STATE OF HIMACHAL PRADESH & ORS VS RAJ KUMAR & ORS. CASE

STATE OF HIMACHAL PRADESH & ORS VS RAJ KUMAR & ORS. CASE


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9746 of 2011
STATE OF HIMACHAL PRADESH & ORS. ...APPELLANT(S)
VERSUS
RAJ KUMAR & ORS. …RESPONDENT(S)
WITH
CIVIL APPEAL NO. 9747 of 2011
ANURAG SHARMA AND ORS. ...APPELLANT(S)
VERSUS
STATE OF HIMACHAL PRADESH & ORS. …RESPONDENT(S)
J U D G M E N T
PAMIDIGHANTAM SRI NARASIMHA, J.
1.1 These appeals arise out of the decision of the High Court of Himachal
Pradesh allowing the writ petition and directing the State to consider the case
of the writ petitioners, Respondents no. 1 to 3 herein, for promotion under
Rules that existed when the vacancies arose and not as per the subsequently
amended rules. These directions were based on the decision of this Court in
the case of Y.V. Rangaiah v. J. Sreenivasa Rao1
. As we noticed a number of
decisions of this Court that have followed Rangaiah, and far more decisions
1 Y.V. Rangaiah v. J. Sreenivasa Rao (1983) 3 SCC 284, hereinafter referred to as ‘Rangaiah’.
2
that have distinguished it, we had to examine the issue afresh. The question
is whether appointments to the public posts that fell vacant prior to the
amendment of the Rules would be governed by the old Rules or the new
Rules. After examining the principle in the context of the constitutional
position of services under the State, and having reviewed the decisions that
have followed or distinguished Rangaiah in that perspective, we have
formulated the legal principles that should govern services under the State.
Applying the said principles, we have held that the broad proposition
formulated in Rangaiah does not reflect the correct constitutional position.
We have thus allowed the appeals following the principles that we have laid
down.
1.2 We will first refer to the facts leading to the present controversy.
Facts:
1.3 The Himachal Pradesh Recruitment and Promotion Rules, 19662 dated
01.03.1966 made in exercise of the powers under Article 309 of the
Constitution govern the post of Labour Officer. There were 5 posts of Labour
Officers and these were to filled by promotion from (i) factory Inspectors,
(ii) labour inspectors and (iii) sectt. superintendents, being the feeder
category. On 20.07.2006, Secretary, Labour and Employment Department
addressed a letter to the Labour Commissioner intimating sanction for
2
hereinafter referred to as the ‘1966 rules’.
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creation of additional posts in the department which interalia included 7 more
posts for Labour Officers. As a consequence of the said decision, the total
posts for Labour Officers increased from 5 to 12. At this point in time
Respondents No. 1 to 3 were working as Labour Inspectors in the service of
the State.
1.4 Within four months from the sanction of the additional posts, the 1966
Rules came to be amended on 25.11.2006. Under the New Rules called the
H.P. Labour and Employment Department, Labour Officers, Class-II
(Gazetted) Ministerial Services R & P Rules, 20063
, recruitment to the post
of Labour Officer is to be made by promotion as well as direct recruitment in
the ratio of 75 per cent and 25 per cent respectively. The effect of the New
Rules coupled with the 7 new posts for Labour Officers is that, from out of
the total number of 12 posts of Labour Officers, the promotional posts
increased from 5 to 9 (being 75 per cent) and direct recruitment posts came
to 3 (being 25 per cent). Immediately thereafter, the Government issued a
notification creating 12 Labour zones in the State.
1.5 It is in the above-referred background, that Respondents No. 1 to 3
approached the Administrative Tribunal challenging the proposed action of
the State Government in filling up 25 per cent of the posts of Labour Officers
by direct recruitment. They contended that the vacancies arose in July 2006,
3
hereinafter referred to as ‘the New Rules’.
4
which is before the promulgation of the New Rules and therefore all the
vacancies must be filled only by promotion. By its order dated 24.01.2007,
the Tribunal directed the State Government to consider the grievance raised
in the Original Application as if it is a representation to it. The representation
was considered and rejected by the Government on 27.06.2007. Challenging
the rejection, the second Original Application was filed by the Respondents
before the State Administrative Tribunal.
1.6 While the matter was pending before the Tribunal, the State
Government proceeded further and issued an advertisement through the H.P.
Public Service Commission, calling for applications for filling up the 3 posts
of Labour Officers under the quota of direct recruitment. The Public Service
Commission completed the recruitment process and recommended the names
of Respondents No. 4 to 6. The recommendation was accepted and the said
Respondents were appointed. It is not in dispute that they joined duties on the
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th and 5th of November, 2008. Questioning the legality and validity of the
said appointments, Respondents No. 1 to 3 filed Civil Writ Petition No.
3028/2008 before the High Court of Himachal Pradesh, which came to be
allowed by the Division Bench of the High Court by the impugned order on
28.12.2009. Challenging the decision of the Division Bench the State of
Himachal Pradesh preferred a Special Leave Petition before this Court, from
which the present Civil Appeal arises pursuant to leave being granted on
08.11.2011. Similarly, the direct recruit appointees, Respondents No. 4 to 6
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also filed a Special Leave Petition, which is numbered Civil Appeal no.
9747/2011 after leave was granted.
2. The solitary argument advanced on behalf of Respondents No. 1 to 3,
which was accepted by the Division Bench was that the vacancies which arose
prior to the promulgation of New Rules were to be filled only as per the 1966
Rules and not as per the New Rules. The High Court formulated the issue and
proceeded to allow the Writ Petition on the ground that it is covered by the
decision of this Court in Y.V. Rangaiah v. J. Sreenivasa Rao (supra). The
operative portion of the judgment is extracted herein for ready reference:
“The question whether the vacancies occurring before
the amendment to the Recruitment and Promotion Rules
are to be filled up as per the old Recruitment and
Promotion Rules or by way of new Recruitment and
Promotion Rules is no more res integra in view of the
law laid down by their Lordships of this Court in Y.V.
Rangaiah and others versus J. Sreenivasa Rao, (1983)
3 SCC 284.”
Submissions:
3.1 In these appeals, we heard Shri P.S. Patwalia, Senior Advocate assisted
by Advocate-on-Record Shri Abhinav Mukerji, for the Appellant-State and
Shri. Prasanjit Keshvani, Ld. Advocate representing the Respondents and also
Shri. Ravindra Kumar Raizada, Senior Advocate assisted by Ms. Divya Roy,
Advocate-on-Record appearing for some other Respondents.
3.2 Shri P.S. Patwalia, learned Senior Advocate for the Appellant-State
made the following submissions. At the outset, he would submit, that there
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was no challenge to the legality of the New Rules and therefore the
Respondents cannot seek a relief which is contrary to the Rules i.e., filling
up the posts by way of promotion as per the Old Rules. Secondly, the interdepartmental letter dated 20.07.2006 followed by the notification dated
02.01.2007 creating the posts was in furtherance of the new policy which was
brought into effect by the amendments made to the Rules. It was therefore
contended that the inter-departmental letter dated 20.07.2006 cannot be seen
as a standalone event and that it is part of the larger policy to restructure the
cadre. Thirdly, there is no vested right to promotion, though there is only a
right to be considered for promotion as per the rules which are in force at the
time of such consideration. Fourthly, the recruitment exercise undertaken by
the State is completely based on the policy consideration of the State which
the High Court failed to take into account. In support of this submission,
reliance was placed on judgments of this Court in K. Ramulu4
, Deepak
Agarwal5
and Krishna Kumar6
. It was finally contended that the High Court
erred in applying the decision of Rangaiah which was the case of promotion,
while the present case is about direct recruitment to the post of Labour
Officers.
3.3 Shri Keshwani followed by Shri Raizada, Senior Advocate for the
Respondents made the following submissions. They would contend that the
4 Dr. K. Ramulu & Anr v. Dr. S Suryaprakash Rao (1997) 3 SCC 59.
5 Deepak Agarwal v. State of U.P (2011) 6 SCC 725.
6 Union of India v. Krishna Kumar (2019) 4 SCC 319.
7
7 new posts were created before the promulgation of the New Rules and there
was no Governmental Policy regarding the applicability of the New Rules
retrospectively. Secondly, there is no evidence to show that the State made a
conscious decision to keep the posts vacant, to be filled as per the New Rules.
On the contrary, they would submit that the communication dated 20.07.2006
sanctioning the creation of the posts stated that they must be filled on a
regular basis. Thirdly, the High Court was right in applying the decision of
Rangaiah which settled the law on appointments to posts falling vacant prior
to the amendment of the rules by holding that they must be governed by the
old rules and not the new rules. Finally, to apply the New Rules to the pending
vacancies, the appointing authority must demonstrate that they had (i) taken
a conscious decision not to fill the vacancies until the promulgation of the
new rules and (ii) such a decision must be for a good and a valid reason. For
this purpose, reliance is placed on judgments of this Court in K. Ramulu7
,
Deepak Agarwal8
and D. Raghu9
to demonstrate that no such effort was made.
Issue:
4.1 The real question is whether the vacancies which arose prior to the
promulgation of the new rules are to be filled only as per the old rules and
not as per the amended rules? It is argued that this principle is no more resintegra as the Supreme Court recognised such a right in Rangaiah’s case and
7 Dr. K. Ramulu & Anr v. Dr. S Suryaprakash Rao (1997) 3 SCC 59.
8 Deepak Agarwal v. State of U.P (2011) 6 SCC 725.
9 D. Raghu v. R. Basaveswarudu 2020 SCC Online 124.
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it has been followed in a large number of subsequent decisions. A list of such
judgments was forwarded to the Court by the Respondents. On the other
hand, while submitting that there is no such right, an even larger list of
decisions of this Court that distinguished Rangaiah was forwarded to us on
behalf of the State.
4.2 We have taken note of the fact that there are a large number of decisions
that have either followed the principle in Rangaiah or have distinguished it.
The principle in Rangaiah’s case has given rise to a number of decisions,
most of them have disapplied Rangaiah and have in fact, watered-down the
principle while distinguishing it. In this view of the matter, and for clarity
and certainty, it is necessary for us to review the subject and restate the
principle in simple and clear terms.
4.3 We will first examine the principle laid down in Rangaiah itself. We
will verify it in the context of the constitutional position provided in Chapter
XIV of the Constitution relating to services under the State. We will
thereafter examine the decisions that followed Rangaiah and also those that
have distinguished it. After restating the principle, we will apply it to the facts
of the case for arriving at our decision.
