no statutory duty cast
upon the respondents to either prepare a yearwise panel
of the eligible candidates or of the selected candidates
for promotion. In fact, the proviso to Rule 2 enables the
State to keep any post unfilled. Therefore, clearly there
is no statutory duty which the State could be mandated
to perform under the applicable Rules. The requirement
to identify the vacancies in a year or to take a decision
as to how many posts are to be filled under Rule 7
cannot be equated with not issuing promotion orders to
the candidates duly selected for promotion. In our
opinion, the appellants had not acquired any right to be
considered for promotion. Therefore, it is difficult to
accept the submissions of Dr. Rajeev Dhavan that the
vacancies, which had arisen before 1751999 had to be
filled under the unamended Rules.”
(emphasis supplied)
22
7.14. In the present case the contesting Respondents had
merely been recommended by the respective
Departmental Authorities under Regulation 6. The
recruitment process had not proceeded any further
thereafter. There was no timeframe prescribed for
completion of the recruitment process under the
erstwhile OAS Class – II Rules, 1978 or the OAS Class –
II Regulations, 1978.
7.15. In the meanwhile, the State restructured the Orissa
Administrative Service cadre, and constituted the Orissa
Revenue Service vide Resolutions dated 28.02.2009 and
25.05.2009.
As a part of the restructuring exercise, the
erstwhile OAS Class – II posts were abolished, and a
corresponding new cadre of Group ‘B’ posts in the newly
constituted Orissa Revenue Service was created.
7.16. The contesting Respondents have not challenged either
the abolition of OAS Class – II posts, or the creation of
the corresponding Orissa Revenue Service Group ‘B’
posts.
23
7.17. To the contrary, some of them have participated in the
proceedings of the D.P.C. convened on 30.04.2013 for
recruitment to the newly created Orissa Revenue Service
Group ‘B’ cadre.
After being considered, 6 of the contesting
Respondents were selected, while 1 was kept on the
Waiting List.
The State appointed the said Respondents to the
Orissa Revenue Service Group ‘B’ posts. However, only
two out of the five contesting Respondents who were
appointed, joined the posts.
7.18. Subsequently, during the pendency of the W.P.s,
another D.P.C. was convened to consider the promotion
of employees working in the Orissa Revenue Services
Group ‘B’ posts to Orissa Administrative Service Group A
(Junior Branch) posts.
1 contesting Respondent was promoted to the OAS
Group A (Junior Branch) cadre.
24
7.19. The contesting Respondents cannot claim any lien over
the abolished OAS Class – II posts, which were governed
by the old OAS Class II Rules, 1978 and OAS Class II
Regulations, 1978.
7.20. In this context, reliance may be placed on two decisions
of this Court in Rajasthan Public Service Commission v.
Chanan Ram7 and Union of India & Ors. v. Krishna
Kumar & Ors.8
.
In Rajasthan Public Service Commission v. Chanan
Ram9
this Court rejected a claim for filing up vacancies
in posts which no longer existed, after an amendment of
the extant Rules.
The relevant excerpt of the decision is reproduced
hereinbelow for ready reference:
“14. …Once it is held that the old vacancies were in
posts which no longer existed after April 1995, there
remained no occasion to consider whether these old
vacancies could be filled in by applying earlier rules of
recruitment to the very same posts…There were no such
posts after April 1995 in the cadres of the Rajasthan
Agricultural Marketing Service as seen earlier…
7 (1998) 4 SCC 202.
8 2019 (1) SCALE 691.
9 (1998) 4 SCC 202.
25
15. …On the contrary a threeJudge Bench judgment of
this Court in the case of Jai Singh Dalal v. State of
Haryana [1993 Supp (2) SCC 600 : 1993 SCC (L&S) 846
: (1993) 24 ATC 788] would squarely get attracted on
the facts of the present case. A.M. Ahmadi J., speaking
for the threeJudge Bench in para 7 of the Report
relying on an earlier judgment of this Court in case
of State of Haryana v. Subash Chander Marwaha [(1974)
3 SCC 220 : 1973 SCC (L&S) 488] laid down that when
the special process of recruitment had not been
finalised and culminated into select list the candidate
did not have any right to appointment. In this
connection it was observed that the recruitment process
could be stopped by the Government at any time before
a candidate has been appointed. A candidate has no
vested right to get the process completed and at the
most the Government could be required to justify its
action on the touchstone of Article 14 of the
Constitution.”
(emphasis supplied)
In Union of India & Ors. v. Krishna Kumar & Ors.10
this Court was dealing with a similar situation of cadre
restructuring.
