STATE OF ORISSA & ANR. versus DHIRENDRA SUNDAR DAS & ORS.
[2019] 7 S.C.R. 197, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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STATE OF ORISSA & ANR.
v.
DHIRENDRA SUNDAR DAS & ORS.
(Civil Appeal No. 4646 of 2019)
MAY 06, 2019
[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Service Law – Appointment – On 28.04.08 the appellant-State
issued letter to all the Departments inviting recommendations for
appointment by way of promotion to the Orissa Administrative Service
Class-II (OAS Class-II) cadre having 150 vacancies – Recruitment
process was to be undertaken in accordance with the 1978 Rules
and the 1978 Regulations – Concerned Departmental Authorities
forwarded the names of 559 candidates, including the Respondents,
for consideration – State decided to keep the recruitment process
for OAS Class-II posts for the recruitment year 2008 on hold, till
the process of recruitment for the years 2001-2005 was completed
– Aggrieved by the delay, OAs filed by the Respondents before the
Tribunal – State undertook restructuring of the Orissa Administrative
Service in Feb. 2009 – Existing cadre of OAS Class-II posts was
abolished and corresponding cadre of the Orissa Revenue Service
Group ‘B’ cadre was created – State appointed candidates on OAS
Class-II posts for the recruitment years 2001 to 2005 – 1978 Rules
under which the 2008 recruitment process had been initiated,
repealed– Tribunal directed the State to take immediate steps to fill
up Class- II/Group‘B’ posts in the Orissa Revenue Service cadre –
Challenge by the Respondents –Judgment of the Tribunal set aside
–On appeal, held: Respondents
cannot claim an accrued or vested
right for selection or promotion to OAS Class-II posts, merely on
the basis of their names being forwarded –  Their names were merely
recommended by their respective Departmental Authorities under
Regulation 6 – Recruitment process did not proceed any further in
accordance with Regulations 7-10 – Respondents can not be
considered to be ‘eligible’ for appointment under the erstwhile 1978
Regulations, since the steps set out in the aforesaid regulations had
not been completed prior to the repeal of the old 1978 Rules and
the 1978 Regulations – Further, the respondents did not challenge
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either the abolition of OAS Class-II posts, or the creation of the
corresponding Orissa Revenue Service Group ‘B’ posts – To the
contrary, some of them 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 – Judgment of the Division Bench
set aside – Orissa Administrative Service, Class II (Recruitment)
Rules, 1978 – Orissa Administrative Service, Class-II (Appointment
by Promotion and Selection) Regulations, 1978 – Orissa
Administrative Services (Method of Recruitment and Conditions of
Service) Rules, 2011 – Orissa Revenue Service (Recruitment) Rules,
2011.
Practice & Procedure – In limine dismissal of SLP – Effect of
– Held: Dismissal of a S.L.P. in limine simply implies that the case
before the 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
u/Art.141 – Constitution of India – Art.141.
Allowing the appeals, the Court
HELD: 1.1 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.
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 Orissa Administrative Service, Class II
(Recruitment) Rules, 1978  and the Orissa Administrative Service,
Class-II (Appointment by Promotion and Selection) Regulations,
1978. Rule 6 of the OAS Class II Rules, 1978 provided
for the determination of vacancies by the State Government.
[Paras 7.1-7.3] [208-B-D]
1.2 Rule 3 of the OAS Class II, Rules 1978 provided that
recruitment to OAS Class II posts was to be made 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
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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 accordance with Regulation
6(i) of the OAS Class II Regulations, 1978, any recruitment
process by way of selection or promotion was to be initiated by
the State by calling for recommendations from Collectors, Heads
of Departments and Departments of Governments, who were
required to forward a list of candidates considered suitable to
the Administrative Department (i.e. the Revenue Department).
On receipt of the recommendations, the Administrative
Department (i.e. the Revenue Department) was required to place
a list of recommended candidates in a tabular form before a
Selection Board constituted under Regulation 3. [Paras 7.4-7.6]
[208-G; 209-A-E]
1.3 Under Regulation 7, the Selection Board was required
to consider the recommendations so received from the
Administrative Department, scrutinise the records relating to
the candidates who had been recommended, and prepare a list of
candidates who in the opinion of the Selection Board are suitable
for appointment to OAS Class – II posts. Thereafter, as per
Regulation 8, the list prepared by the Selection Board under
Regulation 7 was required to be referred to the Orissa Public
Service Commission by the State Government, along with the
service records of the all candidates whose names feature in
the
list. 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. 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
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the vacancies of 2008. 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.
