UNION OF INDIA & ORS. versus KRISHNA KUMAR & ORS.

[2019] 1 S.C.R. 982

[2019] 1 S.C.R.

UNION OF INDIA & ORS.

KRISHNA KUMAR & ORS.

(Civil Appeal No. 672 of 2019)

JANUARY 14, 2019

[DR. DHANANJAYA Y CHANDRACHUDAND HEMANT GUPTA, JJ.]

Assam Rifles Warrant Officer (General Duty) Group ‘C’CCombatised Posts Recruitment Rules, 2012 – Promotion to the postof Naib Subedar after re-structuring of Assam Rifles in 2011 andcreation of Recruitment Rules in 2012 – Eligibility of – In 2011,Union of India introduced an intermediate rank of Warrant officerby the abolition/upgradation of one post of Havildar – Thereafter,

DRecruitment Rules, 2012 were notified – In terms of the RecruitmentRules, 2012 the post of Warrant Officer was created which wasrequired to be filled up by promotion amongst members of the AssamRifles holding the rank of Havildar – Consequently, promotion orderswere issued for Havildars to the newly created post of WarrantOfficer – Writ proceedings were instituted with grievance that theEpromotion ought to have been made to the rank of Naib Subedar –Writ petition allowed by the High Court – On appeal, held: Theentire basis of the decision of the High Court was that those whowere recruited prior to the restructuring exercise and were holdingthe post of Havildars had acquired vested right of promotion toFthe post of Naib Subedar – This does not reflect the correct positionin law – The right is to be considered for promotion in accordancewith the Rules as they exist when the exercise is carried out forpromotion – Thus, once the structure of the Assam Rifles underwenta change following the creation of the intermediate post of Warrantofficer, persons holding the post of Havildar would be consideredGfor promotion to the post of Warrant Officer – Service Law.

Respondents were appointed between 1982 and 1989 onthe post of Rifleman in Assam Rifles. At the relevant point oftime they were working as Havildars. Under the Rules, as theyexisted earlier, the promotional avenue for Havildar lay to theH

post of Naib Subedar. In 2011, Union of India introduced anintermediate rank of Warrant officer by the abolition/upgradationof one post of Havildar. In terms of the new Recruitment Rulesi.e. Assam Rifles Warrant Officer (General Duty) Group ‘C’combatised Posts Recruitment Rules, 2012, the post of WarrantOfficer was created which was required to be filled up bypromotion amongst members of the Assam Rifles holding therank of Havildar. Consequent to which, promotion orders wereissued for Havildars to the newly created post of Warrant Officer.Writ proceedings were instituted. The High Court allowed thewrit petition and held that vacancies which arose prior to theamendment of the Recruitment Rules would necessarily begoverned by the Rules which existed at the time of the occurrenceof the vacancies. Hence, present Appeals.

Disposing of the appeals, the Court

HELD: 1. It is well-settled that there is no vested right topromotion, but right be considered for promotion in accordancewith the Rules which prevail on the date on which considerationfor promotion takes place. This Court has held that there is norule of universal application to the effect that vacancies mustnecessarily be filled in on the basis of the law which existed onthe date when they arose. The decision of this Court in Y.V.Rangaiahvs. Sreenivasa Raohas been construed in subsequentdecisions as case where the applicable Rules required theprocess of promotion or selection to be completed within astipulated time frame. Hence, it has been held in H.S. Grewalvs.Union of Indiathat the creation of an intermediate post wouldnot amount to an interference with the vested right to promotion.[Para 11][987-F-H; 988-A]2. Once the structure of Assam Rifles underwent changefollowing the creation of the intermediate post of Warrant Officer,persons holding the post of Havildar would be considered forpromotion to the post of Warrant Officer. The intermediate postof Warrant Officer was created as result of the restructuringexercise. The High Court was in error in postulating thatvacancies which arose prior to the amendment of the RecruitmentRules would necessarily be governed by the Rules which existed