The decision in the case of Y.V. Rangaiah v. J. Sreenivasa Rao:
5.1 The Petitioners in Rangaiah’s case were working as LDCs in the
Department of Registration and Stamps, Government of A.P. Under Rule
4(a)(1)(i) of the A.P. Registration and Subordinate Service Rules,
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appointments to the promotional posts of Sub-Registrar Grade II from LDCs
were to be made from the panel of “approved candidates” made under Rule
34 (c). The panel was to be prepared by the prescribed authority in the month
of September every year and it could operate till a list for the subsequent
year was prepared. Importantly, the list had to contain names of as many
persons as there are vacancies. As the approved list was not prepared within
the prescribed time, promotions could not take place in time. In the
meanwhile, the amended rules came into force, as per which the petitioners
lost their chance to be considered for promotion. They contended before this
Court that their right to be considered for appointment for promotion would
not be lost with the advent of new rules as the vacancies occurring prior to
the amendment of the rules were to be filled under the unamended rules. In
other words, the contention was that the mandatory requirement under the
old rules was violated. It is in this context that the Court observed as under:-
“9. ….Under the old rules a panel had to be prepared
every year in September. Accordingly, a panel should
have been prepared in the year 1976 and transfer or
promotion to the post of Sub-Registrar Grade-II should
have been made out of that panel. In that event, the
petitioners in the two representation petitions who
ranked higher than respondents 3 to 15 would not have
been deprived of their right of being considered for
promotion. The vacancies which occurred prior to the
amended rules would be governed by the old rules and
not by the amended rules. It is admitted by counsel for
both the parties that henceforth promotion to the post
of Sub-Registrar Grade II will be according to the new
rules on the zonal basis and not on the State-wide basis
and, therefore, there was no question of challenging the
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new rules. But the question is of filling the vacancies
that occurred prior to the amended rules. We have not
the slightest doubt that the posts which fell vacant prior
to the amended rules would be governed by the old rules
and not by the new rules.”
 (emphasis supplied)
5.2 The question that arose in Rangaiah’s case related to the mandatory
obligation under the old rules to prepare an approved list of candidates and
also the number of persons to be placed in the list as per the vacancies
available. It is in this context that the Court observed that the vacancies would
be governed by the old rules. This decision is not to be taken to be laying
down an invariable principle that vacancies occurring prior to the amendment
of the rules are to be governed by old rules. It is important to note that the
Court has not identified any vested right of an employee, as has been read
into this judgment in certain subsequent cases.
5.3 However, as the observation in Rangaiah’s case has been construed as
a general principle that vacancies arising prior to the amendment of rules are
to be filled only as per the old rules, it is necessary for us to examine the
correct position of law. For this purpose, we will examine the constitutional
position and the status that governs the relationship between an employee and
the State.
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Status of persons serving the Union and the States:
6.1 The relationship between the State and its employees is provisioned in
Part XIV of the Constitution. The provisions of this Part empower the Union
and the States to make Laws and executive Rules, to regulate the recruitment,
conditions of service10
, tenure11 and termination12 of persons serving the
Union or the States.
6.2 Article 310 provides that, except as expressly provided in the
Constitution, every person serving the Union or the States holds office during
the pleasure of the President or the Governor.
6.3 The legislative power conferred on the Parliament or a State
Legislature, to make Laws, or the executive power conferred on the President
or the Governor to make Rules under Article 309 is controlled by the doctrine
of pleasure embodied in Article 310. This is clear from the fact that Article
309 opens with the restrictive clause, ‘subject to the provision of the
Constitution. It is for this reason that the power of the legislature to make
laws and the executive to make Rules, for laying down conditions of services
of a public servant is always subject to the tenure at the pleasure of the
President or the Governor under Article 310.
10 Article 309, Constitution of India.
11 Article 310, Constitution of India.
12 Article 311, Constitution of India.
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7.1 The Constitutional provision to provide public employment on the
basis of tenure at pleasure of the President or the Governor is based on
‘public policy’, ‘public interest’ and ‘public good’. The concept of holding
public employment at pleasure is explained in Constitution Bench decision
of this Court in Union of India v. Tulsiram Patel13
. The relationship between
the Government and its employees, as explained in this judgment can be
formulated as under14 :-
I. Unlike in the United Kingdom, in India it is not
subject to any law made by Parliament but is subject
only to what is expressly provided by the Constitution.15
II. The pleasure doctrine relates to the tenure of a
Government servant… , … means the period for which
an incumbent of office holds it.16
III. The position that the pleasure doctrine is not based
upon any special prerogative of the Crown but upon
public policy has been accepted by this Court in State
of U.P. v. Babu Ram Upadhya and Moti Ram Deka v.
General Manager, N.E.F., Railways, Maligaon,
Pandu17
.
IV. The only fetter which is placed on the exercise of
such pleasure is when it is expressly so provided in the
Constitution itself, that is when there is an express
provision in that behalf in the Constitution. Express
provisions in that behalf are to be found in the case of
certain Constitutional functionaries in respect of whose
tenure special provision is made in the Constitution as,
for instance, in clauses (4) and (5) of Article 124 with
13 Union of India v. Tulsiram Patel (1985) 3 SCC 398.
14 The relevant propositions in the Tulsiram case, as identified and extracted in ‘Law Relating
to Public Services’, Samaraditya Pal, 3rd Edition, Lexis Nexis, 2011 is adopted for convenience.
15 (1985) 3 SCC 398 @ 439
16 Ibid at 440.
17 Ibid at 441
13
respect to Judges of the Supreme Court, Article 218
with respect to Judges of the High Court. Article 148(1)
with respect to the Comptroller and Auditor-General of
India, Article 324(1) with respect to the Chief Election
Commissioner, and Article 324(5) with respect to the
Election Commissioners and Regional
Commissioners.18
V. Clauses (1) and (2) of Article 311 impose restrictions
upon the exercise by the President or the Governor of a
State of his pleasure under Article 310(1). These are
express provisions with respect to termination of
service by dismissal or removal as also with respect to
reduction in rank of a civil servant and thus come within
the ambit of the expression Except as otherwise
provided by this ‘Constitution’ qualifying Article
310(1). Article 311 is thus an exception to Article 310
and was described in Parshotam Lal Dhingra v. Union
of India,19 as operating as a proviso to Article 310(1)
though set out in a separate Article.20
VI. Article 309, is however, not such an exception. It
does not lay down any express provision which would
derogate from the amplitude of the exercise of pleasure
under Article 310(1). It merely confers upon the
appropriate legislature or executive the power to make
laws and frame rules but this power is made subject to
the provisions of the Constitution. Thus, Article 309 is
subject to Article 310(1) and any provision restricting
exercise of the pleasure of the President or Governor in
an Act or rule made or framed under Article 309 not
being an express provision of the Constitution, cannot
fall within the expression ‘Except as expressly provided
by this Constitution’ occurring in Article 310(1) and
would be in conflict with Article 310(1) and must be
held to be unconstitutional.21
VII. Clauses (1) and (2) of Article 311 expressly restrict
the manner in which a Government servant can be
18 Ibid at 447.
19 Ibid at 447
20 Ibid at 447.
21 Ibid at 447
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dismissed, removed or reduced in rank and unless an
Act made or rule framed under Article 309 also
conforms to these restrictions, it would be void. The
restrictions placed by clauses (1) and (2) of Article 311
are two- (i) with respect to the authority empowered to
dismiss or remove a Government servant provided for
in clause (1) of Article 311, and (ii) with respect to the
procedure for dismissal, removal or reduction in rank
of a Government servant provided for in clause (2).22
(emphasis supplied)
7.2 Regardless of its origin, the doctrine of pleasure incorporated under
our constitutional scheme is to subserve an important public purpose. In Para
44 and 45 of Tulsiram Patel (supra), this Court has explained the purpose and
object of incorporating this principle:
“44. Ministers frame policies and Legislatures enact
laws and lay down the mode in which such policies are
to be carried out and the object of the legislation
achieved. In many cases, in a Welfare State such as
ours, such policies and statutes are intended to bring
about socio-economic reforms and the uplift of the poor
and disadvantaged classes. From the nature of things
the task of efficiently and effectively implementing these
policies and enactments, however, rests with the civil
services. The public is, therefore, vitally interested in
the efficiency and integrity of such services.
Government servants are after all paid from the public
exchequer to which everyone contributes either by way
of direct or indirect taxes. Those who are paid by the
public and are charged with public administration for
public good must, therefore, in their turn bring to the
discharge of their duties a sense of responsibility. The
efficiency of public administration does not depend only
upon the top echelons of these services. It depends as
much upon all the other members of such services, even
on those in the most subordinate posts. For instance,
railways do not run because of the members of the
22 Ibid at 447
15
Railway Board or the General Managers of different
railways or the heads of different departments of the
railway administration. They run also because of
engine-drivers, firemen, signalmen, booking clerks and
those holding hundred other similar posts. Similarly, it
is not the administrative heads who alone can see to the
proper functioning of the post and telegraph service.
For a service to run efficiently there must, therefore, be
a collective sense of responsibility. But for a
Government servant to discharge his duties faithfully
and conscientiously, he must have a feeling of security
of tenure. Under our Constitution, this is provided for
by the Acts and rules made under Article 309 as also by
the safeguards in respect of the punishments of
dismissal, removal or reduction in rank provided in
clauses (1) and (2) of Article 311. It is, however, as
much in public interest and for public good that
Government servants who are inefficient, dishonest or
corrupt or have become a security risk should not
continue in service and that the protection afforded to
them by the Acts and rules made under Article 309 and
by Article 311 be not abused by them to the detriment of
public interest and public good. When a situation as
envisaged in one of the three clauses of the second
proviso to clause (2) of Article 311 arises and the
relevant clause is properly applied and the disciplinary
inquiry dispensed with, the concerned Government
servant cannot be heard to complain that he is deprived
of his livelihood. The livelihood of an individual is a
matter of great concern to him and his family but his
livelihood is a matter of his private interest and where
such livelihood is provided by the public exchequer and
the taking away of such livelihood is in the public
interest and for public good, the former must yield to
the latter. These consequences follow not because the
pleasure doctrine is a special prerogative of the British
Crown which has been inherited by India and
transposed into our Constitution adapted to suit the
constitutional set-up of our Republic but because public
policy requires, public interest needs and public good
demands that there should be such a doctrine.
