TMI Blog2019 (5) TMI 1949X X X X Extracts X X X X X X X X Extracts X X X X ..... by three methods-first, direct recruitment by competitive examination [Rule 3(a)]; second, promotion from amongst Gazetted Officers of a certain class [Rule 3(b)]; and third, selection of non-Gazetted Officers [Rule 3(c)] - The proportion of candidates to be recruited by the methods specified above as per Rule 8 of the OAS Class II Rules, 1978 was-50% by direct recruitment, 30% by promotion, and 20% by selection. In the present case, the names of 559 candidates, including the contesting Respondents, were merely recommended by their respective Departmental Authorities Under Regulation 6. The recruitment process did not proceed any further in accordance with Regulations 7, 8, 9 and 10. No final list of selected candidates was placed by the Orissa Public Service Commission before the State Government for the purposes of appointment as against the vacancies of 2008 - the contesting Respondents had not acquired an accrued or vested right of selection or promotion to OAS Class-II posts in accordance with the OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978, since their names had never been considered for selection or promotion beyond the stage contemplated Under Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 7383 and 14665/2018 were disposed of in terms of the common impugned judgment and Order dated 30.04.2018. 2. The factual matrix in which the present Civil Appeals arise for consideration, briefly stated, are as under: 2.1. On 28.04.2008, a Letter was issued by the Appellant-State of Orissa ( State ) to all Departments, Heads of Departments, and Collectors inviting recommendations for appointment by way of promotion to the Orissa Administrative Service Class-II ( OAS Class-II ) cadre having 150 vacancies. The recruitment process was to be undertaken in accordance with the Orissa Administrative Service, Class II (Recruitment) Rules, 1978 ( OAS Class II Rules, 1978 ) and the Orissa Administrative Service, Class-II (Appointment by Promotion and Selection) Regulations, 1978 ( OAS Class II Regulations, 1978 ). 2.2. The concerned Departmental Authorities forwarded the names of 559 candidates, including the contesting Respondents, for consideration to be promoted/selected to OAS Class-II posts. 2.3. The State issued Office Order dated 07.06.2008, for implementation of the judgment dated 11.04.2007 passed by the Orissa Administrative Tribunal, Cuttack Bench ( O.A.T. ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2011 repealed the OAS Class II Rules, 1978 under which the 2008 recruitment process had been initiated. Rule 4 of the OAS Rules, 2011 provides for recruitment by promotion to Group 'A' (Junior Branch) posts of the re-constituted Orissa Administrative Service cadre from members of the Orissa Revenue Service. Similarly, the Orissa Revenue Service (Recruitment) Rules, 2011 ( ORS Rules, 2011 ) came into force on June 27, 2011 to regulate the method of recruitment, and conditions of service, of persons appointed to the Orissa Revenue Service, including Group 'B' posts. 2.11. The O.A.T. vide judgment dated 14.03.2012 decided the O.A.s filed by the contesting Respondents and other similarly situated persons who were under consideration for the vacancies for the recruitment year 2008. The State was directed to take immediate steps to fill up Class-II/Group 'B' posts in the Orissa Revenue Service cadre. 50% of the vacancies were to be filled up by direct recruitment, and 50% by promotion from amongst Class-III/Group C employees as early as practicable, and preferably within six months. The relief claimed by the contesting Respondents and other simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 10.08.2018 passed by the Division Bench, the State has filed the present Special Leave Petitions. 4. The issue which arises for our consideration in the present Civil Appeals is whether the Division Bench of the Orissa High Court was justified in directing the State to convene a review D.P.C. for considering the case of the contesting Respondents and other eligible officers, and directing it to complete the recruitment process for recruitment year of 2008 to the 150 vacant posts. 5. Submissions of Petitioners 5.1. Mr. Ravi Prakash Mehrotra, Advocate on behalf of the State submitted that the Division Bench had committed a palpable error in directing the State to convene a review D.P.C. 5.2. Placing reliance on a recent decision of this Court in Union of India and Ors. v. Krishna Kumar and Ors. 2019 (1) SCALE 691, it was submitted that no right had accrued in favour of the contesting Respondents merely on account of their names being recommended by the respective Departmental Authorities to be considered for selection/promotion against the vacancies in the recruitment year 2008. The list of persons recommended cannot be considered to be the approved list of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Senior Advocate, on the decision of this Court in Y.V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors. (1983) 3 SCC 284. It was submitted that vacancies which had occurred prior to the repeal of the OAS Class II Rules, 1978 and OAS Class II Regulations, 1978; and the coming into force of the OAS Rules, 2011 and the ORS Rules, 2011, would be governed by the old Rules, viz. OAS Class II Rules, 1978 and OAS Class II Regulations, 1978. 