The relevant extract of the decision is reproduced
hereinbelow for ready reference:
“14. In view of this statement of the law, it is evident
that once the structure of Assam Rifles underwent a
change following the creation of the intermediate
post of Warrant Officer, persons holding the
post of Havildar would be considered for promotion to the
post of Warrant Officer. The intermediate post of Warrant
Officer was created as a result of the restructuring
10 2019 (1) SCALE 691.
26
exercise. The High Court was, in our view, in error in
postulating that vacancies which arose prior to the
amendment of the Recruitment Rules would necessarily
be governed by the Rules which existed at the time of the
occurrence of the vacancies. As the decided cases noted
earlier indicate, there is no such rule of absolute or
universal application. The entire basis of the
decision of the High Court was that those who were
recruited prior to the restructuring exercise and were
holding the post of Havildars had acquired a vested
right of promotion to the post of Naib Subedar. This does
not reflect the correct position in law. The right is to be
considered for promotion in accordance with the Rules as
they exist when the exercise is carried out for promotion.”
(emphasis supplied)
7.21. The submission of the contesting Respondents that their
case be considered at par with the candidates appointed
by way of selection and promotion as against the
vacancies for the years 2001 to 2005 is not tenable.
The appointments of persons as against the
vacancies for the years 2001 to 2005 were made vide two
Notifications dated December 7, 2010, which were
issued prior to the repeal of the old OAS Class II Rules,
1978 and the OAS Class II Regulations, 1978.
7.22. Finally, the High Court had relied upon the decision in
Mukti Ranjan Acharya & Ors. v. State of Orissa & Ors.11
11 2012 (II) OLR 61.
27
[W.P. (C) No. 19827/2009; Decided on 16.04.2012] to
hold that promotions could be given under the repealed
OAS Class II Rules, 1978 and the OAS Class II
Regulations, 1978. The S.L.P. against this judgment had
been simply dismissed. The Counsel for the contesting
Respondents prayed for dismissal of the present Civil
Appeals by submitting that the said decision had been
affirmed by this Court vide Order dated 28.09.2012.
It is a wellsettled principle of law emerging from a
catena of decisions of this Court, including Supreme
Court Employees’ Welfare Association v. Union of India &
Anr.12 and State of Punjab v. Davinder Pal Singh
Bhullar13, that the dismissal of a S.L.P. in limine simply
implies that the case before this Court was not
considered worthy of examination for a reason, which
may be other than the merits of the case. Such in limine
dismissal at the threshold without giving any detailed
reasons, does not constitute any declaration of law or a
binding precedent under Article 141 of the Constitution.
12 (1989) 1 SCC 187 (paras 22 and 23).
13 (2011) 14 SCC 770 (paras 112 and 113).
28
8. On the aforesaid grounds, we hold that the Judgment of the
Division Bench is liable to be set aside since the contesting
Respondents did not have a vested or fructified right of
promotion to OAS Class II posts which had arisen during the
recruitment year 2008. The names of the contesting
Respondents were merely recommended for consideration. In
the meanwhile, in 2009 the State had restructured the cadre,
and abolished the OAS Class II cadre. The reconstituted cadre
viz. the Orissa Revenue Service Group ‘B’ cadre came in its
place. Hence, the direction of the Division Bench to appoint
the contesting Respondents in the vacancies which had
occurred in the abolished cadre, in accordance with the
repealed 1978 Rules, was contrary to law, and liable to be set
aside.
In view of the aforesaid findings, the present Civil
Appeals are allowed. The common impugned Judgment and
Order dated 30.04.2018 passed by the Orissa High Court in
W.P. (C) Nos. 14831 of 2013, 18749 of 2012, 6720 of 2013,
25961 of 2017 and 9200 of 2016 as well as the impugned
Orders dated 08.08.2018 and 10.08.2018 passed by the Orissa
29
High Court in W.P. (C) Nos. 7383 and 14665/2018 are set
aside.
Pending Interlocutory Applications, if any, are disposed
of in terms of the Judgment.
Ordered accordingly.
…..……...........................J.
(UDAY UMESH LALIT)
..….……..........................J.
(INDU MALHOTRA)
New Delhi
May 6, 2019.
30
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4646 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4976 of 2019]
State of Orissa & Anr. …Appellants
Versus
Dhirendra Sundar Das & Ors. …Respondents
WITH
CIVIL APPEAL NO.4647 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4977 of 2019]
CIVIL APPEAL NO.4648 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4978 of 2019]
CIVIL APPEAL NO.4649 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4979 of 2019]
CIVIL APPEAL NO.4650 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4980 of 2019]
CIVIL APPEAL NO.4651 OF 2019
[Arising out of Special Leave Petition (Civil) No.11861 of 2019]
(Diary No. 13938 of 2019)
CIVIL APPEAL NO.4652 OF 2019
[Arising out of Special Leave Petition (Civil) No.11862 of 2019]
(Diary No. 13946 of 2019)
1
J U D G M E N T
INDU MALHOTRA, J.