16
45. It is thus clear that the pleasure doctrine embodied
in Article 310(1), the protection afforded to civil
servants by clauses (1) and (2) of Article 311 and the
withdrawal of the protection under clause (2) of
Article 311 by the second proviso thereto are all
provided in the Constitution on the ground of public
policy and in the public interest and are for public
good.”
8. The principle of a public servant holding office at the pleasure of the
President or the Governor is incorporated in the Constitution itself (under
Article 310). This has a direct bearing on the powers of the Parliament or the
legislature to make Laws or the executive to make Rules for specifying
conditions of service provided under Article 309. This position is clearly
explained in the above-referred passages. In B.P. Singhal v. Union of India23
this Court explained the consequence of holding the office during the
pleasure of the President or the Governor:
“33. The doctrine of pleasure as originally envisaged in
England was a prerogative power which was unfettered.
It meant that the holder of an office under pleasure
could be removed at any time, without notice, without
assigning cause, and without there being a need for any
cause. But where the rule of law prevails, there is
nothing like unfettered discretion or unaccountable
action. The degree of need for reason may vary. The
degree of scrutiny during judicial review may vary. But
the need for reason exists. As a result, when the
Constitution of India provides that some offices will be
held during the pleasure of the President, without any
express limitations or restrictions, it should however
necessarily be read as being subject to the
“fundamentals of constitutionalism”.
23 B.P. Singhal v. Union of India (2010) 6 SCC 331.
17
9. It is in this background that the employment of a public servant is to be
understood. Though the relationship between the employee and the State
originates in contract, but by virtue of the constitutional constraint, coupled
with the legislative and executive rules governing the service, the relation
attains a unique position. Identifying such a relationship as being a ‘status’,
as against a contract, this Court in Roshan Lal Tandon v. Union of India24
,
explained what such a ‘status’ constitutes. We have extracted hereinbelow
the exposition of the concept of ‘status’ as explained by the Constitution
Bench for ready reference. In this case, the petitioner Roshan Lal Tandon was
appointed as Train-Examiner – Grade ‘D’. At the time when he joined the
service, the promotion to the next post in Grade ‘C’ was governed by certain
rules which later came to be amended. Questioning the amendment, he
contended that he had a right to be promoted to Grade ‘C’ when he joined the
service and such a right could not have been altered by way of a subsequent
amendment. Rejecting this argument, this Court explained the relationship of
Government employment as a ‘status’ as under:
“6. We pass on to consider the next contention of the
petitioner that there was a contractual right as regards
the condition of service applicable to the petitioner at
the time he entered Grade ‘D’ and the condition of
service could not be altered to his disadvantage
afterwards by the notification issued by the Railway
Board. It was said that the order of the Railway Board
dated January 25, 1958, Annexure ‘B’, laid down that
promotion to Grade ‘C’ from Grade ‘D’ was to be based
on seniority-cum-suitability and this condition of
24 Roshan Lal Tandon v. Union of India (1968) 1 SCR 185.
18
service was contractual and could not be altered
thereafter to the prejudice of the petitioner. In our
opinion, there is no warrant for this argument. It is true
that the origin of Government service is contractual.
There is an offer and acceptance in every case. But once
appointed to his post or office the Government servant
acquires a status and his rights and obligations are no
longer determined by consent of both parties, but by
statute or statutory rules which may be framed and
altered unilaterally by the Government. In other words,
the legal position of a Government servant is more one
of status than of contract. The hall-mark of status is the
attachment to a legal relationship of rights and duties
imposed by the public law and not by mere agreement
of the parties. The emolument of the Government
servant and his terms of service are governed by statute
or statutory rules which may be unilaterally altered by
the Government without the consent of the employee. It
is true that Article 311 imposes constitutional
restrictions upon the power of removal granted to the
President and the Governor under Article 310. But it is
obvious that the relationship between the Government
and its servant is not like an ordinary contract of
service between a master and servant. The legal
relationship is something entirely different, something
in the nature of status. It is much more than a purely
contractual relationship voluntarily entered into
between the parties. The duties of status are fixed by
the law and in the enforcement of these duties, society
has an interest…
7. We are therefore of the opinion that the petitioner
has no vested contractual right in regard to the terms
of his service and that Counsel for the petitioner has
been unable to make good his submission on this aspect
of the case.”
19
10. The principle laid down in Roshan Lal Tandon’s case is followed in a
number of decisions of this Court.25 The following are the propositions
emanating from the principles laid down in these precedents.
(i) Except as expressly provided in the Constitution, every person
employed in the civil service of the Union or the States holds
office during the pleasure of the President or the Governor
(Article 310). Tenure at pleasure is a constitutional policy for
rendering services under the state for public interest and for the
public good, as explained in Tulsiram Patel (supra).
(ii) The Union and the States are empowered to make laws and rules
under Articles 309, 310 and 311 to regulate the recruitment,
conditions of service, tenure and termination. The rights and
obligations are no longer determined by consent of the parties but
by the legal relationship of rights and duties imposed by statute
or the rules. The services, thus, attain a status.
(iii) The hallmark of status is in the legal rights and obligations
imposed by laws that may be framed and altered unilaterally by
the Government without the consent of the employee.
(iv) In view of the dominance of rules that govern the relationship
between the Government and its employee, all matters
25 Union of India v. Arun Kumar Roy, (1986) 1 SCC 677; Narayana v. Purushotham (2008) 5
SCC 416; Brij Lal Mohan v. Union of India (2012) 6 SCC 502.
20
concerning employment, conditions of service including
termination are governed by the rules. There are no rights outside
the provision of the rules.
(v) In a recruitment by State, there is no right to be appointed but
only a right to be considered fairly. The process of recruitment
will be governed by the rules framed for the said purpose.
(vi) Conditions of service of a public servant, including matters of
promotion and seniority are governed by the extant rules. There
are no vested rights independent of the rules governing the
service.26
(vii) With the enactment of laws and issuance of rules governing the
services, Governments are equally bound by the mandate of the
rule. There is no power or discretion outside the provision of the
rules governing the services and the actions of the State are
subject to judicial review.
27
11. In view of the above principles, flowing from the constitutional status
of a person in employment with the State, we have no hesitation in holding
that the observations in Rangaiah that posts which fell vacant prior to the
amendment of Rules would be governed by old Rules and not by new Rules
do not reflect the correct position of law. We have already explained that the
26 Syed Khalid Rizivi V Union of India 1993 Supp (3) SCC 575 ; Hardev Singh v Union of
India 2011(10) SCC 121
27 Rajasthan Public Service Commission v. Chanan Ram, (1998) 4 SCC 202.
21
status of a Government employee involves a relationship governed
exclusively by rules and that there are no rights outside these rules that govern
the services. Further, the Court in Rangaiah’s case has not justified its
observation by locating such a right on any principle or on the basis of the
new Rules.
28 As there are a large number of judgments which followed
Rangaiah under the assumption that an overarching principle has been laid
down in Rangaiah, we have to necessarily examine the cases that followed
Rangaiah. We will now examine how subsequent decisions understood,
applied or distinguished Rangaiah.
Decisions that followed Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao
12.1 The first case which followed Rangaiah is P. Ganeshwar Rao v. State
of A.P.
29 The Court was concerned about recruitment to the post of Assistant
Engineer governed by the special rules.30 The question that arose for
consideration was whether the vacancies arising in the category of Assistant
Engineers before the amendment to the special rules were to be considered as
per the amended or the unamended rules. Having considered explanation (c)
and the proviso of the special rules which used the expression “vacancies
arising in the category”, the Court concluded that the intendment of the
28 In fact, the case of Dr. K. Ramulu & Anr v. Dr. S Suryaprakash Rao (supra) is exactly this
where there was a specific requirement in the new amended rules to fill up the old vacancies
as per the new amended rules. The repealed rules had a provision for filling up the past
vacancies as per the new rules. Also, in P. Ganeshwar Rao v. State of A.P., 1988 Supp SCC
740 the intendment was to fill the vacancies as per the old rules.
29 P. Ganeshwar Rao v. State of A.P., 1988 Supp SCC 740.
30 AP Panchayat Raj Engineering Services (Special) Rules, 1963.
22
amended rule itself is to fill vacancies based on the rules that existed prior to
the amendment of the rules. This is a case that turned on the wording of the
amended rule itself. The Court observed as under:
“7. …The only question which has now to be considered
is whether the amendment made on April 28, 1980 to
the Special Rules applied only to the vacancies that
arose after the date on which the amendment came into
force or whether it applied to the vacancies which had
arisen before the said date also. The crucial words in
the Explanation which was introduced by way of
amendment in the Special Rules on April 28, 1980 were
“37 1/2 per cent of the substantive vacancies arising in
the category of Assistant Engineers shall be filled by the
direct recruitment”. If the above clause had read “37
1/2 per cent of the substantive vacancies in the category
of Assistant Engineers shall be filled by the direct
recruitment” perhaps there would not have been much
room for discussion. The said clause then would have
applied even to the vacancies which had arisen prior to
the date of the amendment but which had not been filled
up before that date. We feel that there is much force in
the submission made on behalf of the appellants and the
State Government that the introduction of the word
“arising” in the above clause made it applicable only
to those vacancies which came into existence
subsequent to the date of amendment.”
12.2 The decision, in this case, is based on the position of the amended rule.
Even in this case, the Court has not identified any general principle of vested
right of a public servant to be considered for vacancies arising prior to the
amendment of the rules. Without any analysis, the Court observed that the
principle as laid down in Rangaiah is applicable and proceeded with the
interpretation of the new rules.
23
13.1 N.T. Devin Katti v. Karnataka Public Service Commission31
, is a case
concerning appointment to the post of Tehsildar, a selection post governed
under 1975 Rules32
, to be filled from in-service candidates. While the
advertisement was issued in May 1975, the procedure for selection of
candidates by following the rules of reservation in favour of SC/ST
candidates was brought into force on 09 July 1975. The Court held that as the
advertisement expressly stated that the selection shall be made in accordance
with the existing rules, the candidates who have appeared in the written test
and have undergone viva voce acquired a vested right for being considered
for selection in terms of the advertisement. The Court held that, as the rules
have no retrospective effect, the recruitment process cannot be affected. It is
in this context, that the Court referred to the case of Rangaiah and P.
Ganeshwar Rao. The Court also relied on Calton33 which was related to the
appointment for the post of Principal under the U.P. Intermediate Education
Act, 1921, and Mahenderan’s 34 case which was related to the recruitment
process for direct appointment to the post of Motor Vehicle Inspector.
