Case: THE STATE OF ODISHA Vs. DHIRENDRA SUNDAR DAS

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.?).The O.A.T. had directed the State to separately assess the vacancies for the years 2001 to 2005 year wise, conduct the process of calling for names, hold a D.P.C. in accordance with established procedure, and make appointments within a period of six months.2.4. In this background, the State decided to keep the recruitment process for OAS Class – II posts for the recruitment year 2008 on hold, till the process of recruitment by way of promotion/selection for the years 2001¬2005 was completed.2.5. Pursuant to the Judgment of the Tribunal, the State vide Letter dated 19.06.2008 called for recommendations for the years 2001 to 2005 from all Departments, Heads of Departments, and Collectors for recruitment to OAS Class – II posts under Rule 3(c) of the OAS Class II Rules, 1978.2.6. Aggrieved by the delay in completion of the recruitment process for the years 2007¬2008, various O.A.s were filed by the contesting Respondents, and other similarly situated persons, who had been recommended for consideration to OAS Class – II posts against the vacancies for 2008 before the O.A.T. The Applicants prayed for completion of the recruitment process by convening a D.P.C.; and declaration of the selection list for the years 2007¬2008 within a month, and issuance of appointment letters.2.7. The State undertook restructuring of the Orissa Administrative Service in February 2009.The re-structured Orissa Administrative Service cadre would comprise of different Grades, viz. – OAS Class – I (Junior Branch), OAS Class I (Senior Branch), OAS (Supertime Scale), OAS (Senior Grade in Supertime Scale), OAS (Superior Administrative Grade), and OAS (Special Secretary)2.8. By Resolution dated 25.05.2009, the Orissa Revenue Service Group ‘B? cadre was constituted. The existing cadre of OAS Class – II posts was abolished. The corresponding cadre of OAS Class – II was the Orissa Revenue Service Group ‘B? cadre.2.9. The State vide two Notifications dated 07.12.2010 appointed candidates on OAS Class – II posts by way of selection and promotion for the recruitment years 2001 to 2005.2.10. The State framed the Orissa Administrative Services (Method of Recruitment and Conditions of Service) Rules, 2011 ( ?OAS Rules, 2011?) under Article 309 of the Constitution of India. The Rules came into force on 25.06.2011.Rule 17 of the OAS Rules, 2011 repealed the OAS Class II Rules, 1978 under which the 2008 recruitment process had been initiated.Rule 4 of the OAS Rules, 2011 provides for recruitment by promotion to Group ‘A? (Junior Branch) posts of the 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 similarly situated persons could not be granted unless 50% of the available vacancies were first filled up by direct recruitment in accordance with the Rules. The contesting Respondents had merely been recommended by their respective Departmental Authorities for promotion/selection to OAS Class – II (Group B) posts. There was no Selection Board/D.P.C. which was convened, nor was any Select List/Merit List prepared. The contesting Respondents who were continuing against Class III posts, could be considered for promotion only to Class – II (Group B) posts, and not directly to Class – I (Group A) posts. No right had accrued in favour of the contesting Respondents to seek convening of a Selection Board/Department Promotion Committee for appointment on OAS Class – II posts. The contesting Respondents would be eligible for consideration against the available Class – II/Group B posts in the promotional quota, after 50% of the vacancies were filled up by direct recruitment.2.12. Aggrieved by the common Judgment and Order dated14.03.2012 passed by the O.A.T., the contesting Respondents filed W.P.s before the Orissa High Court seeking quashing of the Judgment dated 14.03.2012 passed by the O.A.T.; issuance of directions to the State to complete the recruitment process to OAS Class – II posts on the basis of the recommendations made in favour of the contesting Respondents; and, grant promotion to the contesting Respondents to OAS Class – II posts with all service and promotional benefits from the date such benefits were due.2.13. The Division Bench by the common impugned Judgment and Order dated 30.04.2018 disposed of the W.P.s filed by the contesting Respondents, and set aside the Judgment dated 14.03.2012 passed by the O.A.T. The State Authorities were directed to call for a review D.P.C. to consider the cases of the contesting Respondents, and other eligible officers, and complete the recruitment process for 150 vacant OAS Class – II posts as against the recruitment year of 2008 within 3 months. The High Court held that the 150 vacant OAS Class – II posts for which recommendations were made in the year 2008, prior to the abolition of the OAS Class – II posts, and re¬ constitution of the Orissa Revenue Service cadre, be filled up under the OAS Class II Rules, 1978.3. Aggrieved by the impugned Judgment and Order dated 30.04.2018 as well as the impugned Orders dated 08.08.2018 and 10.08.2018 passed by the Division Bench, the State has filed the present Special Leave Petitions.

Reasoning:
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.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.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.As such, the contesting Respondents who had merely been recommended by their respective Departmental Authorities could not be considered to be ‘eligible? for appointment by way of promotion or selection under the erstwhile OAS Class II Regulations, 1978, since the steps set out in the regulations mentioned below had not been completed prior to the repeal of the old OAS Class II Rules, 1978 and the OAS Class7 – preparation of a list of suitable candidates by the Selection8 – consultation with the Orissa Public ServiceRegulation 9 – recommendation of the Orissa Public Service Commission;10 – preparation and placement of final list before the State Government forthe 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.In the present case the contesting Respondents had merely been recommended by the respective Departmental Authorities under Regulation 6. The recruitment process had not proceeded any further thereafter. There was no time¬frame prescribed for completion of the recruitment process under the erstwhile OAS Class – II Rules, 1978 or the OAS Class – II Regulations, 1978.7.15. In the meanwhile, the State restructured the Orissa Administrative Service cadre, and constituted the Orissa Revenue Service vide Resolutions dated 28.02.2009 and 25.05.2009.As a part of the 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 contesting Respondent was promoted to the OAS Group A (Junior Branch) cadre.7.19. The contesting Respondents cannot claim any lien over the abolished OAS Class – II posts, which were governed by the old OAS Class II Rules, 1978 and OAS Class II Regulations, 1978.7.The submission of the contesting Respondents that their case be considered at par with the candidates appointed by way of selection and promotion as against the vacancies for the years 2001 to 2005 is not tenable.The appointments of persons as against the vacancies for the years 2001 to 2005 were made vide two Notifications dated December 7, 2010, which were issued prior to the repeal of the old OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978.7.22. Finally, the High Court had relied upon the decision in Mukti Ranjan Acharya & Ors. v. State of Orissa & Ors. 2012 (II) OLR 61. [W.P. (C) No. 19827/2009; Decided on 16.04.2012] to hold that promotions could be given under the repealed OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978. The S.L.P. against this judgment had been simply dismissed. TheCounsel for the contesting Respondents prayed for dismissal of the present Civil Appeals by submitting that the said decision had been affirmed by this Court vide Order datedis a well¬settled principle of law emerging from a catena of decisions of this Court, including Supreme Court Employees? Welfare Association v. Union of India & Anr. (1989) 1 SCC 187 (paras 22 and 23) and State of Punjab v. Davinder Pal Singh Bhullar (2011) 14 SCC 770 (paras 112 and 113), that the dismissal of a S.L.P. in limine simply implies that the case before this Court was not considered worthy of examination for a reason, which may be other than the merits of the case. Such in limine dismissal at the threshold without giving any detailed reasons, does not constitute any declaration of law or a binding precedent under Article 141 of the