STATE OF ORISSA & ANR. versus DHIRENDRA SUNDAR DAS & ORS.

[2019] 7 S.C.R. 197

STATE OF ORISSA & ANR.

DHIRENDRA SUNDAR DAS & ORS.

(Civil Appeal No. 4646 of 2019)

MAY 06, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Service Law – Appointment – On 28.04.08 the appellant-Stateissued letter to all the Departments inviting recommendations forappointment by way of promotion to the Orissa Administrative ServiceClass-II (OAS Class-II) cadre having 150 vacancies – Recruitmentprocess was to be undertaken in accordance with the 1978 Rulesand the 1978 Regulations – Concerned Departmental Authoritiesforwarded the names of 559 candidates, including the Respondents,for consideration – State decided to keep the recruitment processfor OAS Class-II posts for the recruitment year 2008 on hold, tillthe process of recruitment for the years 2001-2005 was completed– Aggrieved by the delay, OAs filed by the Respondents before theTribunal – State undertook restructuring of the Orissa AdministrativeService in Feb. 2009 – Existing cadre of OAS Class-II posts wasabolished and corresponding cadre of the Orissa Revenue ServiceGroup ‘B’ cadre was created – State appointed candidates on OASClass-II posts for the recruitment years 2001 to 2005 – 1978 Rulesunder which the 2008 recruitment process had been initiated,repealed– Tribunal directed the State to take immediate steps to fillup Class- II/Group‘B’ posts in the Orissa Revenue Service cadre –Challenge by the Respondents –Judgment of the Tribunal set aside–On appeal, held: Respondents cannot claim an accrued or vestedright for selection or promotion to OAS Class-II posts, merely onthe basis of their names being forwarded – Their names were merelyrecommended by their respective Departmental Authorities underRegulation 6 – Recruitment process did not proceed any further inaccordance with Regulations 7-10 – Respondents can not beconsidered to be ‘eligible’ for appointment under the erstwhile 1978Regulations, since the steps set out in the aforesaid regulations hadnot been completed prior to the repeal of the old 1978 Rules andthe 1978 Regulations – Further, the respondents did not challenge

198SUPREME COURT REPORTS

Aeither the abolition of OAS Class-II posts, or the creation of thecorresponding Orissa Revenue Service Group ‘B’ posts – To thecontrary, some of them participated in the proceedings of the D.P.C.convened on 30.04.2013 for recruitment to the newly created OrissaRevenue Service Group ‘B’ cadre – Judgment of the Division Benchset aside – Orissa Administrative Service, Class II (Recruitment)BRules, 1978 – Orissa Administrative Service, Class-II (Appointmentby Promotion and Selection) Regulations, 1978 – OrissaAdministrative Services (Method of Recruitment and Conditions ofService) Rules, 2011 – Orissa Revenue Service (Recruitment) Rules,2011.

Practice & Procedure – In limine dismissal of SLP – Effect of– Held: Dismissal of S.L.P. in limine simply implies that the casebefore the court was not considered worthy of examination for areason, which may be other than the merits of the case – Such inlimine dismissal at the threshold without giving any detailed reasons,Ddoes not constitute any declaration of law or binding precedentu/Art.141 – Constitution of India – Art.141.

Allowing the appeals, the Court

HELD: 1.1 Contesting Respondents cannot claim anaccrued or vested right for selection or promotion to OAS ClassE-II posts in the year 2008, merely on the basis of their namesbeing forwarded by the respective Departmental Authorities.When the recruitment process for 2008 was initiated vide Letterdated April 28, 2008 by the State, the extant rules and regulationsoccupying the field for selection and promotion to OAS Class-IIFposts were the Orissa Administrative Service, Class II(Recruitment) Rules, 1978 and the Orissa Administrative Service,Class-II (Appointment by Promotion and Selection) Regulations,1978. Rule 6 of the OAS Class II Rules, 1978 providedfor the determination of vacancies by the State Government.[Paras 7.1-7.3] [208-B-D]G1.2 Rule 3 of the OAS Class II, Rules 1978 provided thatrecruitment to OAS Class II posts was to be made by threemethods– first, direct recruitment by competitive examination[Rule 3(a)]; second, promotion from amongst Gazetted Officersof certain class [Rule 3(b)]; and third, selection of non-Gazetted