Leave granted.
1. The present Civil Appeals arise out of S.L.P. (C) Nos. 4976
4980/2019 and S.L.P. (C) Diary Nos. 13938 and 13946/2019.
S.L.P. (C) Nos. 49764980/2019 arise out of the common
impugned Judgment and Order dated 30.04.2018 passed by a
Division Bench of the Orissa High Court in W.P. (C) Nos.
14831/2013, 18749/2012, 6720/2013, 25961/2017 and
9200/2016.
S.L.P. (C) Diary Nos. 13938 and 13946/2019 arise out of
the impugned Orders dated 08.08.2018 and 10.08.2018
passed by a Division Bench of the Orissa High Court whereby
W.P. (C) Nos. 7383 and 14665/2018 were disposed of in terms
of the common impugned Judgment and Order dated
30.04.2018.
2. The factual matrix in which the present Civil Appeals arise for
consideration, briefly stated, are as under:
2
2.1. On 28.04.2008, a Letter was issued by the Appellant –
State of Orissa (“State”) to all Departments, Heads of
Departments, and Collectors inviting recommendations
for appointment by way of promotion to the Orissa
Administrative Service Class – II (“OAS Class – II”) cadre
having 150 vacancies. The recruitment process was to be
undertaken in accordance with the Orissa
Administrative Service, Class II (Recruitment) Rules,
1978 (“OAS Class II Rules, 1978”) and the Orissa
Administrative Service, Class – II (Appointment by
Promotion and Selection) Regulations, 1978 (“OAS Class
II Regulations, 1978”).
2.2. The concerned Departmental Authorities forwarded the
names of 559 candidates, including the contesting
Respondents, for consideration to be promoted/selected
to OAS Class – II posts.
2.3. The State issued Office Order dated 07.06.2008, for
implementation of the Judgment dated 11.04.2007
3
passed by the Orissa Administrative Tribunal, Cuttack
Bench (“O.A.T.”).
The O.A.T. had directed the State to separately
assess the vacancies for the years 2001 to 2005 year
wise, conduct the process of calling for names, hold a
D.P.C. in accordance with established procedure, and
make appointments within a period of six months.
2.4. In this background, the State decided to keep the
recruitment process for OAS Class – II posts for the
recruitment year 2008 on hold, till the process of
recruitment by way of promotion/selection for the years
20012005 was completed.
2.5. Pursuant to the Judgment of the Tribunal, the State
vide Letter dated 19.06.2008 called for recommendations
for the years 2001 to 2005 from all Departments, Heads
of Departments, and Collectors for recruitment to OAS
Class – II posts under Rule 3(c) of the OAS Class II
Rules, 1978.
4
2.6. Aggrieved by the delay in completion of the recruitment
process for the years 20072008, various O.A.s were
filed by the contesting Respondents, and other similarly
situated persons, who had been recommended for
consideration to OAS Class – II posts against the
vacancies for 2008 before the O.A.T. The Applicants
prayed for completion of the recruitment process by
convening a D.P.C.; and declaration of the selection list
for the years 20072008 within a month, and issuance of
appointment letters.
2.7. The State undertook restructuring of the Orissa
Administrative Service in February 2009.
The restructured Orissa Administrative Service
cadre would comprise of different Grades, viz. – OAS
Class – I (Junior Branch), OAS Class I (Senior Branch),
OAS (Supertime Scale), OAS (Senior Grade in Supertime
Scale), OAS (Superior Administrative Grade), and OAS
(Special Secretary).
2.8. By Resolution dated 25.05.2009, the Orissa Revenue
Service Group ‘B’ cadre was constituted.
5
The existing cadre of OAS Class – II posts was
abolished. The corresponding cadre of OAS Class – II
was the Orissa Revenue Service Group ‘B’ cadre.
2.9. The State vide two Notifications dated 07.12.2010
appointed candidates on OAS Class – II posts by way of
selection and promotion for the recruitment years 2001
to 2005.
2.10. The State framed the Orissa Administrative Services
(Method of Recruitment and Conditions of Service)
Rules, 2011 (“OAS Rules, 2011”) under Article 309 of
the Constitution of India. The Rules came into force on
25.06.2011.
Rule 17 of the OAS Rules, 2011 repealed the OAS
Class II Rules, 1978 under which the 2008 recruitment
process had been initiated.
Rule 4 of the OAS Rules, 2011 provides for
recruitment by promotion to Group ‘A’ (Junior Branch)
posts of the reconstituted Orissa Administrative Service
cadre from members of the Orissa Revenue Service.