[Paras 7.7-7.9, 7.10, 7.12 and 7.14] [209-F-H; 210-A-C;
211-C-D; 213-D-E]
1.4 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. To the
contrary, some of them 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. 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. 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. 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. [Paras 7.15-7.19 and
7.21] [213-G-H; 214-A-D; 216-D-E]
1.5 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 Constitution.
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
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arisen during the recruitment year 2008. 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. [Paras 7.22 and 8] [217-A-D]
Union of India & Ors. v. Krishna Kumar & Ors. 2019
(1) SCALE 691 ; Deepak Agarwal & Another v. State
of Uttar Pradesh & Ors. (2011) 6 SCC 725 : [2011] 4
SCR 149 ; State of Tripura & Ors. v. Nikhil Ranjan
Chakraborty & Ors. (2017) 3 SCC 646 ; Rajasthan Public
Service Commission v. Chanan Ram (1998) 4 SCC 202 ;
Supreme Court Employees’ Welfare Association v. Union
of India & Anr. (1989) 1 SCC 187 : [1989] 3 SCR 
488 ; State of Punjab v. Davinder Pal Singh Bhullar
(2011) 14 SCC 770 : [2011] 15 SCR 540 – relied on.
Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors. (1983)
3 SCC 284 ; Mukti Ranjan Acharya & Ors. v. State of
Orissa & Ors. 2012 (II) OLR 61 – referred to.
Case Law Reference
2019 (1) SCALE 691
relied on
Para 5.2
(1983) 3 SCC 284
referred to
Para 6.4
[2011] 4 SCR 149
relied on
Para 7.11
(2017) 3 SCC 646
relied on
Para 7.11
(1998) 4 SCC 202
relied on
Para 7.11
2012 (II) OLR 61
referred to
Para 7.22
[1989] 3 SCR 488
relied on
Para 7.22
[2011] 15 SCR 540
relied on
Para 7.22
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4646
of 2019.
From the Judgment and Order dated 30.04.2018 of the High Court
of Orissa at Cuttack in Writ Petition (Civil) No. 14831 of 2013.
With
Civil Appeal Nos. 4647, 4648, 4649, 4650, 4651, 4652 of 2019.
STATE OF ORISSA & ANR. v. DHIRENDRA SUNDAR DAS &
ORS.
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Ravi Prakash Mehrotra, Ankit Agarwal, Advs. for the Appellants.
Ms. Meenakshi Arora, Sr. Adv., Soumyajit Pani, B. S. Tripathy,
Vinodh Kanna B., Shibashish Misra, Advs. for the Respondents.
The Judgment of the Court was delivered by
INDU MALHOTRA, J. Leave granted.
1. The present Civil Appeals arise out of S.L.P. (C) Nos. 4976-
4980/2019 and S.L.P. (C) Diary Nos. 13938 and 13946/2019.
S.L.P. (C) Nos. 4976-4980/2019 arise out of the common
impugned Judgment and Order dated 30.04.2018 passed by a Division
Bench of the Orissa High Court in W.P. (C) Nos. 14831/2013, 18749/
2012, 6720/2013, 25961/2017 and 9200/2016.
S.L.P. (C) Diary Nos. 13938 and 13946/2019 arise out of the
impugned Orders dated 08.08.2018 and 10.08.2018 passed by a Division
Bench of the Orissa High Court whereby W.P. (C) Nos. 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
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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.
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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
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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 dated
14.03.2012 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.
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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.
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 & Ors. v. Krishna Kumar & Ors.1, 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 candidates for selection/promotion, since no D.P.C. or
Selection Committee was convened for the same.
5.3. It was further submitted that the contesting Respondents
did not
challenge the abolition of the OAS Class – II cadre,
and the consequent creation of the Orissa Revenue Service
Group ‘B’ cadre.