Officers [Rule 3(c)]. The proportion of candidates to be recruitedby the methods specified above as per Rule 8 of the OAS ClassII Rules, 1978 was– 50% by direct recruitment, 30% bypromotion, and 20% by selection. In accordance with Regulation6(i) of the OAS Class II Regulations, 1978, any recruitmentprocess by way of selection or promotion was to be initiated bythe State by calling for recommendations from Collectors, Headsof Departments and Departments of Governments, who wererequired to forward list of candidates considered suitable tothe Administrative Department (i.e. the Revenue Department).On receipt of the recommendations, the AdministrativeDepartment (i.e. the Revenue Department) was required to placea list of recommended candidates in tabular form before aSelection Board constituted under Regulation 3. [Paras 7.4-7.6][208-G; 209-A-E]

1.3 Under Regulation 7, the Selection Board was requiredto consider the recommendations so received from theAdministrative Department, scrutinise the records relating tothe candidates who had been recommended, and prepare list ofcandidates who in the opinion of the Selection Board are suitablefor appointment to OAS Class – II posts. Thereafter, as perRegulation 8, the list prepared by the Selection Board underRegulation 7 was required to be referred to the Orissa PublicService Commission by the State Government, along with theservice records of the all candidates whose names feature in thelist. The list of candidates recommended by the Orissa PublicService Commission under Regulation 9 was required to be placedbefore the State Government. The said list, after any approvalwith modification, was to form the final list from whichappointments were to be made to OAS Class-II posts by way ofselection or promotion in accordance with Regulation 10. In thepresent case, the names of 559 candidates, including thecontesting Respondents, were merely recommended by theirrespective Departmental Authorities under Regulation 6. Therecruitment process did not proceed any further in accordancewith Regulations 7, 8, 9 and 10. No final list of selected candidateswas placed by the Orissa Public Service Commission before theState Government for the purposes of appointment as against

Athe vacancies of 2008. There was no time-frame prescribed forcompletion of the recruitment process under the erstwhile OASClass-II Rules, 1978 or the OAS Class-II Regulations, 1978.[Paras 7.7-7.9, 7.10, 7.12 and 7.14] [209-F-H; 210-A-C;211-C-D; 213-D-E]

B1.4 The contesting Respondents have not challenged eitherthe abolition of OAS Class – II posts, or the creation of thecorresponding Orissa Revenue Service Group ‘B’ posts. To thecontrary, some of them participated in the proceedings of theD.P.C. convened on 30.04.2013 for recruitment to the newlycreated Orissa Revenue Service Group ‘B’ cadre. After beingCconsidered, 6 of the contesting Respondents were selected, while1 was kept on the Waiting List. The State appointed the saidRespondents to the Orissa Revenue Service Group ‘B’ posts.However, only two out of the five contesting Respondents whowere appointed, joined the posts. Subsequently, during theDpendency of the W.P.s, another D.P.C. was convened to considerthe promotion of employees working in the Orissa RevenueServices Group ‘B’ posts to Orissa Administrative Service GroupA (Junior Branch) posts. 1 contesting Respondent was promotedto the OAS Group (Junior Branch) cadre. The contestingRespondents cannot claim any lien over the abolished OAS Class-EII posts, which were governed by the old OAS Class II Rules,1978 and OAS Class II Regulations, 1978. The appointments ofpersons as against the vacancies for the years 2001 to 2005 weremade vide two Notifications dated December 7, 2010, which wereissued prior to the repeal of the old OAS Class II Rules, 1978Fand the OAS Class II Regulations, 1978. [Paras 7.15-7.19 and7.21] [213-G-H; 214-A-D; 216-D-E]

1.5 The dismissal of S.L.P. in limine simply implies thatthe case before this Court was not considered worthy ofexamination for reason, which may be other than the merits ofGthe case. Such in limine dismissal at the threshold without givingany detailed reasons, does not constitute any declaration of lawor binding precedent under Article 141 of the Constitution.The Judgment of the Division Bench is liable to be set asidesince the contesting Respondents did not have vested orfructified right of promotion to OAS Class II posts which hadH

STATE OF ORISSA & ANR. v. DHIRENDRA SUNDAR DAS &ORS.

arisen during the recruitment year 2008. The direction of theDivision Bench to appoint the contesting Respondents in thevacancies which had occurred in the abolished cadre, inaccordance with the repealed 1978 Rules, was contrary to law,and liable to be set aside. [Paras 7.22 and 8] [217-A-D]

Union of India & Ors. v. Krishna Kumar & Ors. 2019(1) SCALE 691 ; Deepak Agarwal & Another v. Stateof Uttar Pradesh & Ors. (2011) 6 SCC 725 : [2011] 4SCR 149 ; State of Tripura & Ors. v. Nikhil RanjanChakraborty & Ors. (2017) 3 SCC 646 ; Rajasthan PublicService Commission v. Chanan Ram (1998) 4 SCC 202 ;Supreme Court Employees’ Welfare Association v. Unionof India & Anr. (1989) 1 SCC 187 : [1989] 3 SCR 488 ; State of Punjab v. Davinder Pal Singh Bhullar(2011) 14 SCC 770 : [2011] 15 SCR 540 – relied on.

Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors. (1983)3 SCC 284 ; Mukti Ranjan Acharya & Ors. v. State ofOrissa & Ors. 2012 (II) OLR 61 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4646of 2019.

From the Judgment and Order dated 30.04.2018 of the High Courtof Orissa at Cuttack in Writ Petition (Civil) No. 14831 of 2013.

With

Civil Appeal Nos. 4647, 4648, 4649, 4650, 4651, 4652 of 2019.

ARavi Prakash Mehrotra, Ankit Agarwal, Advs. for the Appellants.Ms. Meenakshi Arora, Sr. Adv., Soumyajit Pani, B. S. Tripathy,Vinodh Kanna B., Shibashish Misra, Advs. for the Respondents.

The Judgment of the Court was delivered by

BINDU 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. 4976-4980/2019 arise out of the commonimpugned Judgment and Order dated 30.04.2018 passed by DivisionCBench 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 theimpugned Orders dated 08.08.2018 and 10.08.2018 passed by DivisionBench of the Orissa High Court whereby W.P. (C) Nos. 7383 and 14665/D2018 were disposed of in terms of the common impugned Judgment andOrder dated 30.04.2018.

2. The factual matrix in which the present Civil Appeals arise forconsideration, briefly stated, are as under:

2.1.On 28.04.2008, Letter was issued by the Appellant – StateEof Orissa (“State”) to all Departments, Heads ofDepartments, and Collectors inviting recommendations forappointment by way of promotion to the OrissaAdministrative Service Class – II (“OAS Class – II”) cadrehaving 150 vacancies. The recruitment process was to beFundertaken in accordance with the Orissa AdministrativeService, Class II (Recruitment) Rules, 1978 (“OAS ClassII Rules, 1978”) and the Orissa Administrative Service,Class – II (Appointment by Promotion and Selection)Regulations, 1978 (“OAS Class II Regulations, 1978”).

G2.2.The concerned Departmental Authorities forwarded thenames of 559 candidates, including the contestingRespondents, for consideration to be promoted/selected toOAS Class – II posts.

2.3.The State issued Office Order dated 07.06.2008, forHimplementation of the Judgment dated 11.04.2007 passed

by the Orissa Administrative Tribunal, Cuttack Bench(“O.A.T.”).

The O.A.T. had directed the State to separately assessthe vacancies for the years 2001 to 2005 year wise, conductthe process of calling for names, hold D.P.C. in accordancewith established procedure, and make appointments withina period of six months.

2.4.In this background, the State decided to keep the recruitmentprocess for OAS Class – II posts for the recruitment year2008 on hold, till the process of recruitment by way ofpromotion/selection for the years 2001-2005 was completed.

2.5.Pursuant to the Judgment of the Tribunal, the State videLetter dated 19.06.2008 called for recommendations for theyears 2001 to 2005 from all Departments, Heads ofDepartments, and Collectors for recruitment to OASClass – II posts under Rule 3(c) of the OAS Class II Rules,1978.

2.6.Aggrieved by the delay in completion of the recruitmentprocess for the years 2007-2008, various O.A.s were filedby the contesting Respondents, and other similarly situatedpersons, who had been recommended for consideration toOAS Class – II posts against the vacancies for 2008 beforethe O.A.T. The Applicants prayed for completion of therecruitment process by convening D.P.C.; and declarationof the selection list for the years 2007-2008 within month,and issuance of appointment letters.

2.7.The State undertook restructuring of the OrissaAdministrative Service in February 2009.

The re-structured Orissa Administrative Service cadrewould 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 (SpecialSecretary).

2.8.By Resolution dated 25.05.2009, the Orissa Revenue ServiceGroup ‘B’ cadre was constituted.

The existing cadre of OAS Class – II posts wasabolished. The corresponding cadre of OAS Class – II wasthe Orissa Revenue Service Group ‘B’ cadre.

2.9.The State vide two Notifications dated 07.12.2010 appointedcandidates on OAS Class – II posts by way of selectionand 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 theConstitution of India. The Rules came into force on25.06.2011.