6
Similarly, the Orissa Revenue Service (Recruitment)
Rules, 2011 (“ORS Rules, 2011”) came into force on
June 27, 2011 to regulate the method of recruitment,
and conditions of service, of persons appointed to the
Orissa Revenue Service, including Group ‘B’ posts.
2.11. The O.A.T. vide Judgment dated 14.03.2012 decided the
O.A.s filed by the contesting Respondents and other
similarly situated persons who were under consideration
for the vacancies for the recruitment year 2008. The
State was directed to take immediate steps to fill up
Class – II/Group ‘B’ posts in the Orissa Revenue Service
cadre. 50% of the vacancies were to be filled up by direct
recruitment, and 50% by promotion from amongst Class
– III/Group C employees as early as practicable, and
preferably within six months. The relief claimed by the
contesting Respondents and other similarly situated
persons could not be granted unless 50% of the available
vacancies were first filled up by direct recruitment in
accordance with the Rules. The contesting Respondents
had merely been recommended by their respective
7
Departmental Authorities for promotion/selection to
OAS Class – II (Group B) posts. There was no Selection
Board/D.P.C. which was convened, nor was any Select
List/Merit List prepared. The contesting Respondents
who were continuing against Class III posts, could be
considered for promotion only to Class – II (Group B)
posts, and not directly to Class – I (Group A) posts. No
right had accrued in favour of the contesting
Respondents to seek convening of a Selection
Board/Department Promotion Committee for
appointment on OAS Class – II posts. The contesting
Respondents would be eligible for consideration against
the available Class – II/Group B posts in the
promotional quota, after 50% of the vacancies were filled
up by direct recruitment.
2.12. Aggrieved by the common Judgment and Order dated
14.03.2012 passed by the O.A.T., the contesting
Respondents filed W.P.s before the Orissa High Court
seeking quashing of the Judgment dated 14.03.2012
passed by the O.A.T.; issuance of directions to the State
8
to complete the recruitment process to OAS Class – II
posts on the basis of the recommendations made in
favour of the contesting Respondents; and, grant
promotion to the contesting Respondents to OAS Class –
II posts with all service and promotional benefits from
the date such benefits were due.
2.13. The Division Bench by the common impugned Judgment
and Order dated 30.04.2018 disposed of the W.P.s filed
by the contesting Respondents, and set aside the
Judgment dated 14.03.2012 passed by the O.A.T. The
State Authorities were directed to call for a review D.P.C.
to consider the cases of the contesting Respondents, and
other eligible officers, and complete the recruitment
process for 150 vacant OAS Class – II posts as against
the recruitment year of 2008 within 3 months. The High
Court held that the 150 vacant OAS Class – II posts for
which recommendations were made in the year 2008,
prior to the abolition of the OAS Class – II posts, and reconstitution of the Orissa Revenue Service cadre, be
filled up under the OAS Class II Rules, 1978.
9
3. Aggrieved by the impugned Judgment and Order dated
30.04.2018 as well as the impugned Orders dated 08.08.2018
and 10.08.2018 passed by the Division Bench, the State has
filed the present Special Leave Petitions.
4. The issue which arises for our consideration in the present
Civil Appeals is whether the Division Bench of the Orissa High
Court was justified in directing the State to convene a review
D.P.C. for considering the case of the contesting Respondents
and other eligible officers, and directing it to complete the
recruitment process for recruitment year of 2008 to the 150
vacant posts.
5. SUBMISSIONS OF PETITIONERS
5.1. Mr. Ravi Prakash Mehrotra, Advocate on behalf of the
State submitted that the Division Bench had committed
a palpable error in directing the State to convene a
review D.P.C.
5.2. Placing reliance on a recent decision of this Court in
Union of India & Ors. v. Krishna Kumar & Ors.1
, it was
submitted that no right had accrued in favour of the
1 2019 (1) SCALE 691.
10
contesting Respondents merely on account of their
names being recommended by the respective
Departmental Authorities to be considered for
selection/promotion against the vacancies in the
recruitment year 2008. The list of persons recommended
cannot be considered to be the approved list of
candidates for selection/promotion, since no D.P.C. or
Selection Committee was convened for the same.
5.3. It was further submitted that the contesting
Respondents did not challenge the abolition of the OAS
Class – II cadre, and the consequent creation of the
Orissa Revenue Service Group ‘B’ cadre.
5.4. The contesting Respondents could not claim a lien over
the OAS Class – II cadre, which had since been
abolished in 2009, and replaced by the Orissa Revenue
Service Group ‘B’ cadre.
5.5. Some of the contesting Respondents had submitted
themselves before the Selection Committee convened in
2013, and another in 2018, under the new ORS Rules,
11
2011 for appointment to vacant posts in the Orissa
Revenue Service Group ‘B’ cadre.