7. Discussion and Analysis 7.1. The contesting Respondents cannot claim an accrued or vested right for selection or promotion to OAS Class-II posts in the year 2008, merely on the basis of their names being forwarded by the respective Departmental Authorities. 7.2. When the recruitment process for 2008 was initiated vide Letter dated April 28, 2008 by the State, the extant Rules and Regulations occupying the field for selection and promotion to OAS Class-II posts were the OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978. 7.3. Rule 6 of the OAS Class II Rules, 1978 provided for the determination of vacancies by the State Government. Rule 6 has been reproduced hereinbelow for ready reference: 6. Filing of va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of the all candidates whose names feature in the list. 7.9. After considering the list prepared Under Regulation 7 along with other documents and records received from the State Government, the Orissa Public Service Commission was required to recommend a list of candidates suitable for selection or promotion, as the case may be, Under Regulation 9. 7.10. The list of candidates recommended by the Orissa Public Service Commission Under Regulation 9 was required to be placed before the State Government. The said list, after any approval with modification, was to form the final list from which appointments were to be made to OAS Class-II posts by way of selection or promotion in accordance with Regulation 10. Thus, the recruitment process by way of selection or promotion, as the case may be, initiated in accordance with Regulation 6 would culminate on the making of a final list as per Regulation 10. Appointments by way of promotion or selection could be made only from amongst the candidates whose names featured in the final list prepared by the Commission, and placed before the State Government. 7.11. In Deepak Agarwal and Anr. v. State of Uttar Pradesh and Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 7-preparation of a list of suitable candidates by the Selection Board; Regulation 8-consultation with the Orissa Public Service Commission; Regulation 9-recommendation of the Orissa Public Service Commission; and, Regulation 10-preparation and placement of final list before the State Government for appointment. Thus, the contesting Respondents had not acquired an accrued or vested right of selection or promotion to OAS Class-II posts in accordance with the OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978, since their names had never been considered for selection or promotion beyond the stage contemplated Under Regulation 6. 7.13. Reliance placed by the Counsel for the Respondents on Y.V. Rangaiah and Ors. v. J. Sreenivasa Rao and Ors. (1983) 3 SCC 284 in order to submit that the vacancies which had arisen under the old Rules would be governed by the old Rules, is of no avail. A similar submission was rejected by this Court in Deepak Agarwal and Anr. v. State of Uttar Pradesh and Ors. (2011) 6 SCC 725. The relevant excerpt of the decision is reproduced hereinbelow: 24. We are of the considered opinion that the judgment in Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 28.02.2009 and 25.05.2009. As a part of the re-structuring exercise, the erstwhile OAS Class-II posts were abolished, and a corresponding new cadre of Group 'B' posts in the newly constituted Orissa Revenue Service was created. 7.16. The contesting Respondents have not challenged either the abolition of OAS Class-II posts, or the creation of the corresponding Orissa Revenue Service Group 'B' posts. 7.17. To the contrary, some of them have participated in the proceedings of the D.P.C. convened on 30.04.2013 for recruitment to the newly created Orissa Revenue Service Group 'B' cadre. After being considered, 6 of the contesting Respondents were selected, while 1 was kept on the Waiting List. The State appointed the said Respondents to the Orissa Revenue Service Group 'B' posts. However, only two out of the five contesting Respondents who were appointed, joined the posts. 7.18. Subsequently, during the pendency of the W.P.s, another D.P.C. was convened to consider the promotion of employees working in the Orissa Revenue Services Group 'B' posts to Orissa Administrative Service Group A (Junior Branch) posts. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havildar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such Rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havildars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion. 7.21. The submission of the contesting Respondents that their case be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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