Orissa High Court
Unknown vs State Of Orissa on 26 June, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 1311 of 2022
1. Manas Kumar Jena, aged about 35 years, S/o. Rabindra Jena,
At- Delua, PO- Jathia, Via- Singla, Dist- Balasore, PIN-756023.
2. Ranjan Kumar Jena, aged about 36 years, S/o. Hrushikesh
Jena, At- Khalagadia, PO- Kantia, Via/PS- Bonth, Dist- Bhadrak,
PIN-756114.
3. Mamata Manjari Panda, aged about 31 years, D/o. Judhistira
Panda, At- Koranta, PO-Randiahat, P.S- Bhadrak(R), Dist-
Bhadrak, PIN-756135.
4. Soumyadarsini Biswal, aged about 36 years, C/o. Niranjan
Biswal, At - Kuansa, PO-Bhadrak, Dist- Bhadrak, PIN-756100.
5. Biranchinarayan Biswal, aged about 39 years, C/o.
Gokulananda Biswal, At- Biswal sahi, PO- Kaupur, Via-
Barapada, Dist Bhadrak, PIN-756113.
6. Surya Narayan Biswal, aged about 36 years, C/o. Gokulananda
Biswal, At- Biswal sahi, PO- Kaupur, Via- Barapada, Dist-
Bhadrak, PIN-756113.
7. Litu Mohapatra, aged about 32 years, S/o.Arjun Mohapatra, At
- Aranji , PO-Ganijanga, Via- Bonth, P.S- Bhadrak Rural, Dist-
Bhadrak, PIN-756114.
8. Harekrushna Mohapatra, aged about 37 years, S/o.
Jayakrushna Mohapatra, At-Aranji, PO/Via- Barapada, Dist-
Bhadrak, PIN-756113.
9. Soumya Ranjan Das, aged about 34 years, C/o. Sudhakar Das,
At - Padampur, PO-Ganjeibadi, Via- Dolasahi, Dist- Bhadrak
PIN-756127.
W.A. No. 1311 of 2022 Page 1 of 22
10. Manoj Kumar Mohapatra, aged about 32 years, S/o.Prafulla
Kumar Mohapatra, At- Aranji, PO/Via- Barapada Dist- Bhadrak,
PIN-756113.
11. Dhaneswar Dhal, aged about 30 years, C/o. Harihar Dhal,
At/PO- Tillo Talapada, Dist- Bhadrak, PIN-756114.
12. Sagar Charana Sethi, aged about 36 years, C/o.Ananda Charan
Sethi, At/PO-Kenduapada, Via- Barikpur Bazar, Dist-Bhadrak,
PIN-756112.
13. Manaswini Mohanty, aged about 39 years, C/o. Radhakrushna
Mohanty, Plot No.183, Sector-5, Niladri Vihar,
Chandrasekharpur, Dist- Khorda, PIN-751021.
14. Sarat Kumar Nayak, aged about 39 years, C/o. Ganesh Pr.
Nayak, At- Charitira, PO-Barapada, Dist- Bhadrak, PIN-756113.
15. Swati Suchitra Sen, aged about 33 years, C/o.Mihir Kumar Sen,
At- Nuabazar Hospital Road, PO- Nuabazar, Dist- Balasore,
PIN-756032.
16. Gyana Ranjan Sutar, aged about 37 years, C/o.Narayan Sutar,
At- Chudakuti, PO-Palasa,Via- Dhamnagar, Dist- Bhadrak, PIN-
756117.
17. Sandip Kumar Mohapatra, aged about 35 years, C/o.Baikuntha
Charan Mohapartra, At- Kajipokhari, PO- Barapada, Dist-
Bhadrak, PIN-756113.
18. Malaya Ranjan Sahu, aged about 39 years, S/o.Umakanta Sahu,
At - Erejhatia, PO-Saramara, Via- Randiahat, Dist-Bhadrak, PIN-
756135.
19. Smruti Samal, aged about 37 years, C/o. Surendranath Samal,
Near Mahadeb Temple, At- Jail Road, PO- Ajimabad, Dist-
Balasore, PIN-756001.
W.A. No. 1311 of 2022 Page 2 of 22
20. Jyotismati Nayak, aged about 33 years, C/o. Ananta Prasad
Nayak, At- Kantapal, Near Chudabil, PO- Charampa, Dist-
Bhadrak, PIN-756101.