Changes made to the rules after the issuance of the advertisement was the
question under consideration. The Court observed:
“11. There is yet another aspect of the question. Where
advertisement is issued inviting applications for direct
recruitment to a category of posts, and the
31 N.T. Devin Katti v. Karnataka Public Service Commission, (1990) 3 SCC 157.
32 Karnataka Administrative Services (Tehsildars) Recruitment (Special) Rules, 1975.
33 A.A. Calton v. Director of Education and Anr (1983) 3 SCC 33.
34 P. Mahendran and Ors v. State of Karnataka (1990) 1 SCC 411.
24
advertisement expressly states that selection shall be
made in accordance with the existing rules or
Government orders, and if it further indicates the extent
of reservations in favour of various categories, the
selection of candidates in such a case must be made in
accordance with the then existing rules and
Government orders. Candidates who apply, and
undergo written or viva voce test acquire vested right
for being considered for selection in accordance with
the terms and conditions contained in the
advertisement, unless the advertisement itself indicates
a contrary intention. Generally, a candidate has right
to be considered in accordance with the terms and
conditions set out in the advertisement as his right
crystallises on the date of publication of advertisement,
however he has no absolute right in the matter. If the
recruitment Rules are amended retrospectively during
the pendency of selection, in that event selection must
be held in accordance with the amended Rules. Whether
the Rules have retrospective effect or not, primarily
depends upon the language of the Rules and its
construction to ascertain the legislative intent. The
legislative intent is ascertained either by express
provision or by necessary implication; if the amended
Rules are not retrospective in nature the selection must
be regulated in accordance with the rules and orders
which were in force on the date of advertisement.
Determination of this question largely depends on the
facts of each case having regard to the terms and
conditions set out in the advertisement and the relevant
rules and orders. Lest there be any confusion, we would
like to make it clear that a candidate on making
application for a post pursuant to an advertisement
does not acquire any vested right of selection, but if he
is eligible and is otherwise qualified in accordance with
the relevant rules and the terms contained in the
advertisement, he does acquire a vested right of being
considered for selection in accordance with the rules as
they existed on the date of advertisement. He cannot be
deprived of that limited right on the amendment of rules
during the pendency of selection unless the amended
rules are retrospective in nature.”
25
13.2 This case concerns appointment to the post pursuant to an
advertisement prescribing certain qualifications. Candidates who have
applied on the basis of such qualifications have a right to be considered on
the basis of the advertisement and such a right cannot be taken away without
making a retrospective amendment to rules is the ratio of this case. The issue
involved in this case is different from the one confronting us. The case does
not throw much light on the issue involved in the present case.
14. In State of Rajasthan v. R. Dayal35
, selection for 9 existing vacancies
which were to be filled by the Rajasthan Service of Engineers (Building and
Roads Branch) Rules 1954 was in question. In a short order, relying on
Rangaiah, this Court observed that vacancies existing prior to the amendment
of the rules are required to be filled in accordance with the law existing as on
the date when the vacancies arose. It was held:
“6. As a consequence, any appointment made as on that
date should be consistent with the above Rule. In
support thereof, he placed reliance on the decision of
this Court in Y.V. Rangaiah v. J. Sreenivasa Rao.
8. Therefore, it is not in dispute and cannot be disputed
that while selecting officers, minimum requisite
qualifications and experience for promotion specified
in the relevant column, should be taken into
consideration against vacancies existing as on 1st April
of the year of selection. But since the Rules came to be
amended and the amendment became effective with
immediate effect and clause (11-B) of Rule 24-A
indicates that options have been given to the
Government or the Appointing Authority, as the case
35 State of Rajasthan v. R. Dayal (1997) 10 SCC 419.
26
may be, to revise the select list as existing as per the
law as on the date of the appointment or as may be
directed by a competent court, selection is required to
be made by the concerned DPC. An appointment made,
after selection as per the procedure, to the vacancies
existing prior to the amendment, is valid. But the
question is whether selection would be made, in the case
of appointment to the vacancies which admittedly arose
after the amendment of the Rules came into force,
according to the amended Rules or in terms of Rule 9
read with Rules 23 and 24-A, as mentioned
hereinbefore. This Court has considered the similar
question in para 9 of the judgment above-cited. This
Court has specifically laid that the vacancies which
occurred prior to the amendment of the Rules would be
governed by the original Rules and not by the amended
Rules. Accordingly, this Court had held that the posts
which fell vacant prior to the amendment of the Rules
would be governed by the original Rules and not the
amended Rules. As a necessary corollary, the vacancies
that arose subsequent to the amendment of the Rules are
required to be filled in in accordance with the law
existing as on the date when the vacancies arose.
Undoubtedly, the selection came to be made prior to the
amendment of the Rules in accordance with law then
existing since the anticipated vacancies also must have
been taken into consideration in the light of Rule 9 of
the Rules. But after the amended Rules came into force,
necessarily the amended Rules would be required to be
applied for and given effect to. But, unfortunately, that
has not been done in the present case. The two courses
are open to the Government or the Appointing
Authority, viz., either to make temporary promotions for
the ensuing financial year until the DPC meets or in
exercise of the power under Rule 24-A(11-B), they can
revise the panel already prepared in accordance with
the Rules and make appointments in accordance
therewith.”
27
15.1 In B.L Gupta v. M.C.D.36
, appointment to the post of Assistant
Accountant of DESU under MCD was under consideration. These posts were
to be filled in accordance with the statutory rules framed in 1978 which
provided for an examination. 171 vacancies arose for the said posts in 1993.
Only 79 persons who appeared in the examination were appointed. Writ
petitions were filed in the High Court of Delhi praying for all 171 vacancies
to be filled as per the examination. During the pendency of the writ petitions,
the rules were amended in 1995 which provided that 80% of the posts to be
filled by promotion and the remaining 20% by examination. The High Court
while deciding these writ petitions held that 79 posts were validly filled and
the remaining vacancies were to be filled as per the amended rules. The
question was whether the remaining vacancies are to be filled as per the
amended rules or the unamended rules. Allowing the appeals the Court held:
“9. When the statutory rules had been framed in 1978,
the vacancies had to be filled only according to the said
Rules. The Rules of 1995 have been held to be
prospective by the High Court and in our opinion this
was the correct conclusion. This being so, the question
which arises is whether the vacancies which had arisen
earlier than 1995 can be filled as per the 1995 Rules.
Our attention has been drawn by Mr Mehta to a
decision of this Court in the case of N.T. Devin Katti v.
Karnataka Public Service Commission [(1990) 3 SCC
157]. In that case after referring to the earlier decisions
in the cases of Y.V. Rangaiah v. J. Sreenivasa Rao
[(1983) 3 SCC 284] , P. Ganeshwar Rao v. State of A.P.
[1988 Supp SCC 740] and A.A. Calton v. Director of
Education [(1983) 3 SCC 33] it was held by this Court
that the vacancies which had occurred prior to the
36 B.L.Gupta v. M.C.D (1998) 9 SCC 223.
28
amendment of the Rules would be governed by the old
Rules and not by the amended Rules. Though the High
Court has referred to these judgments, but for the
reasons which are not easily decipherable its
applicability was only restricted to 79 and not 171
vacancies, which admittedly existed. This being the
correct legal position, the High Court ought to have
directed the respondent to declare the results for 171
posts of Assistant Accountants and not 79 which it had
done.
10. …The Rules of 1978 prescribe the mode in which
the promotions can be made. This mode has to be
followed before the appointments could be made. If no
statutory rules had existed, it may have been possible,
though we express no opinion on it, that the existing
incumbents may have been regularised. Where,
however, statutory rules exist, the appointments and
promotions have to be made in accordance with the
statutory rules specially where it has not been shown to
us that the Rules gave the power to the appointing
authority of relaxing the said Rules. In the absence of
any such power of relaxation, the appointment as
Assistant Accountant could only be made by requiring
the candidates to take the examination which was the
method which was prescribed by the 1978 Rules.”
15.2 In this short judgment, the Court proceeded on the premise that
Rangaiah and the subsequent decisions such as N.T. Devin Katti held that
vacancies occurring prior to the amendment should be governed by the old
rules. There is neither a discussion on the Constitutional position, nor is there
a reference to the principle governing service conditions of a Government
servant as laid down in Roshan Lal Tandon’s case. Suffice to say that the
Court has in its order referred to and followed Rangaiah. This is the fourth
case which has merely followed Rangaiah without examining the principle.
29
16.1 In Arjun Singh Rathore v. B.N. Chaturvedi,
37 the Court followed
Rangaiah in its short order. The case related to promotion to the post of Area
Managers or Senior Managers under the relevant Rules of 1988. While 15
vacancies were available for promotion, the rules came to be amended in
1998. Reversing the decision of the High Court, this Court observed that the
vacancies had to be filled as per the vacancies that existed prior to the
amendment of the rules under which the process of interviews and selection
had already taken place. The Court followed Rangaiah and observed:
“6. The above legal position has not been seriously
disputed by the learned counsel for Respondents 6 and
7. We are therefore of the opinion that the vacancies
which had occurred prior to the enforcement of the
Rules of 1998 had to be filled in under the Rules of 1988
and as per the procedure laid down therein...”
16.2 It is only to ensure a detailed analysis and review of the decisions that
have followed Rangaiah that we are referring to each of these judgments. We
notice that the follow up cases have simply referred to Rangaiah when the
Court felt that the selection process must be as per the rules which existed
prior to the amendment. None of these cases recognise the existence of any
vested right, nor do they referred to Constitutional position or the principle
laid down in Roshan Lal Tandon’s case.
37 Arjun Singh Rathore v. B.N. Chaturvedi, (2007) 11 SCC 605.
30
17.1 In State of Bihar v. Mithilesh Kumar,
38 the Court was concerned with
the appointment to the posts of Instructors and Assistant Instructors as per an
advertisement published on 30.12.2001. Pursuant to the advertisement, the
writ petitioner applied and was called for an interview on 09.11.2002.
Thereafter, on 14.11.2002, instructions were issued not to send any further
recommendations to the said post as the scheme under which the
appointments to the post were called for was no longer valid. The respondent
therein was declared successful in the interview but was not appointed and
therefore he approached the Court. While upholding the decision of the High
Court and dismissing the appeal, this Court following Rangaiah held:
“14. The learned counsel submitted that the conditions
of the advertisement inviting applications for filling up
the posts of Assistant Instructor (Electronics) in Kamla
Nehru Social Service Institute for Handicapped and
Rehabilitation Training Centre, Patna, could not have
been altered to the prejudice of the respondent on
account of a decision taken subsequently to have
persons with disabilities trained by professionally
established NGOs/institutions. Reliance was placed on
the decision of this Court in Y.V. Rangaiah v. J.