Rule 17 of the OAS Rules, 2011 repealed the OAS ClassII Rules, 1978 under which the 2008 recruitment processhad been initiated.

Rule 4 of the OAS Rules, 2011 provides for recruitmentby promotion to Group ‘A’ (Junior Branch) posts of the reconstituted Orissa Administrative Service cadre frommembers of the Orissa Revenue Service.

Similarly, the Orissa Revenue Service (Recruitment)Rules, 2011 (“ORS Rules, 2011”) came into force on June27, 2011 to regulate the method of recruitment, and conditionsof service, of persons appointed to the Orissa RevenueService, including Group ‘B’ posts.

2.11. The O.A.T. vide Judgment dated 14.03.2012 decided theO.A.s filed by the contesting Respondents and other similarlysituated persons who were under consideration for thevacancies for the recruitment year 2008. The State wasdirected to take immediate steps to fill up Class – II/Group‘B’ posts in the Orissa Revenue Service cadre. 50% of thevacancies were to be filled up by direct recruitment, and50% by promotion from amongst Class – III/Group Cemployees as early as practicable, and preferably within sixmonths. The relief claimed by the contesting Respondentsand other similarly situated persons could not be grantedunless 50% of the available vacancies were first filled upby direct recruitment in accordance with the Rules. Thecontesting Respondents had merely been recommended by

their respective Departmental Authorities for promotionselection to OAS Class – II (Group B) posts. There was noSelection Board/D.P.C. which was convened, nor was anySelect List/Merit List prepared. The contesting Respondentswho were continuing against Class III posts, could beconsidered for promotion only to Class – II (Group B) posts,and not directly to Class – I (Group A) posts. No right hadaccrued in favour of the contesting Respondents to seekconvening of Selection Board/Department PromotionCommittee for appointment on OAS Class – II posts. Thecontesting Respondents would be eligible for considerationagainst the available Class – II/Group posts in thepromotional quota, after 50% of the vacancies were filledup by direct recruitment.

2.12. Aggrieved by the common Judgment and Order dated14.03.2012 passed by the O.A.T., the contestingRespondents filed W.P.s before the Orissa High Courtseeking quashing of the Judgment dated 14.03.2012 passedby the O.A.T.; issuance of directions to the State to completethe recruitment process to OAS Class – II posts on thebasis of the recommendations made in favour of thecontesting Respondents; and, grant promotion to thecontesting Respondents to OAS Class – II posts with allservice and promotional benefits from the date such benefitswere due.2.13. The Division Bench by the common impugned Judgmentand Order dated 30.04.2018 disposed of the W.P.s filed bythe contesting Respondents, and set aside the Judgmentdated 14.03.2012 passed by the O.A.T. The State Authoritieswere directed to call for review D.P.C. to consider thecases of the contesting Respondents, and other eligibleofficers, and complete the recruitment process for 150 vacantOAS Class – II posts as against the recruitment year of2008 within 3 months. The High Court held that the 150vacant OAS Class – II posts for which recommendationswere made in the year 2008, prior to the abolition of theOAS Class – II posts, and re-constitution of the OrissaRevenue Service cadre, be filled up under the OAS ClassII Rules, 1978.

A3. Aggrieved by the impugned Judgment and Order dated30.04.2018 as well as the impugned Orders dated 08.08.2018 and10.08.2018 passed by the Division Bench, the State has filed the presentSpecial Leave Petitions.

4. The issue which arises for our consideration in the presentBCivil Appeals is whether the Division Bench of the Orissa High Courtwas justified in directing the State to convene review D.P.C. forconsidering the case of the contesting Respondents and other eligibleofficers, and directing it to complete the recruitment process forrecruitment year of 2008 to the 150 vacant posts.

C5. SUBMISSIONSOF PETITIONERS

5.1. Mr. Ravi Prakash Mehrotra, Advocate on behalf of the Statesubmitted that the Division Bench had committed palpableerror in directing the State to convene review D.P.C.

5.2. Placing reliance on recent decision of this Court in UnionDof India & Ors. v. Krishna Kumar & Ors.[1], it was submittedthat no right had accrued in favour of the contestingRespondents merely on account of their names beingrecommended by the respective Departmental Authoritiesto be considered for selection/promotion against theEvacancies in the recruitment year 2008. The list of personsrecommended cannot be considered to be the approved listof candidates for selection/promotion, since no D.P.C. orSelection Committee was convened for the same.