5.4. The contesting Respondents could not claim a lien over the
OAS Class – II cadre, which had since been abolished in
2009, and replaced by the Orissa Revenue Service Group
‘B’ cadre.
5.5. Some of the contesting Respondents had submitted
themselves before the Selection Committee convened in
2013, and another in 2018, under the new ORS Rules, 2011
1 2019 (1) SCALE 691.
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for appointment to vacant posts in the Orissa Revenue Service
Group ‘B’ cadre.
It was, therefore, not open to claim appointments to the
OAS Class – II posts under the repealed Rules in an abolished
cadre.
5.6. The claim of the contesting Respondents cannot be
considered at par with the candidates for the years 2001 to
2005 as their appointments were made prior to the repeal of
the OAS Class II Rules, 1978 and the OAS Class II
Regulations, 1978.
5.7. It was further submitted on behalf of the State that if the
directions of the Division Bench were to be carried out,
supernumerary posts would be required to be created to
accommodate the contesting Respondents which was not
possible. This would create a serious precedent, since there
were 559 candidates who were similarly situated as the
contesting Respondents, and had been recommended by
various Departments in 2008.
6. SUBMISSIONS OF RESPONDENTS
6.1.
Ms. Meenakshi Arora, learned Senior Advocate, submitted
that 150 vacant OAS Class – II posts were available in
2008. The contesting Respondents were eligible, and were
duly recommended for appointment by way of selection
promotion under the OAS Class II Rules, 1978 and the OAS
Class II Regulations, 1978.
6.2.
The State, being a model employer, cannot discriminate in
the matter of selection/promotion to OAS Class – II posts
on a ‘pick-and-choose’ basis.
6.3.
Admittedly, the OAS Class II Rules, 1978 and the OAS
Class II Regulations, 1978 were in force at the time
when
the State decided to fill up 150 OAS Class – II posts on
28.04.2008. The vacancies were required to be filled up
under the OAS Class II Rules, 1978.
6.4.
Reliance was placed by Ms. Arora, learned Senior Advocate,
on the decision of this Court in Y.V. Rangaiah & Ors. v. J.
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ORS. [INDU MALHOTRA, J.]
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Sreenivasa Rao & Ors.2. 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 vacancies. –
The State Government may decide the number of
vacancies in the service as may be required to be filled
up in any particular year:
Provided that no recruitment to the service shall be
made without the prior consultation with the
Commission”
(emphasis supplied)
7.4. Rule 3 of the OAS Class II, Rules 1978 provided that
recruitment to OAS Class II posts was
to be made 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)].
2  (1983) 3 SCC 284.
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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.
Further, Rule 8(5) also mandated that the State was
required to consult the Orissa Public Service Commission
before appointment by way of promotion and selection.
7.5. As per Rule 5 of the OAS Class II Rules, 1978, recruitment
to OAS Class II posts by way of selection or promotion
shall be in accordance with the Orissa Class II Regulations,
1978, which outline the recruitment process.
7.6. In accordance with Regulation 6(i) of the OAS Class II
Regulations, 1978, any recruitment process by way of
selection or promotion was to be initiated by the State by
calling for recommendations from Collectors, Heads of
Departments and Departments of Governments, who were
required to forward a list of candidates considered suitable
to the Administrative Department (i.e. the Revenue
Department).
On receipt of the recommendations, the Administrative
Department (i.e. the Revenue Department) was required
to place a list of recommended candidates in a tabular form
before a Selection Board constituted under Regulation 3.
7.7. Under Regulation 7, the Selection Board was required to
consider the recommendations so received from the
Administrative Department, scrutinise the records relating
to the candidates who had been recommended, and prepare
a list of candidates who in the opinion
of the Selection Board
are suitable for appointment to OAS Class – II posts.
7.8. Thereafter, as per Regulation 8, the list prepared by the
Selection Board under Regulation 7 was required to be
referred to the Orissa Public Service Commission by the
State Government, along with the service records 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
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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 & Another v. State of Uttar Pradesh
& Ors.3 this Court had held that the right to be considered
for promotion accrues on the date of consideration of eligible
candidates.4
The relevant extract of the decision is extracted
hereinbelow for ready reference:
“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
3  (2011) 6 SCC 725.