21. Seshadeb Barik, aged about 43 years, C/o.Haribandhu Barik,
Phase-4, Plot No, Liv 159, DDHB Colony, Bhubaneswar-19.
22. Prabhupada Sahoo, aged about 43 years, C/o.Bishnu Mohan
Sahoo, At/PO- Jayadurga Nagar, Bomikhal, Bhubaneswar, Dist
Khorda.
23. Dipti Ranjan Senapati, aged about 46 years, C/o. Rabindra
Nath Senapati, LV 94, Bhima Tangi Housing Board Colony,
Phase-2, Bhubaneswar, Dist- Khorda, PIN-751002.
24. Sasadhar Behera, aged about 33 years, C/o.Aparti Behera, At-
Hasinpur, PO-Ganijang,Via- Bonth, Dist- Bhadrak, PIN 756114.
25. Santosh Kumar Behera, aged about 39 years, C/o.Kumar
Behera, At- Amalapada, Ward No.3, PO- Talcher Town, Dist-
Angul, PIN-759107.
26. Keshab Chandra Behera, aged about 54 years, C/o.Kumar
Behera, At- Amalapada, Ward No.3, PO- Talcher Town, Dist-
Angul, PIN 759107.
27. Bapuji Nayak, aged about 32 years, C/o.Sarat Chandra Nayak,
At- Panchagachhia, PO-Barapada, Dist- Bhadrak, PIN-756113
28. Mukesh Kumar Behera, aged about 35 years, C/o. Sadasiv
Behera, At- Ankuli Berhampur, Dist- Ganjam.
29. Bijaya Behera, aged about 34 years, C/o.Jayaram Behera,
At/PO- Kukudakhandi, Dist- Ganjam.
30. Soubhagya Behera, aged about 36 years, C/o.Prasanna Behera,
At- Ratan Pur, PO-Rangalbeda, Dist-Deogard, PIN-768119.
W.A. No. 1311 of 2022 Page 3 of 22
31. Debashis Buda, aged about 33 years, C/o. Siba Lala Buda, At -
Kurla, PO-Mangalaspur, Dist-Sundargarh, PIN-770019.
32. Alok Malli, aged about 32 years, C/o. Sashidhar Malli, At-
Aulnabahal, Dist-Sundargarh.
33. Jyoti Ranjan Nayak, aged about 33 years, C/o.Hirendra Nayak,
At/PO- Dharakot, Dist-Ganjam.
34. Himanshu Patel, aged about 45 years, C/o. Maheswar Patel,
At/PO- Raidihi, Via-Zinc Nagar, Dist- Sundargarh, PIN-770021.
35. Raj Kishore Dhada, aged about 34 year, C/o.Birandra Dhada,
At- Bidanga, PO/Via-Baralpokhari, Dist- Bhadrak, PIN-756101.
36. Shiba Sankar Dhal, aged about 33 years, C/o. Sukadeba Dhal,
At - Hasinpur, PO-Ganijang, Via- Bonth, Dist- Bhadrak, PIN
756114.
37. Satya Ranjan Jena, aged about 36 years, C/o.Dhirendra Jena,
At/PO- Aruan, Betada, Dist- Bhadrak, P1N-756168.
38. Akshaya Kumar Behera, aged about 33 years, C/o. Udaynath
Behera, At- Burbuda, PO-Naulipada, Dist- Deogarh, PIN-
768109.
39. Ashis Kumar Mohapatra, aged about 33 years, C/o.Nabaghana
Mohapatra, At/PO-Kurkura, Dist- Bhadrak, PIN-756116.
40. Rajanikanta Malik, aged about 33 years, C/o. Golak Ch. Malik,
At- Bharatpur Karchauk, PO- Kantia, Dist-Kendrapara, PIN
754223.
41. Shiba Sankar Singh, aged about 43 years, C/o.Laxmi Narayan
Singh, At- College Road, PO- Rajbora Sambar, P.S- Pamempur,
Dist-Bargarh.
....Appellants
W.A. No. 1311 of 2022 Page 4 of 22
-Versus-
1. State of Orissa, represented through its Commissioner-cum-
Secretary to Govt., Works Department, At/PO- Bhubaneswar,
District- Khurdha.