5.3. It was further submitted that the contesting Respondentsdid not challenge the abolition of the OAS Class – II cadre,Fand the consequent creation of the Orissa Revenue ServiceGroup ‘B’ cadre.

5.4. The contesting Respondents could not claim lien over theOAS Class – II cadre, which had since been abolished in2009, and replaced by the Orissa Revenue Service GroupG‘B’ cadre.

5.5. Some of the contesting Respondents had submittedthemselves before the Selection Committee convened in2013, and another in 2018, under the new ORS Rules, 2011

H1 2019 (1) SCALE 691.

for appointment to vacant posts in the Orissa Revenue ServiceGroup ‘B’ cadre.

It was, therefore, not open to claim appointments to theOAS Class – II posts under the repealed Rules in an abolishedcadre.

5.6. The claim of the contesting Respondents cannot beconsidered at par with the candidates for the years 2001 to2005 as their appointments were made prior to the repeal ofthe OAS Class II Rules, 1978 and the OAS Class IIRegulations, 1978.

5.7. It was further submitted on behalf of the State that if thedirections of the Division Bench were to be carried out,supernumerary posts would be required to be created toaccommodate the contesting Respondents which was notpossible. This would create serious precedent, since therewere 559 candidates who were similarly situated as thecontesting Respondents, and had been recommended byvarious Departments in 2008.

6. SUBMISSIONSOF RESPONDENTS

6.1.Ms. Meenakshi Arora, learned Senior Advocate, submittedthat 150 vacant OAS Class – II posts were available in2008. The contesting Respondents were eligible, and wereduly recommended for appointment by way of selectionpromotion under the OAS Class II Rules, 1978 and the OASClass II Regulations, 1978.

6.2.The State, being model employer, cannot discriminate inthe matter of selection/promotion to OAS Class – II postson ‘pick-and-choose’ basis.

6.3.Admittedly, the OAS Class II Rules, 1978 and the OASClass II Regulations, 1978 were in force at the time whenthe State decided to fill up 150 OAS Class – II posts on28.04.2008. The vacancies were required to be filled upunder 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.

ASreenivasa Rao & Ors.[2]. It was submitted that vacancieswhich had occurred prior to the repeal of the OAS Class IIRules, 1978 and OAS Class II Regulations, 1978; and thecoming into force of the OAS Rules, 2011 and the ORSRules, 2011, would be governed by the old Rules, viz. OASClass II Rules, 1978 and OAS Class II Regulations, 1978.

7. DISCUSSIONANDANALYSIS

7.1. The contesting Respondents cannot claim an accrued orvested right for selection or promotion to OAS Class – IIposts in the year 2008, merely on the basis of their namesCbeing forwarded by the respective Departmental Authorities.

7.2. When the recruitment process for 2008 was initiated videLetter dated April 28, 2008 by the State, the extant rules andregulations occupying the field for selection and promotionto OAS Class – II posts were the OAS Class II Rules, 1978Dand the OAS Class II Regulations, 1978.

7.3. Rule 6 of the OAS Class II Rules, 1978 provided for thedetermination of vacancies by the State Government. Rule6 has been reproduced hereinbelow for ready reference:

“6. Filing of vacancies. –E

The State Government maydecide the number ofvacancies in the service as may be required to be filledup in any particular year:

Provided that no recruitment to the service shall bemade without the prior consultation with theFCommission”

(emphasis supplied)

7.4. Rule 3 of the OAS Class II, Rules 1978 provided thatrecruitment to OAS Class II posts was to be made by threeGmethods – first, direct recruitment by competitiveexamination [Rule 3(a)]; second, promotion from amongstGazetted Officers of certain class [Rule 3(b)]; and third,selection of non-Gazetted Officers [Rule 3(c)].

The proportion of candidates to be recruited by themethods specified above as per Rule 8 of the OAS Class IIRules, 1978 was – 50% by direct recruitment, 30% bypromotion, and 20% by selection.

Further, Rule 8(5) also mandated that the State wasrequired to consult the Orissa Public Service Commissionbefore appointment by way of promotion and selection.

7.5. As per Rule 5 of the OAS Class II Rules, 1978, recruitmentto OAS Class II posts by way of selection or promotionshall 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 IIRegulations, 1978, any recruitment process by way ofselection or promotion was to be initiated by the State bycalling for recommendations from Collectors, Heads ofDepartments and Departments of Governments, who wererequired to forward list of candidates considered suitableto the Administrative Department (i.e. the RevenueDepartment).