Sreenivasa Rao, where this Court in similar
circumstances had held that when service rules are
amended, vacancies which had occurred prior to the
amended Rules would be governed by the old Rules and
not by the amended Rules.
…..
23. While a person may not acquire an indefeasible
right to appointment merely on the basis of selection, in
the instant case the fact situation is different since the
claim of the respondent to be appointed had been
38 State of Bihar v. Mithilesh Kumar (2010) 13 SCC 467.
31
negated by a change in policy after the selection
process had begun.”
17.2 This is a case of selection by way of an advertisement and not
promotion of a Government servant from a post held by him. The Court
observed that the terms of the advertisement could not have been altered to
the prejudice of the respondent on the basis of a decision taken subsequently.
There was no occasion for the Court to consider the status of a public servant
in the context of rules governing his service.
18. In Kulwant Singh v. Daya Ram39
, the Punjab Police Rules, 1934 dealt
with the promotion of Constables to the post of Head Constables. The 1982
amendment to the Rule 13.7 mandated that constables considered for
promotion to be sent to a promotional course on the basis of seniority-cummerit. A batch of 15 constables was selected on the basis of the 1982 rules
and was sent for the course in April 1988. Thereafter, 71 vacancies arose and
another amendment to the rule in 1988 was made which provided for sending
constables to the promotional course on merit-cum-seniority basis. The issue
arose when the Senior Superintendent of Police issued a letter to the effect
that new rules would apply to the said promotions. Interdicting the decision
and reiterating the decision of the Tribunal which followed Rangaiah and the
subsequent decisions referred to in paras 38 to 41, the Court observed:-
“41. In B.L. Gupta [B.L. Gupta v. MCD, (1998) 9 SCC
223] the Court reiterated the principle stated in Y.V.
39 Kulwant Singh v. Daya Ram, (2015) 3 SCC 177.
32
Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983)
3 SCC 284] , P. Ganeshwar Rao [P. Ganeshwar
Rao v. State of A.P., 1988 Supp SCC 740] and A.A.
Calton v. Director of Education [(1983) 3 SCC 33]
wherein it had been held that the vacancies which had
occurred prior to the amendment of rules were
governed by the old rules and not by the amended rules.
In Arjun Singh Rathore [Arjun Singh Rathore v. B.N.
Chaturvedi, (2007) 11 SCC 605] the views stated
in Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao,
(1983) 3 SCC 284] and R. Dayal [State of
Rajasthan v. R. Dayal, (1997) 10 SCC 419] were
reiterated.
42. The reference to the aforesaid proposition of law
makes it vivid that the decision rendered by the Tribunal
in Acchhar Chand case was in accordance with the
precedent of this Court and, in fact the Tribunal clearly
meant that.”
19.1 In Richa Mishra v. State of Chhattisgarh40
, the issue related to
appointment to the post of DSP. The State Government sent a requisition for
filling up various vacancies including the post of DSP in accordance with the
2000 Rules. Thereafter, the Chhattisgarh Police Executive (Gazetted) Service
Recruitment and Promotion Rules, 2005 were published. The appellant
therein participated in the selection process and she qualified at each stage.
However, her name was still not included in the list of successful candidates
since the 2000 Rules provided that the upper age limit for appointment to the
post of DSP was 25 years and she had already crossed the said age limit and
therefore was ineligible for the post in question. The question that arose for
consideration was whether the 2000 rules or the 2005 rules would apply.
40 Richa Mishra v. State of Chhattisgarh, (2016) 4 SCC 179.
33
Having examined the requisition for appointment, which was made prior to
the advent of the new rules and further applying the principle of Rangaiah
the Court observed as under:
“18. The High Court held that the first and second
requisitions to commence recruitment process against
the vacant seats to the post of DSP were made when the
2000 Rules were in force. Therefore, recruitment was
rightly undertaken under the 2000 Rules. The admitted
facts are that the process of selection started before the
2005 Rules were promulgated with the requisitions
dated 27-9-2004 and 26-3-2005 sent by the State
Government to CPSC. At that time, the 2000 Rules were
in vogue. For this reason, even in the requisition it was
mentioned that appointments are to be made under the
2000 Rules. Further, it is also an admitted fact that the
vacancies in question which were to be filled were for
the period prior to 2005. Such vacancies needed to be
filled in as per those Rules i.e. the 2000 Rules. This is
patent legal position which can be discerned from Y.V.
Rangaiah v. J. Sreenivasa Rao [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284]….”
19.2 As is evident from the above, this decision also applied Rangaiah in
the context of the facts and without any reference to the Constitutional
position of the employment of a Government servant and the principle laid
down in Roshan Lal Tandon’s case.
Analysis:
20.1 Except in the case of P. Ganeshwar Rao, which not only followed
Rangaiah but also observed that the new Rules enabled the vacancies to be
filled as per the Rules that existed prior to the amendment, all the other
judgments adopted the principle in Rangaiah and directed appointments to be
34
made as per the rules that existed when the vacancies arose. These cases do
not discuss any source of such a right of a Government employee. There is
also no reference to any rule, be it old or new, to enable effectuation of such
a right. None of these cases refer to constitutional position of status or the
principle laid down in Roshan Lal Tandon’s case.
20.2 We will now discuss cases that have distinguished Rangaiah. These
decisions adopt different reasons for not following the principle laid down in
Rangaiah.
Decisions that have distinguished Rangaiah’s case:
21. In Union of India v. S.S. Uppal41 the respondent therein was being
considered for absorption to IAS for a vacancy that arose in 01.02.1989. The
Indian Administrative Services (Regulation of Seniority) Rules, 1987 were
amended on 03.02.1989. The respondent who was appointed on 15.02.1989
claimed that his seniority must be calculated from the date on which the
vacancy arose, i.e., 01.02.1989 and for this purpose he relied on the decision
in Rangaiah and that was accepted by the Tribunal. Reversing the decision
of the Tribunal, this Court held that Rangaiah has no application at all.
Further, relying on the decision in Shankarshan Dash v. Union of India42
,
which held that the existence of a vacancy does not give rise to a legal right
to a selected candidate, the Court held as under:
41 Union of India v. S.S. Uppal, (1996) 2 SCC 168.
42 Shankarshan Dash v. Union of India (1991) 3 SCC 47.
35
“15. The facts in the case before us are entirely
different. There has been no infraction of any rule or
violation of any instruction issued by the Government.
Respondent 1 has not been able to point out any
violation of rules or regulations on the part of the
Government by which he was prejudicially affected.
….
17. … He was actually inducted into the service on 15-
2-1989. The rules which were in force on that day for
determination of seniority will clearly apply to his case.
It is true that Uppal's name was included in a panel
drawn up sometime in August 1988. But mere inclusion
of his name in the panel did not confer upon him any
right to automatic appointment to the IAS. Nor can it be
said that he was to be treated as to have been appointed
from the date when a suitable post fell vacant. … The
seniority of an officer appointed into the IAS is
determined according to the seniority rules applicable
on the date of appointment to the IAS. Weightage in
seniority cannot be given retrospective effect unless it
was specifically provided in the rule in force at the
material time…”
22. State Bank of India v. Kashinath Kher43 is again a case where the
employee relied on the principle in Rangaiah to contend that promotion to
the post of Middle Management Grade Scale- II is to be made on the basis of
vacancies that arose in 1988, 1989 and 1990 without applying the new policy
that came into effect from 1990. In the first place, this is a case involving
service under the State Bank of India, not being a service under the State
governed by laws or rules made under Article 309. However, as we are
considering the principle laid down in Rangaiah and also the decisions that
followed and dissented it, we have examined this case. It is interesting to
43 State Bank of India v. Kashinath Kher (1996) 8 SCC 762.
36
note that the learned Judges assumed that Rangaiah’s case considered a
question of “retrospective application of the rule to the vacancies existing
prior to the rules”. In fact, Rangaiah does not observe anything like that and
we would leave it at this. This Court observed:
“14. The learned counsel for the respondents is not right
in contending that the vacancies have arisen in 1988,
1989 and 1990 and that the rule of relaxation cannot be
given in 1990 to the vacancies that have arisen in 1988,
1989 and 1990 and be considered according to the rules
in vogue when the vacancies had arisen. It is seen that
the policy decision was taken for the first time on 21-3-
1990 effective from 1-8-1988. In other words, the
promotions are required to be considered
retrospectively in the light of the decision to fill up the
vacancies existing as on August 1988. Therefore, it is
not a case of applying a rule which was made later to a
vacancy which was existing anterior thereto. Equally, it
is not correct to state that this principle is an unjust
principle. It is true that this Court in Y.V. Rangaiah v.
J. Sreenivasa Rao [(1983) 3 SCC 284] had considered
the question of retrospective application of the rule to
the vacancies existing prior to the rules, in paragraphs
7 and 8 of the judgment. But in that case, the rule was
in vogue for Sub-Registrars Grade II in Registration
Department of Andhra Pradesh. But no list was
prepared, promotion was not made according to the
existing rules. The list of eligible candidates was
prepared according to the amended Rules,
consequential to the zonal system introduced in Andhra
Pradesh under Article 371-D of the Constitution and
Presidential Order. It was held that the vacancies that
had arisen prior to making the amendment to the Rules
should be filled in accordance with the rules that were
in vogue prior to the amendment and vacancies that
arose subsequently should be filled according to the
amended Rules. That situation does not apply to the
factual matrix.”
37
23.1 K. Ramulu v. S. Suryaprakash Rao44
, is an important decision. The
issue related to applicability of the A.P. Animal Husbandry Services Rules,
1996 (which repealed the existing 1977 rules) to vacancies that arose before
the 1996 amendment to the promotional post of Assistant Director. Under
Rule 4, the Government was to prepare and operate the panel for the year
1995-96 for promotion to the said post. However, a conscious decision was
taken in 1988 by the Government not to fill up any vacancies until the
repealed rules were duly amended. In light of this, the Government did not
prepare and finalise the panel for promotion to the post of Assistant
Veterinary Surgeons to Assistant Director for the year 1995-96. It was held
that:
“12. …But the question is whether the ratio in Rangaiah
case would apply to the facts of this case. The
Government therein merely amended the Rules, applied
the amended Rules without taking any conscious
decision not to fill up the existing vacancies pending
amendment of the Rules on the date the new Rules came
into force. It is true, as contended by Mr H.S. Gururaja
Rao, that this Court has followed the ratio therein in
many a decision and those cited by him are P.