It was, therefore, not open to claim appointments to
the OAS Class – II posts under the repealed Rules in an
abolished cadre.
5.6. The claim of the contesting Respondents cannot be
considered at par with the candidates for the years 2001
to 2005 as their appointments were made prior to the
repeal of the OAS Class II Rules, 1978 and the OAS
Class II Regulations, 1978.
5.7. It was further submitted on behalf of the State that if the
directions of the Division Bench were to be carried out,
supernumerary posts would be required to be created to
accommodate the contesting Respondents which was not
possible. This would create a serious precedent, since
there were 559 candidates who were similarly situated
as the contesting Respondents, and had been
recommended by various Departments in 2008.
6. SUBMISSIONS OF RESPONDENTS
12
6.1. Ms. Meenakshi Arora, learned Senior Advocate,
submitted that 150 vacant OAS Class – II posts were
available in 2008. The contesting Respondents were
eligible, and were duly recommended for appointment by
way of selection/promotion under the OAS Class II
Rules, 1978 and the OAS Class II Regulations, 1978.
6.2. The State, being a model employer, cannot discriminate
in the matter of selection/promotion to OAS Class – II
posts on a ‘pickandchoose’ basis.
6.3. Admittedly, the OAS Class II Rules, 1978 and the OAS
Class II Regulations, 1978 were in force at the time when
the State decided to fill up 150 OAS Class – II posts on
28.04.2008. The vacancies were required to be filled up
under the OAS Class II Rules, 1978.
6.4. Reliance was placed by Ms. Arora, learned Senior
Advocate, on the decision of this Court in Y.V. Rangaiah
& Ors. v. J. Sreenivasa Rao & Ors.2
. It was submitted
that vacancies which had occurred prior to the repeal of
the OAS Class II Rules, 1978 and OAS Class II
2 (1983) 3 SCC 284.
13
Regulations, 1978; and the coming into force of the OAS
Rules, 2011 and the ORS Rules, 2011, would be
governed by the old Rules, viz. OAS Class II Rules, 1978
and OAS Class II Regulations, 1978.
7. DISCUSSION AND ANALYSIS
7.1. The contesting Respondents cannot claim an accrued or
vested right for selection or promotion to OAS Class – II
posts in the year 2008, merely on the basis of their
names being forwarded by the respective Departmental
Authorities.
7.2. When the recruitment process for 2008 was initiated
vide Letter dated April 28, 2008 by the State, the extant
rules and regulations occupying the field for selection
and promotion to OAS Class – II posts were the OAS
Class II Rules, 1978 and the OAS Class II Regulations,
1978.
7.3. Rule 6 of the OAS Class II Rules, 1978 provided for the
determination of vacancies by the State Government.
14
Rule 6 has been reproduced hereinbelow for ready
reference:
“6. Filing of vacancies. –
The State Government may decide the number of
vacancies in the service as may be required to be filled
up in any particular year:
Provided that no recruitment to the service
shall be made without the prior consultation with the
Commission”
(emphasis supplied)
7.4. Rule 3 of the OAS Class II, Rules 1978 provided that
recruitment to OAS Class II posts was to be made by
three methods – first, direct recruitment by competitive
examination [Rule 3(a)]; second, promotion from
amongst Gazetted Officers of a certain class [Rule 3(b)];
and third, selection of nonGazetted Officers [Rule 3(c)].
The proportion of candidates to be recruited by the
methods specified above as per Rule 8 of the OAS Class
II Rules, 1978 was – 50% by direct recruitment, 30% by
promotion, and 20% by selection.
Further, Rule 8(5) also mandated that the State was
required to consult the Orissa Public Service
15
Commission before appointment by way of promotion
and selection.
7.5. As per Rule 5 of the OAS Class II Rules, 1978,
recruitment to OAS Class II posts by way of selection or
promotion shall be in accordance with the Orissa Class
II Regulations, 1978, which outline the recruitment
process.
7.6. In accordance with Regulation 6(i) of the OAS Class II
Regulations, 1978, any recruitment process by way of
selection or promotion was to be initiated by the State by
calling for recommendations from Collectors, Heads of
Departments and Departments of Governments, who
were required to forward a list of candidates considered
suitable to the Administrative Department (i.e. the
Revenue Department).
On receipt of the recommendations, the
Administrative Department (i.e. the Revenue
Department) was required to place a list of
recommended candidates in a tabular form before a
Selection Board constituted under Regulation 3.
16
7.7. Under Regulation 7, the Selection Board was required to
consider the recommendations so received from the
Administrative Department, scrutinise the records
relating to the candidates who had been recommended,
and prepare a list of candidates who in the opinion of
the Selection Board are suitable for appointment to OAS
Class – II posts.