4  See also Union of India & Ors. v. Krishna Kumar & Ors., 2019 (1) SCALE 691 (para
   11); and, State of Tripura & Ors. v. Nikhil Ranjan Chakraborty & Ors., (2017) 3 SCC
  646 (paras 8 and 9).
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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 Y.V. Rangaiah case [(1983) 3 SCC 284 : 1983 SCC
(L&S) 382] 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.”
(emphasis supplied)
7.12. 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 Class II Regulations, 1978:
Regulation 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.
STATE OF ORISSA & ANR. v. DHIRENDRA SUNDAR DAS &
ORS. [INDU MALHOTRA, J.]
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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 & Ors. v. J. Sreenivasa Rao & Ors.5 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 & Another v. State of Uttar Pradesh &
Ors.6. The relevant excerpt of the decision is reproduced
hereinbelow:
“24. We are of the considered opinion that the judgment
in Y.V. Rangaiah case[(1983) 3 SCC 284 : 1983 SCC (L&S)
382] 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 yearwise panel of the
5 (1983) 3 SCC 284.
6  (2011) 6 SCC 725.
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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.”
(emphasis supplied)
7.14. 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.
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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.
7.20. In this context, reliance may be placed on two decisions of
this Court in Rajasthan Public Service Commission v.
Chanan Ram7 and Union of India & Ors. v. Krishna
Kumar & Ors.8.
In Rajasthan Public Service Commission v. Chanan
Ram9 this Court rejected a claim for filing up vacancies in
posts which no longer existed, after an amendment of the
extant Rules.
The relevant excerpt of the decision is reproduced
hereinbelow for ready reference:
“14. …Once it is held that the old vacancies were in posts
which no longer existed after April 1995, there remained
no occasion to consider whether these old vacancies could
be filled in by
applying earlier rules of recruitment to the
very same posts…There were no such posts after April
7  (1998) 4 SCC 202.
8  2019 (1) SCALE 691.
9 (1998) 4 SCC 202.
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1995 in the cadres of the Rajasthan Agricultural Marketing
Service as seen earlier…
15. …On the contrary a three-Judge Bench judgment of
this Court in the case of Jai Singh Dalal v. State of
Haryana [1993 Supp (2) SCC 600 : 1993 SCC (L&S) 846
: (1993) 24 ATC 788] would squarely get attracted on the
facts of the present case. A.M. Ahmadi J., speaking for
the three-Judge 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 [(1974) 3 SCC
220 : 1973 SCC (L&S) 488] 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.”
(emphasis supplied)
In Union of India & Ors. v. Krishna Kumar & Ors.10
this Court was dealing with a similar situation of cadre
restructuring.
The relevant extract of the decision is reproduced
hereinbelow for ready reference:
“14. In view of this statement 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
10  2019 (1) SCALE 691.
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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.”
(emphasis supplied)
7.21. 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.11 [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. The
Counsel 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 dated
28.09.2012.
It is 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 &
11 2012 (II) OLR 61.
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Anr.12 and State of Punjab v. Davinder Pal Singh
Bhullar13, 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 Constitution.
8. 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 re-structured the cadre, and
abolished the OAS Class II cadre. The re-constituted 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.
In view of the aforesaid findings, the present Civil Appeals are
allowed. The common impugned Judgment and Order dated 30.04.2018
passed by the Orissa High Court in W.P. (C) Nos. 14831 of 2013, 18749
of 2012, 6720 of 2013, 25961 of 2017 and 9200 of 2016 as well as the
impugned Orders dated 08.08.2018 and 10.08.2018 passed by the Orissa
High Court in W.P. (C) Nos. 7383 and 14665/2018 are set aside.
Pending Interlocutory Applications, if any, are disposed of in terms
of the Judgment.
Ordered accordingly.
12 (1989) 1 SCC 187 (paras 22 and 23).
13 (2011) 14 SCC 770 (paras 112 and 113).
Divya Pandey
Appeals allowed.
STATE OF ORISSA & ANR. v. DHIRENDRA SUNDAR DAS &
ORS. [INDU MALHOTRA, J.]