Ganeshwar Rao v. State of A.P., P. Mahendran v. State
of Karnataka, A.A. Calton v. Director of Education,
N.T. Devin Katti v. Karnataka Public Service
Commission, Ramesh Kumar Choudha v. State of M.P.
In none of these decisions, a situation which has arisen
in the present case had come up for consideration.
13. It is seen that since the Government have taken a
conscious decision not to make any appointment till the
amendment of the Rules, Rule 3 of the General Rules is
not of any help to the respondent...
44 K. Ramulu v. S. Suryaprakash Rao (1997) 3 SCC 59.
38
….
15. Thus, we hold that the first respondent has not
acquired any vested right for being considered for
promotion in accordance with the repealed Rules in
view of the policy decision taken by the Government
which we find is justifiable on the material available
from the record placed before us. We hold that the
Tribunal was not right and correct in directing the
Government to prepare and operate the panel for
promotion to the post of Assistant Directors of Animal
Husbandry Department in accordance with the
repealed Rules and to operate the same.”
23.2 This judgment clearly recognises the principle that a policy decision
taken by the Government in public interest would prevail over any claim to
fill up the vacancies. Further, when such a decision is taken, the employee has
no vested right for being considered for promotion in accordance with
repealed rules.
24.1 In Rajasthan Public Service Commission v. Chanan Ram45 an
advertisement for direct recruitment to 23 posts of Assistant Director (Junior)
under Rules, 198646 was released on 05.11.1993. The respondent therein
applied in pursuance of the said advertisement. Further, the last date for
applying in pursuance of this advertisement was 31.12.1993. However, on
28.12.1993, three days prior to the last date for applications, the State
Government asked the RPSC not to proceed with the recruitments.
Thereafter, on 19.04.1995, the rules were amended and consequently, the
45 Rajasthan Public Service Commission v. Chanan Ram, (1998) 4 SCC 202.
46 Rajasthan Agricultural Marketing Services Rules, 1986.
39
aforementioned advertisement was cancelled. Another consequence of the
amendment was that the post of Assistant Director (Junior) was abolished and
restructured as Marketing Officer. A fresh advertisement for 26 posts of
Marketing Officer was released and the 23 posts, in respect of which the
advertisement was issued, were carried forward. The respondent successfully
contended before the High Court that the recruitment must be based on the
rules that existed at the time of vacancies by relying on the decision on
Rangaiah and the subsequent cases that followed it. Rejecting the argument
and allowing the appeal this Court held:
“15…..On the contrary a three-Judge Bench judgment
of this Court in the case of Jai Singh Dalal v. State of
Haryana 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 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.
16. In the facts of the present case it cannot even be
suggested that the action of the State of Rajasthan was
in any way arbitrary in intercepting the earlier
recruitment process pursuant to the first advertisement
dated 05-11-1993 Annexure P-1 as the Rules themselves
had got amended and the posts earlier advertised had
ceased to exist.”
40
24.2 As is evident from the above, after referring to the decisions in
Rangaiah, P. Ganeshwar and other decisions, the Court adopted the principle
that the State has a right to stop a recruitment process at any time before the
appointment takes place. This is to say that there is no vested right to get the
process completed. This is important for the reason that while it holds that
there is no right of an employee, it recognises the obligation of a State to
justify its action on the touchstone of the Article 14 of the Constitution.
25.1 In G. Venkateshwara Rao v. Union of India47 the appellant therein
expected appointment by promotion against a vacancy that arose in 1991,
being the very next candidate on the panel. However, the proposal remained
pending till 1993 and in the meanwhile cadre restructuring took place and as
a result of which another candidate became eligible to be appointed. Relying
on Rangaiah he contended that vacancies must be filled as per the rules that
existed prior to the restructuring. Rejecting the argument, the Court observed
as under:
“4….the learned advocate appearing in support of this
appeal reiterated the same contentions and urged that
the view taken by CAT, Hyderabad is erroneous and
cannot be sustained. While dealing with the first
contention, he urged that if the Railway Board were to
take the decision expeditiously, the appellant could
have been accommodated on such dereserved vacancy.
He urged that there was no impediment in taking the
decision of dereservation and it was merely an inaction
on the part of the Railway Board which had deprived
the appellant of being appointed against the vacancy.
47 G. Venkateshwara Rao v. Union of India (1999) 8 SCC 455.
41
We do not set any substance in this contention because
nothing has been pointed out to us from the record
which would justify this contention. The learned
counsel for the appellant drew our attention to the
decision of this Court in Y.V. Rangaiah v. J. Sreenivasa
Rao [(1983) 3 SCC 284 : 1983 SCC (L&S) 382] and in
particular, he relied upon paras 4 and 9. We have gone
through the judgment and in our opinion, the ratio
thereof has no application. It was a case dealing with
delay in preparing panel for promotional cadre under
the then existing rules which were substituted by new
rules. The panel was prepared under the new rules.
5. Coming to the second contention as regards
restructuring of the cadre, it is quite clear that the
restructuring appears to have been made for the
efficient working in the Workshop Unit. We, therefore,
do not see any substance in this contention.”
25.2 While distinguishing Rangaiah’s principle this Court recognised yet
another factor on the basis of which the Government need not fill up the
vacancies as per the old rules. The reason mentioned in this case is
restructuring the cadre. While upholding the contention that restructuring is
undertaken for efficient working of the unit, this Court justified the decision
of the Government not to fill up the vacancies as per the principle in
Rangaiah.
26.1 In Delhi Judicial Services Association v. Delhi High Court,
48 the Court
formulated the issue as, “in view of the submission made at the Bar, the first
question that requires consideration is whether the temporary posts having
been created prior to the amendment of Rules, is it the law that require those
48 Delhi Judicial Services Assn. v. Delhi High Court, (2001) 5 SCC 145.
42
posts to be filled up only in accordance with the unamended Rules and not
otherwise?” Rejecting the contention and distinguishing Rangaiah on the
facts of the case, the Court held as under:
“5… In Rangaiah case [(1983) 3 SCC 284] this Court
on a consideration of the relevant rules as well as the
instructions issued by the Government, came to hold
that a list of approved candidates was required to be
prepared as of 1-9-1976 for making appointments to the
grade of Sub-Registrar Grade II by transfer, but no such
list having been prepared and instead, the same having
been drawn up in 1977, by which time the amended
rules had come into force, it was held that the legitimate
right and expectations of those who were entitled to be
included in the list which ought to have been prepared
in September 1976 cannot be frustrated on account of
the fact that the panel had not been prepared and it was
so prepared only in the year 1977. It is on this
conclusion, the Court had held that the vacancies
available prior to 1-9-1976 ought to be filled up under
the unamended rules. The aforesaid decision will have
no application to the case in hand inasmuch as in the
Delhi Higher Judicial Service there is no requirement
of preparation of any panel or list of candidates eligible
for promotion by any particular date. Then again,
merely because posts were created under Rule 16, it
was not obligatory for the appointing authority to fill
up those posts immediately…”
26.2 This decision recognised yet another exception to the application of the
principle in Rangaiah case. Court held that even if vacancies were created
prior to the amendment of the Rules, there is no obligation upon the
authorities to fill those vacancies immediately. The decision made direct
inroads into the principle of Rangaiah.
43
27.1 In Shyama Charan Dash v. State of Orissa49 the appellant therein was
working as a Block Level Extension Officer which is a feeder category to the
post of Sub-Assistant Registrar. While he was eligible to be appointed to the
vacancies in the post of Sub-Registrar, the rules came to be amended in 1991
reducing his chances to be appointed. Relying on Rangaiah he contended that
the vacancies that arose prior to the amendment must be filled as per the rules
existing prior to the amendment. This Court held that:
“5. It is appropriate at this stage to make reference to
some of the decisions relied upon by the learned counsel
on either side. Y.V. Rangaiah v. J. Sreenivasa Rao
[(1983) 3 SCC 284] being a case where not only there
was omission to prepare the promotion panel in time as
per rules then in force but the amended rules dispensed
with the original provision for considering LDCs along
with UDCs for promotion, adversely affecting their
promotional prospects, has no application to the case
on hand…
….
9. …As long as the IPOs, as a class or category, are
rendered eligible even from 1986 and that is not
challenged, the differences, if any, existing and based
on the scales of pay among them, when resolved to be
done away with in the undoubted exercise of its power
by the State, as a matter of policy, cannot be
legitimately challenged by the appellants merely
because due to the enlargement of the horizon of
consideration resulting therefrom, the chances of
consideration for promotion of Industrial Supervisors
become diminished. The reasons, which weighed with
the State Government in doing so, are found to be
genuine, real and substantive and meant to do
substantial justice to all categories or grades of posts
equated for purposes of Rule 7 of the Rules. The fact
that in different proceedings where claim for identical
scales of pay came to be contested by the Government
49 Shyama Charan Dash v. State of Orissa, (2003) 4 SCC 218.
44
or rejected by the Tribunal, is no justification to
countenance the claim of the appellants in these
proceedings inasmuch as the criteria to be applied in
dealing with such claims are totally different or, at any
rate, may be one only among several requirements to be
satisfied. Consequently, the challenge on behalf of the
appellants has no merit whatsoever and shall stand
rejected.”
27.2 This is again a case where the Court upheld the decision of the
Government not to fill up the vacancies as per the old rules. The decision of
the Government was upheld because the Court found that the policy decision
is genuine, real and substantive and meant to do substantial justice to all
categories or grades of posts equated for the purpose of Rule 7. These
decisions demonstrate that this Court never applied the principle in
Rangaiah’s case when the policy decision of the Government required
amendment of rules for a justifiable reason.
28.1 In State of Punjab v. Arun Kumar Aggarwal,
50 the second issue in the
case was “whether the old 1941 Rules or the new 2004 Rules, which became
effective from 09.07.2004 will be applied for filling up the vacancies which
arose during 2000-2001 under the old 2001 Rules for promotion to the post
of SDO in the State of Punjab”. The respondents therein contended that they
have an indefeasible right to be promoted to the post of SDO as per the
decision in Rangaiah case. Rejecting the argument, the Court held as under:-
“30. There is no quarrel over the proposition of law that
normal rule is that the vacancy prior to the new Rules
50 State of Punjab v. Arun Kumar Aggarwal (2007) 10 SCC 402.
45
would be governed by the old Rules and not by the new
Rules. However, in the present case, we have already
held that the Government has taken conscious decision
not to fill the vacancy under the old Rules and that such
decision has been validly taken keeping in view the facts
and circumstances of the case.