On receipt of the recommendations, the AdministrativeDepartment (i.e. the Revenue Department) was requiredto place list of recommended candidates in tabular formbefore Selection Board constituted under Regulation 3.

7.7. Under Regulation 7, the Selection Board was required toconsider the recommendations so received from theAdministrative Department, scrutinise the records relatingto the candidates who had been recommended, and preparea list of candidates who in the opinion of the Selection Boardare suitable for appointment to OAS Class – II posts.

7.8. Thereafter, as per Regulation 8, the list prepared by theSelection Board under Regulation 7 was required to bereferred to the Orissa Public Service Commission by theState Government, along with the service records of the allcandidates whose names feature in the list.

7.9. After considering the list prepared under Regulation 7 alongwith other documents and records received from the State

CDEF

Government, the Orissa Public Service Commission wasrequired to recommend list of candidates suitablefor selection or promotion, as the case may be, underRegulation 9.

7.10. The list of candidates recommended by the Orissa PublicService Commission under Regulation 9 was required to beplaced before the State Government. The said list, after anyapproval with modification, was to form the final list fromwhich appointments were to be made to OAS Class – IIposts by way of selection or promotion in accordance withRegulation 10.

Thus, the recruitment process by way of selection orpromotion, as the case may be, initiated in accordance withRegulation 6 would culminate on the making of final list asper Regulation 10. Appointments by way of promotion orselection could be made only from amongst the candidateswhose names featured in the final list prepared by theCommission, 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 consideredfor promotion accrues on the date of consideration of eligibleEcandidates.[4]

The relevant extract of the decision is extractedhereinbelow for ready reference:

“26. It is by now settled proposition of law that acandidate has the right to be considered in the light ofthe existing rules, which implies the “rule in force” onthe date the consideration took place. There is no ruleof universal or absolute application that vacancies areto be filled invariably by the law existing on the datewhen the vacancy arises. The requirement of filling upold vacancies under the old rules is interlinked withthe candidate having acquired right to be considered

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 SCCH 646 (paras 8 and 9).

for promotion. The right to be considered for promotionaccrues on the date of consideration of the eligiblecandidates.Unless, of course, the applicable rule, asin Y.V. Rangaiah case [(1983) 3 SCC 284 : 1983 SCC(L&S) 382] lays down any particular time-frame, withinwhich the selection process is to be completed. In thepresent case, consideration for promotion took placeafter the amendment came into operation. Thus, it cannotbe accepted that any accrued or vested right of theappellants has been taken away by the amendment.”

(emphasis supplied)

7.12. In the present case, the names of 559 candidates, includingthe contesting Respondents, were merely recommended bytheir respective Departmental Authorities under Regulation6. The recruitment process did not proceed any further inaccordance with Regulations 7, 8, 9 and 10. No final list ofselected candidates was placed by the Orissa Public ServiceCommission before the State Government for the purposesof appointment as against the vacancies of 2008.

As such, the contesting Respondents who had merelybeen recommended by their respective DepartmentalAuthorities could not be considered to be ‘eligible’ forappointment by way of promotion or selection under theerstwhile OAS Class II Regulations, 1978, since the stepsset out in the regulations mentioned below had not beencompleted prior to the repeal of the old OAS Class II Rules,1978 and the OAS Class II Regulations, 1978:

Regulation 7 – preparation of list of suitable candidatesby the Selection Board;

Regulation 8 – consultation with the Orissa PublicService Commission;

Regulation 9 – recommendation of the Orissa PublicService Commission; and,

Regulation 10 – preparation and placement of final listbefore the State Government for appointment.

Thus, the contesting Respondents had not acquiredan accrued or vested right of selection or promotion to OASClass – II posts in accordance with the OAS Class II Rules,1978 and the OAS Class II Regulations, 1978, since theirnames had never been considered for selection or promotionbeyond 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 orderto submit that the vacancies which had arisen under the oldRules would be governed by the old Rules, is of no avail.

similar submission was rejected by this Court inDeepak Agarwal & Another v. State of Uttar Pradesh &Ors.[6]. The relevant excerpt of the decision is reproducedhereinbelow:

“24.We are of the considered opinion that the judgmentin Y.V. Rangaiah case[(1983) 3 SCC 284 : 1983 SCC (L&S)382] would not be applicable in the facts and circumstancesof this case. The aforesaid judgment was rendered on theinterpretation of Rule 4(a)(1)(i) of the Andhra PradeshRegistration and Subordinate Service Rules, 1976. Theaforesaid Rule provided for preparation of panel for theeligible candidates every year in the month of September.This was statutory duty cast upon the State. The exercisewas required to be conducted each year. Thereafter, onlypromotion orders were to be issued. However, no panelhad been prepared for the year 1976. Subsequently, theRule was amended, which rendered the petitioners thereinineligible to be considered for promotion. In thesecircumstances, it was observed by this Court that theamendment would not be applicable to the vacancies whichhad arisen prior to the amendment. The vacancies whichoccurred prior to the amended Rules would be governed bythe old Rules and not the amended Rules.

