‘No vested right to promotion’: Supreme Court shuts door on 2 Odisha officers’ plea for elevation

Justices Dipankar Datta and Augustine George Masih said that once the 2021 Rules were framed, those instructions stood superseded.

“An employee does not have a vested right to be promoted nor does he possess a legitimate expectation to be promoted. The limited right that an employee can legitimately claim is for consideration of his candidature. However, should the government, being the appointing authority choose, in its wisdom, to not fill up vacancies by promotion, especially when there is a change in cadre and restructuring of posts, it cannot be compelled to carry out the appointments,” the Supreme Court bench said on May 18.

Top court relies on Raj Kumar judgment

• Allowing the appeals, the Supreme Court strongly relied on its earlier three-judge bench ruling in State of Himachal Pradesh v Raj Kumar, which had overruled the long-standing precedent in Y V Rangaiah.
• The apex court noted that Raj Kumar had clearly held there is “no rule of universal application” that vacancies must necessarily be filled under the rules existing when those vacancies arose.
• Instead, employees only have a right to be considered under the rules prevailing on the date that the consideration actually takes place.
• The Supreme Court expressed displeasure over the high court’s treatment of the precedent.
• The top court said it was pained to observe that a “bare perusal of the law laid down in Raj Kumar (supra)” would have set the controversy at rest, adding that reliance placed by the state on a binding precedent ought to receive due judicial consideration.

Selection post, not promotional post

• An important factor weighed by the Supreme Court was that the ARTO post was a “selection post” and not a regular promotional post.
• The post being a selection post and not one of promotion, the manner of selection is a matter of policy which completely vests with the government,” the apex court observed.
• Holding that the state was within its authority to change the mode of recruitment and fill the posts through competitive examination, the Supreme Court concluded that Dash and Sahoo could not claim appointment except in accordance with the 2021 Rules.
• The appeals were accordingly allowed, and the high court’s orders were set aside.
• The parties were directed to bear their own costs.

Dispute over promotion to ARTO posts

The controversy arose from the Odisha government’s executive instructions issued on November 17, 1981, under which Grade-I assistants with five years of service were eligible for promotion to the post of ARTO based on merit and suitability. The instructions were intended to operate till formal recruitment rules were framed.

Dash and Sahoo were appointed as junior assistants in March 2013 and promoted as senior assistants in June 2016. Subsequently, following cadre restructuring in January 2019, the post of senior assistant was redesignated as assistant section officer (ASO).

The respondents claimed that after completing five years of service, they became eligible for promotion as ARTOs under executive instructions. In June 2021, the transport commissioner sought the convening of a DPC to fill 16 vacant ARTO posts and included their names among the eligible candidates.

However, the state government rejected the proposal in October and December 2021, taking the stand that the ARTO post was no longer part of the promotional hierarchy after cadre restructuring and that fresh recruitment rules were in the process of being implemented.

The Odisha Transport Service (Method of Recruitment and Conditions of Service) Rules, 2021, were later notified on January 5, 2022, providing for recruitment to the ARTO post through a competitive examination conducted by the Odisha Public Service Commission (OPSC).

High court directed to set up DPC

• In February 2023, a single judge of the Orissa High Court quashed the state’s rejection orders and directed the transport commissioner to convene a DPC for considering the respondents’ cases under the 1981 executive instructions.
• The division bench dismissed the state’s intra-court appeals in November 2023.
• The state then approached the Supreme Court.

Executive instructions ceased after 2021 Rules: SC

The Supreme Court said that the 1981 executive instructions themselves contemplated that they would operate only till cadre rules were finalised. Once the 2021 Rules were framed under Article 309 of the Constitution, those instructions stood superseded.

Rejecting the high court’s reasoning that steps already initiated for convening a DPC stood protected, the Supreme Court said no completed act had taken place before the 2021 Rules came into force. “Not only were the appointments not made, but even the DPC was not constituted. In such a case, there is no act for the 2021 Rules to save it from ‘supersession’,” the Supreme Court said.

The top court also reiterated that statutory rules framed under Article 309 prevail over executive instructions in case of conflict.