2. Chairman, Committee of Chief Engineers, Engineer-in-Chief,
Odisha, Bhubaneswar, Dist-Khurda
3. Secretary, Housing and Urban Development (PH) Department,
AT- Secretariat Building, Bhubaneswar, Dist-Khurdha
4. Secretary, Orissa Staff Selection Commission, At- Barak No.I,
Unit-V, Bhubaneswar- 751054
....Respondents
W.A. No.1237 of 2022
1. Nihar Ranjan Sahoo, aged about 38 years, S/o. Gunanidhi
Sahoo, At-143-Jajbawan Akhadagali, P.O. Buxi Bazar, Dist-
Cuttack.
2. Sangram Keshari Nayak, aged about 40 years, S/o. Narayan
Nayak, At-Gudupangi, P.O./P.S. Malisahi, Dist-Nayagarh.
3. Priyabrata Das, aged about 38 years, S/o. Gajendra Nath Das,
At/P.O. Kandarpur, P.S. Athagarh, Dist-Cuttack.
4. Amitav Mohapatra, aged about 44 years, S/o. Nishikanta
Mohapatra, At/P.O. Dala, P.S. Jajpur Road, Dist-Jajpur.
5. Bhimasena Beura, aged about 39 years, S/o. Banshidhar Beura,
At-Jujhagarh, P.O. Daruthenga, P.S. Bhandaka, Dist-Khurda.
....Appellants
-Versus-
1. State of Orissa, represented through its Commissioner-cum-
Secretary to Govt., Works Department, At/PO- Bhubaneswar,
District- Khurdha.
W.A. No. 1311 of 2022 Page 5 of 22
2. Chairman, Committee of Chief Engineers, Engineer-in-Chief,
Odisha, Bhubaneswar, Dist-Khurda
3. Secretary, Housing and Urban Development (PH) Department,
AT- Secretariat Building, Bhubaneswar, Dist-Khurdha
4. Secretary, Orissa Staff Selection Commission, At- Barak No.I,
Unit-V, Bhubaneswar- 751054
....Respondents
Advocates appeared in these cases:
In W.A. No.1311 of 2022
For the Appellants: Mr. Kishore Kumar Patel, Advocate and
Mr. Sapan Kumar Pal, Advocate
For Respondents: Mr. M. K. Khuntia,
Additional Government Advocate
In W.A. No.1237 of 2022
For the Appellants: Mr. Jayant Kumar Rath, Sr. Advocate
and Mr. D.N. Rath, Advocate
For Respondents: Mr. M. K. Khuntia,
Additional Government Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
26.06.2024 Chakradhari Sharan Singh, CJ.
1. In exercise of power under the proviso to Article 309 of the Constitution of India, the State of Odisha has framed Odisha Diploma W.A. No. 1311 of 2022 Page 6 of 22 Engineers' Service (Methods of Recruitment and Conditions of Service) Rules, 2012 (in short, 'Rules of 2012') which lays down, inter alia, the method of recruitment for the posts in the cadre of Odisha Diploma Engineers' Service. Before the aforesaid Rules of 2012 were framed, the posts of Diploma Engineers' were being filled up from a panel of candidates prepared for the said purpose.
2. The said Rules of 2012, came into force on the date of their publication in the Odisha Gazette i.e. 05.01.2013. It is an admitted fact that by a subsequent notification, the effective date of enforcement of the said Rules of 2012 was modified and extended to 31.03.2014. It is also an admitted fact that as on 31.03.2012 the total number of vacancies in different Departments of the Government was against the post of Diploma Engineers. A requisition was, however, made for filling up of 1869 posts. Based on the said requisition, 1612 posts were filled up from the panel and 257 posts remained vacant.
3. The sole question which has arisen in the present intra-Court appeal for determination is as to whether the State is under obligation to follow the practice of filling up of the posts, which were vacant prior to 31.03.2014 based on the past practice, from the panel so prepared or whether the posts should be filled in accordance with the statutory rules framed under the proviso to Article 309 of the Constitution of India.
4. We have heard Mr. Kishore Kumar Patel, learned counsel appearing on behalf of the appellants and Mr. M.K. Khuntia, learned W.A. No. 1311 of 2022 Page 7 of 22 Additional Government Advocate (AGA) appearing on behalf of the respondents-State of Odisha.