25.In the present case, there is no statutory duty cast uponthe respondents to either prepare yearwise panel of the

5 (1983) 3 SCC 284.

6 (2011) 6 SCC 725.

eligible candidates or of the selected candidates forpromotion. In fact, the proviso to Rule 2 enables the Stateto keep any post unfilled. Therefore, clearly there is nostatutory duty which the State could be mandated to performunder the applicable Rules. The requirement to identify thevacancies in year or to take decision as to how manyposts are to be filled under Rule 7 cannot be equated withnot issuing promotion orders to the candidates duly selectedfor promotion. In our opinion, the appellants had not acquiredany right to be considered for promotion. Therefore, it isdifficult to accept the submissions of Dr. Rajeev Dhavanthat the vacancies, which had arisen before 17-5-1999 hadto be filled under the unamended Rules.”

(emphasis supplied)

7.14. In the present case the contesting Respondents had merelybeen recommended by the respective DepartmentalAuthorities under Regulation 6. The recruitment process hadnot proceeded any further thereafter. There was no timeframe prescribed for completion of the recruitment processunder the erstwhile OAS Class – II Rules, 1978 or the OASClass – II Regulations, 1978.

7.15. In the meanwhile, the State restructured the OrissaAdministrative Service cadre, and constituted the OrissaRevenue Service vide Resolutions dated 28.02.2009 and25.05.2009.

As part of the re-structuring exercise, the erstwhileOAS Class – II posts were abolished, and correspondingnew cadre of Group ‘B’ posts in the newly constituted OrissaRevenue Service was created.

7.16. The contesting Respondents have not challenged either theabolition of OAS Class – II posts, or the creation of thecorresponding Orissa Revenue Service Group ‘B’ posts.

7.17. To the contrary, some of them have participated in theproceedings of the D.P.C. convened on 30.04.2013 forrecruitment to the newly created Orissa Revenue ServiceGroup ‘B’ cadre.

After being considered, 6 of the contesting Respondentswere selected, while 1 was kept on the Waiting List.

The State appointed the said Respondents to the OrissaRevenue Service Group ‘B’ posts. However, only two outof the five contesting Respondents who were appointed,joined the posts.

7.18. Subsequently, during the pendency of the W.P.s, anotherD.P.C. was convened to consider the promotion ofemployees working in the Orissa Revenue Services Group‘B’ posts to Orissa Administrative Service Group (JuniorBranch) posts.

1 contesting Respondent was promoted to the OASGroup (Junior Branch) cadre.

7.19. The contesting Respondents cannot claim any lien over theabolished OAS Class – II posts, which were governed bythe old OAS Class II Rules, 1978 and OAS Class IIRegulations, 1978.

7.20. In this context, reliance may be placed on two decisions ofthis Court in Rajasthan Public Service Commission v.Chanan Ram[7]and Union of India & Ors. v. KrishnaEKumar & Ors.[8].

In Rajasthan Public Service Commission v. ChananRam[9]this Court rejected claim for filing up vacancies inposts which no longer existed, after an amendment of theextant Rules.

The relevant excerpt of the decision is reproducedhereinbelow for ready reference:

“14. …Once it is held that the old vacancies were in postswhich no longer existed after April 1995, there remainedno occasion to consider whether these old vacancies couldbe filled in by applying earlier rules of recruitment to thevery same posts…There were no such posts after April

7 (1998) 4 SCC 202.

8 2019 (1) SCALE 691.

H9 (1998) 4 SCC 202.