…..
35. All the decisions referred to above are related to
amendment of the Rules. We have already held that the
1941 Rules were repealed by the 2004 Rules. The facts
of those cases are, therefore, not applicable to the facts
of the present case.
…..
38. We hold that the Government has taken a conscious
decision not to fill up the posts under the old 1941
Rules. The impugned order of the High Court is set
aside. We may at this stage point out that the problem
seems to have been compounded by the inaction/casual
approach of the Government detrimental to public
interest. The State Government shall now fill up the
vacant posts in accordance with the 2004 Rules within
a period of three months from today. All the eligible
candidates who satisfy the criteria laid down under the
2004 Rules shall be considered. The entire process of
recommendation and appointment shall be completed
within three months from today.”
28.2 This is yet another case where deviating from Rangaiah’s principle this
Court recognized the decision of the Government not to fill the vacancies
arising prior to the amendment as per the old rules for the reason that there is
a conscious decision of the Government.
29.1 In Deepak Agarwal v. State of U.P.51
, the question arose as to whether
the appellants therein were entitled to be considered for promotion to the post
of Deputy Excise Commissioner under the U.P. Excise Group ‘A’ Service
51 Deepak Agarwal v. State of U.P., (2011) 6 SCC 725.
46
Rules, 1983. The prayer was for consideration to the vacancies which
occurred prior to the amendment of 1999 Rules. Reliance was placed on
Rangaiah which was rejected. The Court observed as under:-
“24. We are of the considered opinion that the judgment
in Y.V. Rangaiah case 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 year wise
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 17-5-1999 had to be
filled under the unamended Rules.
47
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
Rangaiah case lays down any particular time-frame,
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.
….
28. In our opinion, the matter is squarely covered by the
ratio of the judgment of this Court in Dr. K. Ramulu. In
the aforesaid case, this Court considered all the
judgments cited by the learned Senior Counsel for the
appellant and held that Rangaiah case would not be
applicable in the facts and circumstances of that case.
It was observed that for reasons germane to the
decision, the Government is entitled to take a decision
not to fill up the existing vacancies as on the relevant
date. It was also held that when the Government takes
a conscious decision and amends the rules, the
promotion have to be made in accordance with the rules
prevalent at the time when the consideration takes
place.”
29.2 This is a very important case which recognises many points of
distinction. (a) The Court found that there is no statutory duty cast on the
Government to prepare panels as in the case of Rangaiah, (b) a candidate has
a right to be considered only as per the existing rules, i.e., “the rule in force”,
48
(c) the rule applicable is the rule in force as on the date of consideration, (d)
the principle in Rangaiah has no universal application, (e) for reasons
germane to its decision, the Government is entitled to take a conscious
decision about the filling of the vacancies and the rules applicable. This
decision made deep inroads into the principle laid down in Rangaiah’s case.
30.1 M.I. Kunjukunju v. State of Kerela52
, related to a claim made by the
appellant therein to the post of Industrial Extension Officers. In this case that
the selection process commenced on 25.06.1992 when the Commission
invited applications and prescribed the method of appointment and
qualifications for the post of Industrial Extension Officers. It was contended
that the new rules issued in 2001 could not have a retrospective effect to take
away the vested right. The vested right argument was considered in detail and
the Court rejected the same on the ground that no vested right exists and held
as under:
“19. Therefore, it is clear that a candidate on making
application for the post pursuant to an advertisement
does not acquire any vested right for selection. If he is
eligible and is otherwise qualified in accordance with
the relevant rules, he does acquire right for being
considered for selection as per existing rules.
….
22. In the present case, the Rules have not been framed
under the proviso to Article 309 of the Constitution of
India. The legislature has framed the 1968 Act in
exercise of power conferred under Article 309 of the
Constitution of India. Under the 1968 Act, the State
Government was empowered to make Rules either
52 M.I. Kunjukunju v. State of Kerala (2015) 11 SCC 440.
49
prospectively or retrospectively to regulate the
recruitment and condition of service of persons
appointed to public services and posts in question with
the Department of Industry and Commerce of the State
of Kerala.
23. In view of such delegation of power of the
legislature to the State under the 1968 Act, the Special
Rules framed by the State Government giving
retrospective effect from 1-7-1983 cannot be held to be
illegal or invalid.
….
26. In the present case, we find that the appellants have
not derived any benefit out of the old Government order
which was in force at the time of advertisement. We,
therefore, hold that no vested right or benefit accrued
to the appellants have been taken away by sub-rule (2)
of Rule 1 of the Special Rules.”
30.2 This is a case where the Government made rules which clearly applied
retrospectively to facts that existed before and after the amendment. The
Court held that no right subsists for consideration to the vacancies that existed
prior to the commencement of the rules.
31.1 In State of Tripura v. Nikhil Ranjan Chakraborty,
53 the Court
considered a submission that additional posts in ‘Group A’ and ‘Group B’ of
Schedule IV must be considered only on the basis of the rules that existed
prior to the amendment on 24.12.2011. The Court found no difficulty in
straight away applying the decision of this Court in Deepak Agarwal (supra)
which distinguishes Rangaiah to hold as under: -
“9. The law is thus clear that a candidate has the right
to be considered in the light of the existing rules,
53 State of Tripura v. Nikhil Ranjan Chakraborty (2017) 3 SCC 646.
50
namely, “rules in force on the date” the consideration
takes place and that there is no rule of absolute
application that vacancies must invariably be filled by
the law existing on the date when they arose. As against
the case of total exclusion and absolute deprivation of
a chance to be considered as in Deepak Agarwal in the
instant case certain additional posts have been included
in the feeder cadre, thereby expanding the zone of
consideration. It is not as if the writ petitioners or
similarly situated candidates were totally excluded. At
best, they now had to compete with some more
candidates. In any case, since there was no accrued
right nor was there any mandate that vacancies must be
filled invariably by the law existing on the date when
the vacancy arose, the State was well within its rights
to stipulate that the vacancies be filled in accordance
with the Rules as amended. Secondly, the process to
amend the Rules had also begun well before the
Notification dated 24-11-2011.
10. In our view, the instant case is fully covered by the
law laid down by this Court in Deepak Agrawal and the
High Court was completely in error in allowing the writ
petition and in dismissing the writ appeals. We,
therefore, allow these appeals, set aside the judgment
under appeal and dismiss Writ Petitions (Civil) Nos.
104, 105, 106, 153 and 181 of 2012.”
31.2 The Court reiterated that there is no rule of absolute application that
vacancies must be filled as per the law existing on the date when they arose.
The Court held that there is neither an accrued right nor is there a mandate
under the rules to fill the vacancies as per the law that existed. The Court
recognised the right of the Government to stipulate the vacancies in
accordance with rules as amended.
32.1 By 2019 the perspective in which this Court has considered the decision
in Rangaiah was clear. By this time, the Court recognized many exceptions
51
to the principle. In Union of India v. Krishna Kumar54
, this Court noted that,
“the decision of this Court in Y.V. Rangaiah v. J. Sreenivasa Rao has been
construed in subsequent decisions as a case where the applicable rule
required the process of promotion or selection to be completed within a
stipulated time-frame”. This case relates to a claim made by Havaldars for
being considered for the post of Naib Subedar for the vacancies which
occurred prior to the changes that were made in the structure of Assam Rifles
in 2011. The High Court accepted the submission and directed the applicants
to be considered for the posts as per the pre-amended rules. Allowing the
appeal this Court held as under:-
“10. In considering the rival submissions, it must, at the
outset, be noted that it is well settled that there is no
vested right to promotion, but a right be considered for
promotion in accordance with the Rules which prevail
on the date on which consideration for promotion takes
place. This Court has held that there is no rule of
universal application to the effect that vacancies must
necessarily be filled in on the basis of the law which
existed on the date when they arose. The decision of this
Court in Y.V. Rangaiah v. J. Sreenivasa Rao [Y.V.
Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 :] has
been construed in subsequent decisions as a case where
the applicable Rules required the process of promotion
or selection to be completed within a stipulated timeframe. Hence, it has been held in H.S. Grewal v. Union
of India [H.S. Grewal v. Union of India, (1997) 11 SCC
758 : 1998 SCC (L&S) 420] that the creation of an
intermediate post would not amount to an interference
with the vested right to promotion…..
….
13. In view of this statement of the law, it is evident that
once the structure of Assam Rifles underwent a change
54 Union of India v. Krishna Kumar (2019) 4 SCC 319.
52
following the creation of the intermediate post of
Warrant Officer, persons holding the post of Havaldar
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
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 Havaldars 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.”
32.2 Apart from holding that there is no rule of universal application to the
effect that vacancies must necessarily be filled on the basis of the law that
existed on the date when they arose, this Court also held that the right is to
be considered for promotion in accordance with rules as they exist when the
exercise is carried out for promotion.
33.1 In State of Orissa v. Dhirendra Sundar Das55
, the Court was concerned
with appointment by promotion to Orissa Administrative Service, Class II
Cadre. The employees contended that OAS Class II Rules, 1978 read with
OAS Class II, Regulations, 1978 were in force at the time when the State
decided to fill up the 150 OAS Class II posts on 28.4.2008. It was their
55 State of Orissa v. Dhirendra Sundar Das, (2019) 6 SCC 270.
53
contention that the subsequent restructuring cannot affect their right to be
considered for the 150 posts as per the 1978 Rules. For this purpose, reliance
was placed on Rangaiah. Rejecting this contention, the Court allowed the
appeal by holding:
“9.14. Reliance placed by the counsel for the
respondents on Y.V. Rangaiah v. J. Sreenivasa Rao 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.
9.15. A similar submission was rejected by this Court in
Deepak Agarwal v. State of U.P. [Deepak Agarwal v.
State of U.P., (2011) 6 SCC 725 : (2011) 2 SCC (L&S)
175]…
….
10. 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.”
33.2 Following the line adopted in Deepak Agarwal v. State of U.P. (supra)
this Court held that the respondents therein do not have a vested and fructified
right and therefore held that the appointments need not be made as per the old
rules.