7.8. Thereafter, as per Regulation 8, the list prepared by the
Selection Board under Regulation 7 was required to be
referred to the Orissa Public Service Commission by the
State Government, along with the service records of the
all candidates whose names feature in the list.
7.9. After considering the list prepared under Regulation 7
along with other documents and records received from
the State Government, the Orissa Public Service
Commission was required to recommend a list of
candidates suitable for selection or promotion, as the
case may be, under Regulation 9.
7.10. The list of candidates recommended by the Orissa Public
Service Commission under Regulation 9 was required to
17
be placed before the State Government. The said list,
after any approval with modification, was to form the
final list from which appointments were to be made to
OAS Class – II posts by way of selection or promotion in
accordance with Regulation 10.
Thus, the recruitment process by way of selection or
promotion, as the case may be, initiated in accordance
with Regulation 6 would culminate on the making of a
final list as per Regulation 10. Appointments by way of
promotion or selection could be made only from amongst
the candidates whose names featured in the final list
prepared by the Commission, and placed before the
State Government.
7.11. In Deepak Agarwal & Another v. State of Uttar Pradesh &
Ors.3
this Court had held that the right to be considered
for promotion accrues on the date of consideration of
eligible candidates.4
3 (2011) 6 SCC 725.
4 See also Union of India & Ors. v. Krishna Kumar & Ors., 2019 (1) SCALE 691 (para 11);
and, State of Tripura & Ors. v. Nikhil Ranjan Chakraborty & Ors., (2017) 3 SCC 646 (paras 8
and 9).
18
The relevant extract of the decision is extracted
hereinbelow for ready reference:
“26. It is by now a settled proposition of law that a
candidate has the right to be considered in the light of
the existing rules, which implies the “rule in force” on the
date the consideration took place. There is no rule of
universal or absolute application that vacancies are to be
filled invariably by the law existing on the date when the
vacancy arises. The requirement of filling up old
vacancies under the old rules is interlinked with the
candidate having acquired a right to be considered for
promotion. The right to be considered for promotion
accrues on the date of consideration of the eligible
candidates. Unless, of course, the applicable rule, as
in Y.V. Rangaiah case [(1983) 3 SCC 284 : 1983 SCC
(L&S) 382] lays down any particular timeframe, within
which the selection process is to be completed. In the
present case, consideration for promotion took place after
the amendment came into operation. Thus, it cannot be
accepted that any accrued or vested right of the
appellants has been taken away by the amendment.”
(emphasis supplied)
7.12. In the present case, the names of 559 candidates,
including the contesting Respondents, were merely
recommended by their respective Departmental
Authorities under Regulation 6. The recruitment process
did not proceed any further in accordance with
Regulations 7, 8, 9 and 10. No final list of selected
candidates was placed by the Orissa Public Service
19
Commission before the State Government for the
purposes of appointment as against the vacancies of
2008.
As such, the contesting Respondents who had
merely been recommended by their respective
Departmental Authorities could not be considered to be
‘eligible’ for appointment by way of promotion or
selection under the erstwhile OAS Class II Regulations,
1978, since the steps set out in the regulations
mentioned below had not been completed prior to the
repeal of the old OAS Class II Rules, 1978 and the OAS
Class II Regulations, 1978:
Regulation 7 – preparation of a list of suitable
candidates by the Selection Board;
Regulation 8 – consultation with the Orissa Public
Service Commission;
Regulation 9 – recommendation of the Orissa
Public Service Commission; and,
20
Regulation 10 – preparation and placement of final
list before the State Government for appointment.
Thus, the contesting Respondents had not acquired
an accrued or vested right of selection or promotion to
OAS Class – II posts in accordance with the OAS Class II
Rules, 1978 and the OAS Class II Regulations, 1978,
since their names had never been considered for
selection or promotion beyond the stage contemplated
under Regulation 6.
7.13. Reliance placed by the Counsel for the Respondents on
Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors.5
in
order to submit that the vacancies which had arisen
under the old Rules would be governed by the old Rules,
is of no avail.
A similar submission was rejected by this Court in
Deepak Agarwal & Another v. State of Uttar Pradesh &
Ors.6
. The relevant excerpt of the decision is reproduced
hereinbelow:
5 (1983) 3 SCC 284.
6 (2011) 6 SCC 725.