1995 in the cadres of the Rajasthan Agricultural MarketingService as seen earlier…

15. …On the contrary three-Judge Bench judgment ofthis Court in the case of Jai Singh Dalal v. State ofHaryana [1993 Supp (2) SCC 600 : 1993 SCC (L&S) 846: (1993) 24 ATC 788] would squarely get attracted on thefacts of the present case. A.M. Ahmadi J., speaking forthe three-Judge Bench in para 7 of the Report relying onan earlier judgment of this Court in case of State ofHaryana v. Subash Chander Marwaha [(1974) 3 SCC220 : 1973 SCC (L&S) 488] laid down that when the specialprocess of recruitment had not been finalised and culminatedinto select list the candidate did not have any right toappointment. In this connection it was observed that therecruitment process could be stopped by the Governmentat any time before candidate has been appointed. Acandidate has no vested right to get the process completedand at the most the Government could be required to justifyits 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 similar situation of cadrerestructuring.

The relevant extract of the decision is reproducedhereinbelow for ready reference:

“14. In view of this statement of the law, it is evident thatonce the structure of Assam Rifles underwent changefollowing the creation of the intermediatepost of Warrant Officer, persons holding thepost of Havildar would be considered for promotion tothe post of Warrant Officer. The intermediatepost of Warrant Officer was created as result of therestructuring exercise. The High Court was, in our view,in error in postulating that vacancies which arose priorto the amendment of the Recruitment Rules would

necessarily be governed by the Rules which existed atthe time of the occurrence of the vacancies. As thedecided cases noted earlier indicate, there is no suchrule of absolute or universal application. The entirebasis of the decision of the High Court was that thosewho were recruited prior to the restructuring exerciseand were holding the post of Havildars had acquired avested right of promotion to the post of Naib Subedar.This does not reflect the correct position in law. Theright is to be considered for promotion in accordancewith the Rules as they exist when the exercise is carriedout for promotion.”

(emphasis supplied)

7.21. The submission of the contesting Respondents that their casebe considered at par with the candidates appointed by wayof selection and promotion as against the vacancies for theDyears 2001 to 2005 is not tenable.

The appointments of persons as against the vacanciesfor the years 2001 to 2005 were made vide two Notificationsdated December 7, 2010, which were issued prior to therepeal of the old OAS Class II Rules, 1978 and the OASEClass II Regulations, 1978.

7.22. Finally, the High Court had relied upon the decision in MuktiRanjan Acharya & Ors. v. State of Orissa & Ors.[11][W.P.(C) No. 19827/2009; Decided on 16.04.2012] to hold thatpromotions could be given under the repealed OAS Class IIFRules, 1978 and the OAS Class II Regulations, 1978. TheS.L.P. against this judgment had been simply dismissed. TheCounsel for the contesting Respondents prayed for dismissalof the present Civil Appeals by submitting that the saiddecision had been affirmed by this Court vide Order dated28.09.2012.

It is well-settled principle of law emerging from acatena of decisions of this Court, including Supreme CourtEmployees’ Welfare Association v. Union of India &

11 2012 (II) OLR 61.H

Anr.[12] and State of Punjab v. Davinder Pal SinghBhullar[13], that the dismissal of S.L.P. in limine simplyimplies that the case before this Court was not consideredworthy of examination for reason, which may be otherthan the merits of the case. Such in limine dismissal at thethreshold without giving any detailed reasons, does notconstitute any declaration of law or binding precedent under

Article 141 of the Constitution.

8. On the aforesaid grounds, we hold that the Judgment of theDivision Bench is liable to be set aside since the contesting Respondentsdid not have vested or fructified right of promotion to OAS Class IIposts which had arisen during the recruitment year 2008. The names ofthe contesting Respondents were merely recommended for consideration.In the meanwhile, in 2009 the State had re-structured the cadre, andabolished the OAS Class II cadre. The re-constituted cadre viz. theOrissa Revenue Service Group ‘B’ cadre came in its place. Hence, thedirection of the Division Bench to appoint the contesting Respondents inthe vacancies which had occurred in the abolished cadre, in accordancewith the repealed 1978 Rules, was contrary to law, and liable to be setaside.In view of the aforesaid findings, the present Civil Appeals areallowed. The common impugned Judgment and Order dated 30.04.2018passed by the Orissa High Court in W.P. (C) Nos. 14831 of 2013, 18749of 2012, 6720 of 2013, 25961 of 2017 and 9200 of 2016 as well as theimpugned Orders dated 08.08.2018 and 10.08.2018 passed by the OrissaHigh Court in W.P. (C) Nos. 7383 and 14665/2018 are set aside.

Pending Interlocutory Applications, if any, are disposed of in termsof the Judgment.

Ordered accordingly.

Divya Pandey

Appeals allowed.

12 (1989) 1 SCC 187 (paras 22 and 23).13 (2011) 14 SCC 770 (paras 112 and 113).