Aat the time of the occurrence of the vacancies. As the decidedcases noted earlier indicate, there is no such rule of absolute oruniversal application. The entire basis of the decision of the HighCourt was that those who were recruited prior to the restructuringexercise and were holding the post of Havildars had acquired avested right of promotion to the post of Naib Subedar. This doesBnot reflect the correct position in law. The right is to beconsidered for promotion in accordance with the Rules as theyexist when the exercise is carried out for promotion. [Para14][989-E-G]

Y.V. Rangaiah v. Sreenivasa Rao (1983) 3 SCC 284;CH.S. Grewal v. Union of India (1997) 11 SCC 758;Deepak Agarwal v. State of Uttar Pradesh (2011) 6 SCC725 : [2011] 4 SCR 149; State of Tripura v. NikhilRanjan Chakraborty (2017) 3 SCC 646 – relied on.

From the Judgment and Order dated 10.12.2013 of the HighCourt of Manipur at Imphal in Writ Petition No. 590 of 2012.FWITH

Civil Appeal Nos. 673 of 2019 @ SLP (C) No. 30337 of 2014,and 674 of 2019 @ SLP(C) No. 30334 of 2014.

Ms. Pinky Anand, ASG, Ms. V. Mohana, Sr. Adv., T. A. Khan,GShankar Divate, Hemant Arya, Bipin Kurian, Anish Kumar Gupta,Chandra Shekhar Suman, B. V. Balaram Das, B. Krishna Prasad, K. G.Bhagat, Ms. Archna Midha, Vineet Bhagat, Niraj Jha, Vinod Sharma,Pawan Reley, Advs. for the appearing parties.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

CIVIL APPEAL (@ SLP(C) No.26451 of 2014)

1. Leave granted.

2. This appeal arises from an order of learned Single Judge ofthe High Court of Manipur dated 10 December 2013. The High Court,by its impugned order, has issued direction to the appellants to considerthe case of the respondents (the petitioners before the High Court) ifthey are eligible and within the zone of consideration for promotion tothe post of Naib Subedar against vacancies which occurred prior to thechanges that were made in the structure of Assam Rifles in 2011 andbefore the enforcement of the Recruitment Rules for Warrant Officerin 2012. The High Court directed that such an exercise be carried out inrespect of other Havildars against vacancies which had occurred priorto 2011.

3. The respondents were appointed between 1982 and 1989 onthe post of Rifleman in Assam Rifles. At the relevant point of time, theywere working as Havildars. Under the Rules, as they existed earlier,the promotional avenue for Havildar lay to the post of Naib Subedar.Following the recommendations of the Sixth Pay Commission, the Unionof India in the Ministry of Home Affairs conveyed its sanction on 3March 2011 for the introduction of an intermediate rank of WarrantOfficer by the abolition/upgradation of one post of Havildar. On 16June, 2012, the Assam Rifles Warrant Officer (General Duty) Group‘C’ Combatised Posts Recruitment Rules, 2012 were notified. In termsof the Recruitment Rules, the post of Warrant Officer was created whichwas required to be filled up by promotion amongst members of the AssamRifles holding the rank of Havildar (General Duty) with five years’ regularservice in the grade and possessing the requisite educational qualifications.The Rules, inter alia, stipulated the following conditions for promotion:

“Promotion amongst the members of Assam Rifles holding therank of Havildar (General Duty) with five years regular servicein the grade and possessing the following educational qualifications,namely:-

(i) Map reading standard one-Pass

A(ii) Promotion cadre passed – Pass

(iii) Technical Trade Test One – Pass

Note 1: Where juniors who have completed their qualifying oreligibility service are considered for promotion their seniors wouldalso be considered provided they are not short of the requisiteBqualifying or eligibility service for more than half of such qualifyingor eligibility service or two years, whichever is less, and havesuccessfully completed their probation period for promotion tothe next grade with their juniors who have already completedsuch qualifying or eligibility service.