21
“24. We are of the considered opinion that the judgment
in Y.V. Rangaiah case[(1983) 3 SCC 284 : 1983 SCC
(L&S) 382] would not be applicable in the facts and
circumstances of this case. The aforesaid judgment was
rendered on the interpretation of Rule 4(a)(1)(i) of the
Andhra Pradesh Registration and Subordinate Service
Rules, 1976. The aforesaid Rule provided for
preparation of a panel for the eligible candidates every
year in the month of September. This was a statutory
duty cast upon the State. The exercise was required to
be conducted each year. Thereafter, only promotion
orders were to be issued. However, no panel had been
prepared for the year 1976. Subsequently, the Rule was
amended, which rendered the petitioners therein
ineligible to be considered for promotion. In these
circumstances, it was observed by this Court that the
amendment would not be applicable to the vacancies
which had arisen prior to the amendment. The
vacancies which occurred prior to the amended Rules
would be governed by the old Rules and not the
amended Rules.
25. In the present case, there is no statutory duty cast
upon the respondents to either prepare a yearwise panel
of the eligible candidates or of the selected candidates
for promotion. In fact, the proviso to Rule 2 enables the
State to keep any post unfilled. Therefore, clearly there
is no statutory duty which the State could be mandated
to perform under the applicable Rules. The requirement
to identify the vacancies in a year or to take a decision
as to how many posts are to be filled under Rule 7
cannot be equated with not issuing promotion orders to
the candidates duly selected for promotion. In our
opinion, the appellants had not acquired any right to be
considered for promotion. Therefore, it is difficult to
accept the submissions of Dr. Rajeev Dhavan that the
vacancies, which had arisen before 1751999 had to be
filled under the unamended Rules.”
(emphasis supplied)
22
7.14. In the present case the contesting Respondents had
merely been recommended by the respective
Departmental Authorities under Regulation 6. The
recruitment process had not proceeded any further
thereafter. There was no timeframe prescribed for
completion of the recruitment process under the
erstwhile OAS Class – II Rules, 1978 or the OAS Class –
II Regulations, 1978.
7.15. In the meanwhile, the State restructured the Orissa
Administrative Service cadre, and constituted the Orissa
Revenue Service vide Resolutions dated 28.02.2009 and
25.05.2009.
As a part of the restructuring exercise, the
erstwhile OAS Class – II posts were abolished, and a
corresponding new cadre of Group ‘B’ posts in the newly
constituted Orissa Revenue Service was created.
7.16. The contesting Respondents have not challenged either
the abolition of OAS Class – II posts, or the creation of
the corresponding Orissa Revenue Service Group ‘B’
posts.
23
7.17. To the contrary, some of them have participated in the
proceedings of the D.P.C. convened on 30.04.2013 for
recruitment to the newly created Orissa Revenue Service
Group ‘B’ cadre.
After being considered, 6 of the contesting
Respondents were selected, while 1 was kept on the
Waiting List.
The State appointed the said Respondents to the
Orissa Revenue Service Group ‘B’ posts. However, only
two out of the five contesting Respondents who were
appointed, joined the posts.
7.18. Subsequently, during the pendency of the W.P.s,
another D.P.C. was convened to consider the promotion
of employees working in the Orissa Revenue Services
Group ‘B’ posts to Orissa Administrative Service Group A
(Junior Branch) posts.
1 contesting Respondent was promoted to the OAS
Group A (Junior Branch) cadre.
24
7.19. The contesting Respondents cannot claim any lien over
the abolished OAS Class – II posts, which were governed
by the old OAS Class II Rules, 1978 and OAS Class II
Regulations, 1978.
7.20. In this context, reliance may be placed on two decisions
of this Court in Rajasthan Public Service Commission v.
Chanan Ram7 and Union of India & Ors. v. Krishna
Kumar & Ors.8
.
In Rajasthan Public Service Commission v. Chanan
Ram9
this Court rejected a claim for filing up vacancies
in posts which no longer existed, after an amendment of
the extant Rules.
The relevant excerpt of the decision is reproduced
hereinbelow for ready reference:
“14. …Once it is held that the old vacancies were in
posts which no longer existed after April 1995, there
remained no occasion to consider whether these old
vacancies could be filled in by applying earlier rules of
recruitment to the very same posts…There were no such
posts after April 1995 in the cadres of the Rajasthan
Agricultural Marketing Service as seen earlier…
7 (1998) 4 SCC 202.
8 2019 (1) SCALE 691.
9 (1998) 4 SCC 202.
25
15. …On the contrary a threeJudge Bench judgment of
this Court in the case of Jai Singh Dalal v. State of
Haryana [1993 Supp (2) SCC 600 : 1993 SCC (L&S) 846
: (1993) 24 ATC 788] would squarely get attracted on
the facts of the present case. A.M. Ahmadi J., speaking
for the threeJudge Bench in para 7 of the Report
relying on an earlier judgment of this Court in case
of State of Haryana v. Subash Chander Marwaha [(1974)
3 SCC 220 : 1973 SCC (L&S) 488] laid down that when
the special process of recruitment had not been
finalised and culminated into select list the candidate
did not have any right to appointment. In this
connection it was observed that the recruitment process
could be stopped by the Government at any time before
a candidate has been appointed. A candidate has no
vested right to get the process completed and at the
most the Government could be required to justify its
action on the touchstone of Article 14 of the
Constitution.”