54
34.1 In Rajasthan State Sports Council v. Uma Dadhich56
, the respondent
therein was appointed under the Rajasthan State Sports Council on the posts
of Coach Grade-III on 20.03.1986. She was promoted to Coach Grade-II in
1990 and Coach Grade-I in 1997. Promotion to the post of Sports Officer
from the Cadre of Coach Grade-I was challenged by the respondent on the
ground that the posts fell vacant in the year 2003-2004, for which the 2006
Rules changed the qualification from mere seniority to seniority-cum-merit
could not be applied. Allowing the appeal this Court has held as under:-
“5. There is merit in the submission which has been
urged on behalf of the appellants that the respondent
had no vested right to promotion but only a right to be
considered in accordance with the rules as they existed
on the date when the case for promotion was taken up.
This principle has been reiterated in several decisions
of this Court. (See H.S. Grewal v. Union of India [H.S.
Grewal v. Union of India, (1997) 11 SCC 758], Deepak
Agarwal v. State of U.P. [Deepak Agarwal v. State of
U.P., (2011) 6 SCC 725], State of Tripura v. Nikhil
Ranjan Chakraborty [State of Tripura v. Nikhil Ranjan
Chakraborty, (2017) 3 SCC 646] and Union of India v.
Krishna Kumar [Union of India v. Krishna Kumar,
(2019) 4 SCC 319]).
6. The judgment in Y.V. Rangaiah v. J. Sreenivasa Rao
dealt with a situation where the rules required that the
promotional exercise must be completed within the
relevant year. Rangaiah case [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284], has hence been
distinguished in the judgments noted above.
7. Rule 9(4) of the Rajasthan State Sports Council
Service Rules, 2006 on which reliance has been placed
on behalf of the appellant does not indicate that the
vacancies must be filled in on the basis of Rules as they
prevail in the year in which they have occurred. Rule
9(4) is in the following terms:
56 Rajasthan State Sports Council v. Uma Dadhich (2019) 4 SCC 316.
55
“9. (4) The appointing authority shall
determine the vacancies of earlier years, yearwise which were required to be filled in by
promotion, if such vacancies were not
determined and filled earlier in the year in
which they were required to be filled in.”
34.2 The Court considered a large number of decisions that distinguished
Rangaiah’s case and held as a matter of principle that rules that exist on the
date when the case for promotion was taken up would hold the field. The
Court further observed that there is no rule which specifically mandates that
the vacancies prior to the amendment must be filled as per the rules that
existed and not the new rules. This is a complete reversal of the principle set
to have been laid down in Rangaiah’s case.
35. Finally, the case of D. Raghu v. R. Basaveswarudu57
, is yet another
decision that has not followed the principle in Rangaiah’s case.
The Court held as under:-
“129.8. The High Court was in error in holding that it
has to be necessarily held that the vacancies which
arose prior to the revised Recruitment Rules coming
into force has to be filled up under the then existing
Rules (the 1979 Rules) relying upon case law including
Rangaiah. There was a conscious decision taken to not
fill up vacancies based on the restructuring, and what
is more, letters dated 28-10-2002 and 14-11-2002 show
that promotion to the post of Inspector was to be
effected based on the new Recruitment Rules.”
57 D. Raghu v. R. Basaveswarudu, (2020) 18 SCC 1.
56
Analysis:
36. A review of the fifteen cases that have distinguished Rangaiah would
demonstrate that this Court has been consistently carving out exceptions to
the broad proposition formulated in Rangaiah. The findings in these
judgments, that have a direct bearing on the proposition formulated by
Rangaiah are as under:
1. There is no rule of universal application that vacancies must be
necessarily filled on the basis of the law which existed on the date
when they arose, Rangaiah’s case must be understood in the context
of the rules involved therein.58
2. It is now a settled proposition of law that a candidate has a right to
be considered in the light of the existed rules, which implies the "rule
in force" as on the date consideration takes place. The right to be
considered for promotion occurs on the date of consideration of the
eligible candidates59
.
3. The Government is entitled to take a conscious policy decision not
to fill up the vacancies arising prior to the amendment of the rules.
The employee does not acquire any vested right to being considered
for promotion in accordance with the repealed rules in view of the
58 Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, Para 26; Union of India v. Krishna
Kumar, (2019) 4 SCC 319, Para 10.
59 Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, Para 26; Union of India v. Krishna
Kumar, (2019) 4 SCC 319, Para 10.
57
policy decision taken by the Government.60 There is no obligation
for the Government to make appointments as per the old rules in the
event of restructuring of the cadre is intended for efficient working
of the unit.61 The only requirement is that the policy decisions of the
Government must be fair and reasonable and must be justified on the
touchstone of Article 14.62
4. The principle in Rangaiah need not be applied merely because posts
were created, as it is not obligatory for the appointing authority to
fill up the posts immediately.63
5. When there is no statutory duty cast upon the State to consider
appointments to vacancies that existed prior to the amendment, the
State cannot be directed to consider the cases.64
37.1 The above-referred observations made in the fifteen decisions that have
distinguished Rangaiah’s case demonstrate that the wide principle enunciated
therein is substantially watered-down. Almost all the decisions that
distinguished Rangaiah hold that there is no rule of universal application to
the effect that vacancies must necessarily be filled on the basis of law that
60 K. Ramulu v. Suryaprakash Rao, (1997) 3 SCC 59, Paras 12 and 13, Shyam Chandra Das v.
State of Orissa, (2003) 4 SCC 218, Para 9, State of Punjab v. Arun Kumar Aggarwal, (2007)
10 SCC 402, Para 38; Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, Para 28.
61 G. Venkateshwara Rao v. Union of India, (1999) 8 SCC 455, Para 4.
62 Rajasthan Public Service Commission v. Charan Ram, (1998) 4 SCC 202, Para 15; K.
Ramulu v. Suryaprakash Rao, (1997) 3 SCC 59, Para 15.
63 In Delhi Judicial Services Association v. Delhi High Court, (2001) 5 SCC 145, Para 5.
64 Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, Para 25.
58
existed on the date when they arose. This only implies that decision in
Rangaiah is confined to the facts of that case.
37.2 The decision in Deepak Agarwal (supra) is a complete departure from
the principle in Rangaiah, in as much as the Court has held that a candidate
has a right to be considered in the light of the existing rule. That is the rule in
force on the date the consideration takes place. This enunciation is followed
in many subsequent decisions including that of Union of India v. Krishna
Kumar (supra). In fact, in Krishna Kumar Court held that there is only a "right
to be considered for promotion in accordance with rules which prevail on the
date on which consideration for promotion take place.”
37.3 The consistent findings in these fifteen decisions that Rangaiah’s case
must be seen in the context of its own facts, coupled with the declarations
therein that there is no rule of universal application to the effect that vacancies
must necessarily be filled on the basis of rules which existed on the date which
they arose, compels us to conclude that the decision in Rangaiah is impliedly
overruled. However, as there is no declaration of law to this effect, it
continues to be cited as a precedent and this Court has been distinguishing it
on some ground or the other, as we have indicated hereinabove. For clarity
and certainty, it is, therefore, necessary for us to hold;
(a) The statement in Y.V. Rangaiah v. J. Sreenivasa Rao that,
“the vacancies which occurred prior to the amended rules would
59
be governed by the old rules and not by the amended rules”, does
not reflect the correct proposition of law governing services under
the Union and the States under part XIV of the Constitution. It is
hereby overruled.
(b) The rights and obligations of persons serving the Union and
the States are to be sourced from the rules governing the services.
Application of the principle to the facts of the present case:
38.1 Returning to the facts of the present case, we have noticed that the High
Court has proceeded on the premise that the vacancies occurring before the
amendment of the Rules on 25.11.2006 must be governed by the 1966 Rules.
The decision of the High Court took within its sweep even the 7 new posts of
Labour Officers that were sanctioned by an inter-departmental letter dated
20.07.2006, which included even the 3 posts allocated for direct recruitment.
The direction of the High Court to encompass even the 3 posts allocated for
direct recruitment was on the ground that the posts were sanctioned on
20.07.2006, which is prior to the amendment of the Rules on 25.11.2006.
38.2 We have already held that there is no right for an employee outside the
rules governing the services. We have also followed and applied the
Constitution Bench decisions in Union of India v. Tulsiram Patel (supra) and
more particularly the decision in Roshan Lal Tandon v. Union of India (supra)
that the services under the State are in the nature of a status, a hallmark of
60
which is the need of the State to unilaterally alter the rules to subserve the
public interest. The 2006 rules, governing the services of the Respondents
came into force immediately after they were notified. There is no provision
in the said rules to enable the Respondents to be considered as per the 1966
Rules. The matter must end here. There is no other right that Respondents no.
1 to 3 can claim for such consideration.
39.1 The alternative plea of the Government based on its policy decision to
restructure the cadre by creating additional posts and also providing for direct
recruitment by amending the rules, as a justification for not filling up the
vacancies that arose prior to the amendment is fully supported by the
following decisions of this Court.65
39.2 The material placed on record shows that the additional posts of Labour
Officers are created on 20.07.2006 and immediately thereafter the 12 labour
zones were created. This is followed by amendment to the Rules with effect
from on 25.11.2006 restructuring the cadre. The facts fully justify the
alternative submission made by the State and we have no hesitation in
accepting the said submission.
65 K. Ramulu v. S. Suryaprakash Rao, (1997) 3 SCC 59; Rajasthan Public Service Commission
v. Chanan Ram, (1998) 4 SCC 202; G. Venkateshwara Rao v. Union of India, (1999) 8 SCC
455; Shyama Charan Dash v. State of Orissa, (2003) 4 SCC 218; State of Punjab v. Arun
Kumar Aggarwal, (2007) 10 SCC 402; Deepak Agarwal v. State of U.P., (2011) 6 SCC 725;
State of Tripura v. Nikhil Ranjan Chakraborty, (2017) 3 SCC 646; Union of India v. Krishna
Kumar (2019) 4 SCC 319; State of Orissa v. Dhirendra Sundar Das, (2019) 6 SCC 270;
Rajasthan State Sports Council v. Uma Dadhich, (2019) 4 SCC 316.
61
40. For these reasons stated above we set aside the judgment of the High
Court in CWP No. 3028 of 2008 dated 28.12.2009 and allow Civil Appeal No.
9746 and Civil Appeal No. 9747 of 2011. There shall be no order on cost.
……………………………….J.
 [UDAY UMESH LALIT]
……………………………….J.
 [S. RAVINDRA BHAT]
……………………………….J.
[PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
MAY 20, 2022

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