Note 2: For the purpose of counting minimum qualifying servicefor promotion, the service rendered on regular basis by an officerprior to the 1[st] January, 2006 i.e. the date from which the revisedpay structure band or the Sixth Central Pay Commissionrecommendations has been extended, shall be deemed to be serviceDrendered in the corresponding grade pay or pay scale extendedbased on the recommendations of the Commission.”

4. On 13 August 2012, promotion orders were issued for Havildarsto the newly created post of Warrant Officer. The respondents werepromoted as Warrant Officers.E5. Writ proceedings were instituted before the High Court with agrievance that the promotion from the post of Havildar was to lowerand inferior rank of Warrant Officer, whereas the promotion ought tohave been made to the rank of Naib Subedar.

6. The High Court allowed the writ petition by holding that despiteFthe changes which were brought about in the structure of Assam Riflesin 2011, rights which accrued prior to the enforcement of the changedstructure in favour of Havildars for being considered for promotion asNaib Subedars, were required to be enforced. The High Court observedthat:

G“It is now well settled that vacancies occurring prior to amendmentor creation of Recruitment Rules, are to be governed by the Ruleswhich existed at the time of occurrence of the vacancy.”

7. On this basis, the High Court directed the appellants to considerthe case of the respondents and other Havildars for promotion to the

post of Naib Subedars against vacancies which had occurred prior tothe changes which were carried out in 2011 and before the enforcementof the Recruitment Rules, 2012.

8. Assailing the judgment, the Union of India is in appeal.

9. Ms. Pinky Anand, learned Additional Solicitor General appearingon behalf of the appellants, submits that the High Court has proceededon the erroneous basis that vacancies which occurred prior to theamendment of the Recruitment Rules were required to be governed bythe erstwhile provisions under which the promotion from the post ofHavildar would lie to the post of Naib Subedar. The learned AdditionalSolicitor General submitted that once there was change in the structureof Assam Rifles in 2011 and the Recruitment Rules of 2012 prescribethat promotion from the post of Havildar would lie to the post of WarrantOfficer, the High Court was not justified in issuing the above directions.

10. On the other hand, it has been submitted on behalf of therespondents that if Havildars are to be promoted as the Warrant Officers,that would violate their fundamental rights under Articles 14 and 16 ofthe Constitution. Learned counsel submits that under the Rules, as theyprevailed prior to the restructuring of Assam Rifles, promotion forHavildars lay to the post of Warrant Officer. While the respondentshave not challenged the Recruitment Rules, as noted by the High Court,they urge that vacancies which have arisen prior to 2011 must be filledup by promoting Havildars eligible for promotion to the post of NaibSubedars.11. In considering the rival submissions, it must, at the outset, benoted that it is well-settled that there is no vested right to promotion, buta right be considered for promotion in accordance with the Rules whichprevail on the date on which consideration for promotion takes place.This Court has held that there is no rule of universal application to theeffect that vacancies must necessarily be filled in on the basis of the lawwhich existed on the date when they arose. The decision of this Courtin Y.V. RangaiahVs. Sreenivasa Rao1has been construed in subsequentdecisions as case where the applicable Rules required the process ofpromotion or selection to be completed within stipulated time frame.Hence, it has been held in H.S. GrewalVs. Union of India2that thecreation of an intermediate post would not amount to an interference

1 (1983) 3 SCC 284

2 (1997) 11 SCC 758

Awith the vested right to promotion. two-Judge Bench of this Courtheld thus:

“...Such an introduction of an intermediate post does not, in ouropinion, amount to interfering with any vested rights cannot beinterfered with, is to be accepted as correct. What all has happenedBhere is that an intermediate post has been created prospectivelyfor future promotions from Group-B Class-II to Group-A Class-I.If, before these rules of 1981 came into force, these officers wereeligible to be directly promoted as Commandant under the 1974rules but before they got any such promotions, the 1981 Rulescame in obliging them to go through an intermediate post, thisCdoes not amount to interfering with any vested rights.”12. In Deepak AgarwalVs. State of Uttar Pradesh3, this Courtobserved thus:

“26. It is by now settled proposition of law that candidate hasthe right to be considered in the light of the existing rules, whichDimplies the `rules in force’ on the date the consideration took place.There is no rule of universal or absolute application that vacanciesare to be filled invariably by the law existing on the date when thevacancy arises. The requirement of filling up old vacancies underthe old rules is interlinked with the candidate having acquired aright to be considered for promotion. The right to be consideredEfor promotion accrues on the date of consideration of the eligiblecandidates. Unless, of course, the applicable rule, as in Y.V.Rangaiah’s case (supra) lays down any particular time frame,within which the selection process is to be completed. In thepresent case, consideration for promotion took place after theFamendment came into operation. Thus, it cannot be accepted thatany accrued or vested right of the appellants have been takenaway by the amendment. The judgments cited by learned counselfor the appellants namely B.L. Gupta Vs. MCD (supra), P.Ganeshwar Rao Vs. State of Andhra Pradesh (supra) and N.T.Devin Katti & Ors. Vs. Karnataka Public Service CommissionG& Ors (supra) are reiterations of principle laid down in Y.V.Rangaiah’s case (supra).”

13. Recently, in State of TripuraVs. Nikhil Ranjan Chakraborty4,another two-Judge Bench of this Court held thus:

3 (2011) 6 SCC 725H 4 (2017) 3 SCC 646

“The law is thus clear that candidate has the right to be consideredin the light of the existing rules, namely, “rules in force on thedate” the consideration takes place and that there is no rule ofabsolute application that vacancies must invariably be filled bythe law existing on the date when they arose. As against the caseof total exclusion and absolute deprivation of chance to beconsidered as in the case of Deepak Agarwal (supra), in the instantcase certain additional posts have been included in the feedercadre, thereby expanding the zone of consideration. It is not as ifthe writ petitioners or similarly situated candidates were totallyexcluded. At best, they now had to compete with some morecandidates. In any case, since there was no accrued right norwas there any mandate that vacancies must be filled invariablyby the law existing on the date when the vacancy arose, the Statewas well within its rights to stipulate that the vacancies be filled inaccordance with the Rules as amended. Secondly, the process toamend the Rules had also begun well before the Notification dated24.11.2011.”

14. In view of this statement of the law, it is evident that once thestructure of Assam Rifles underwent change following the creation ofthe intermediate post of Warrant Officer, persons holding the post ofHavildar would be considered for promotion to the post of WarrantOfficer. The intermediate post of Warrant Officer was created as aresult of the restructuring exercise. The High Court was, in our view, inerror in postulating that vacancies which arose prior to the amendmentof the Recruitment Rules would necessarily be governed by the Ruleswhich existed at the time of the occurrence of the vacancies. As thedecided cases noted earlier indicate, there is no such rule of absolute oruniversal application. The entire basis of the decision of the High Courtwas that those who were recruited prior to the restructuring exerciseand were holding the post of Havildars had acquired vested right ofpromotion to the post of Naib Subedar. This does not reflect the correctposition in law. The right is to be considered for promotion in accordancewith the Rules as they exist when the exercise is carried out for promotion.

15. Hence, we see merit in the appeal. We accordingly allow theappeal and set aside the impugned judgment and order of the High Court.There shall, however, be no order as to costs.

ACIVIL APPEALS [@SLP(C) No.30337 of 2014) and SLP(C)No.30334 of 2014]

16. Applications for impleadment are allowed.

17. Delay condoned.

B18. Leave granted.

19. In view of the judgment delivered today in Union of IndiaVs.Krishna Kumar[Civil Appeal @SLP(C) No.26451 of 2014], theseappeals are accordingly disposed of. No costs.

CAnkit Gyan

Appeals disposed of.