(emphasis supplied)
In Union of India & Ors. v. Krishna Kumar & Ors.10
this Court was dealing with a similar situation of cadre
restructuring.
The relevant extract of the decision is reproduced
hereinbelow for ready reference:
“14. In view of this statement of the law, it is evident
that once the structure of Assam Rifles underwent a
change following the creation of the intermediate
post of Warrant Officer, persons holding the
post of Havildar would be considered for promotion to the
post of Warrant Officer. The intermediate post of Warrant
Officer was created as a result of the restructuring
10 2019 (1) SCALE 691.
26
exercise. The High Court was, in our view, in error in
postulating that vacancies which arose prior to the
amendment of the Recruitment Rules would necessarily
be governed by the Rules which existed at the time of the
occurrence of the vacancies. As the decided cases noted
earlier indicate, there is no such rule of absolute or
universal application. The entire basis of the
decision of the High Court was that those who were
recruited prior to the restructuring exercise and were
holding the post of Havildars had acquired a vested
right of promotion to the post of Naib Subedar. This does
not reflect the correct position in law. The right is to be
considered for promotion in accordance with the Rules as
they exist when the exercise is carried out for promotion.”
(emphasis supplied)
7.21. The submission of the contesting Respondents that their
case be considered at par with the candidates appointed
by way of selection and promotion as against the
vacancies for the years 2001 to 2005 is not tenable.
The appointments of persons as against the
vacancies for the years 2001 to 2005 were made vide two
Notifications dated December 7, 2010, which were
issued prior to the repeal of the old OAS Class II Rules,
1978 and the OAS Class II Regulations, 1978.
7.22. Finally, the High Court had relied upon the decision in
Mukti Ranjan Acharya & Ors. v. State of Orissa & Ors.11
11 2012 (II) OLR 61.
27
[W.P. (C) No. 19827/2009; Decided on 16.04.2012] to
hold that promotions could be given under the repealed
OAS Class II Rules, 1978 and the OAS Class II
Regulations, 1978. The S.L.P. against this judgment had
been simply dismissed. The Counsel for the contesting
Respondents prayed for dismissal of the present Civil
Appeals by submitting that the said decision had been
affirmed by this Court vide Order dated 28.09.2012.
It is a wellsettled principle of law emerging from a
catena of decisions of this Court, including Supreme
Court Employees’ Welfare Association v. Union of India &
Anr.12 and State of Punjab v. Davinder Pal Singh
Bhullar13, that the dismissal of a S.L.P. in limine simply
implies that the case before this Court was not
considered worthy of examination for a reason, which
may be other than the merits of the case. Such in limine
dismissal at the threshold without giving any detailed
reasons, does not constitute any declaration of law or a
binding precedent under Article 141 of the Constitution.
12 (1989) 1 SCC 187 (paras 22 and 23).
13 (2011) 14 SCC 770 (paras 112 and 113).
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8. On the aforesaid grounds, we hold that the Judgment of the
Division Bench is liable to be set aside since the contesting
Respondents did not have a vested or fructified right of
promotion to OAS Class II posts which had arisen during the
recruitment year 2008. The names of the contesting
Respondents were merely recommended for consideration. In
the meanwhile, in 2009 the State had restructured the cadre,
and abolished the OAS Class II cadre. The reconstituted cadre
viz. the Orissa Revenue Service Group ‘B’ cadre came in its
place. Hence, the direction of the Division Bench to appoint
the contesting Respondents in the vacancies which had
occurred in the abolished cadre, in accordance with the
repealed 1978 Rules, was contrary to law, and liable to be set
aside.
In view of the aforesaid findings, the present Civil
Appeals are allowed. The common impugned Judgment and
Order dated 30.04.2018 passed by the Orissa High Court in
W.P. (C) Nos. 14831 of 2013, 18749 of 2012, 6720 of 2013,
25961 of 2017 and 9200 of 2016 as well as the impugned
Orders dated 08.08.2018 and 10.08.2018 passed by the Orissa
29
High Court in W.P. (C) Nos. 7383 and 14665/2018 are set
aside.
Pending Interlocutory Applications, if any, are disposed
of in terms of the Judgment.
Ordered accordingly.
…..……...........................J.
(UDAY UMESH LALIT)
..….……..........................J.
(INDU MALHOTRA)
New Delhi
May 6, 2019.
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