5. The appellants have put to challenge in the present intra- Court appeals a common judgment and order passed by a learned Single Judge of this Court dated 17.08.2022 in WPC (OAC) No.2645 of 2014, WPC (OAC) No.1048 of 2014 and batch of cases. The facts of the case are not at all in dispute. The appellants are the Diploma holders in Engineering in different disciplines. There was a procedure being followed by the Government of Odisha of maintaining a panel of Diploma Engineers for their appointment as Junior Engineers. Based on the said panel, names were sponsored by a Committee of Chief Engineers and Engineers-in-Chief to different departments under the State Government as well as the Public Sector Undertakings. In the meanwhile, the rules as noted above came to be notified regulating the method for recruitment. As has been noted above, the Rules of 2012 had not been made effective till 31.03.2014, exercising power under Rule 19 of 2012 Rules, which reads as under:
"19. Relaxation-- When the Government are of the opinion that it is considered necessary or expedient so to do, in public interest, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules in respect of any class or category of employees in consultation with the Commission"
Admittedly till 31.03.2014, the appointments were made from the panel so prepared of candidates having Diploma qualification.
W.A. No. 1311 of 2022 Page 8 of 226. It is apparent from the records that in accordance with the provisions under the Rules of 2012, the Odisha Public Service Commission (OPSC) issued an advertisement on 04.08.2014 inviting applications for filling up of the posts of Junior Engineers by way of direct recruitment. The said advertisement was challenged by filing OA No. 2645(C) of 2014 along with batch of original applications before the Odisha Administrative Tribunal (in short 'Tribunal), mainly, on the ground that the posts which were vacant prior to coming into force of Rules of 2012 ought to have been filled up from the existing panel of Diploma Engineers. The Tribunal disposed of the said OA No.2645(C) of 2014 and batch, with the following observation as has been noted in the impugned judgment of the learned Single Judge:-
"xxx xxx xxx xxx
8. xxx xxx xxx xxx
21. Accordingly, the grievance of the applicants to quash the impugned advertisement and the statutory rule is not allowed and the O.As are not entertainable and maintainable.
However, keeping in view the fact that the applicants are waiting for long years for appointment, it is desirable that Government as a model employer may take a decision as one time measure and consider to relax the relevant provision under the rule for appointment of the applicants and for that purpose, if necessary, may fix certain quota in future recruitment.
xxx xxx xxx xxx"
W.A. No. 1311 of 2022 Page 9 of 227. The said order of the Tribunal was challenged before this Court by filing writ petitions giving rise to W.P.(C) No.8877 of 2017 and batch. By an order dated 28.02.2019, the order passed by the Tribunal was set aside and the matter was remanded back to the Tribunal for fresh adjudication.
8. During the pendency of the Original Applications on remand before the Tribunal, the Tribunal came to be abolished and, accordingly, the Original Applications stood transferred to this Court and registered as WPC (OAC) No.2645 of 2014 and other similar matters.
9. This is the brief background in which the matters were heard by the learned Single Judge of this Court. It was urged before the learned Single Judge that all the vacancies as on 31.03.2014 were required to be filled up from the panel and the action of the Government in allowing the Commission to go for direct recruitment in accordance with the Rules of 2012 was illegal. The learned Single Judge, however, rejected the said contention, mainly, relying on a recent Supreme Court's decision in case of Anurag Sharma and others v. State of Himachal Pradesh and others; (2023) 3 SCC 773.
10. Mr. Patel, learned counsel appearing on behalf of the appellants has vehemently argued that admittedly as on 31.03.2014, a large number of vacancies of Diploma Engineers were available. The panel was still surviving as on 31.03.2014. He has argued that it is an admitted fact that out of total number of vacancies, i.e. 2773, W.A. No. 1311 of 2022 Page 10 of 22 requisitions were sent for 1869 posts only. Those 1869 posts ought to have been filled up from the panel and till all those number of posts, i.e. 1869 were not filled up from the panel, the State ought not to have proceeded for appointment of Junior Engineers on the basis of direct recruitment in accordance with the Rules of 2012. He has submitted that this is an admitted position that out of 1869 posts for which the requisition was made, only 1612 posts could be filled up and 257 posts still remained vacant. He contends it was obligatory on the part of the State to fill up these at least 257 posts from the panel. He has argued that there is no plausible justification available on record put forth by the State why those 257 posts could not be filled up from the panel. He has heavily relied on a Constitution Bench decision of the Supreme Court in case of Shankarsan Dash v. Union of India, reported in (1991) 3 SCC 47, in support of his contention that though the appellants do not have an indefeasible right to be appointed against the vacant posts, the State could not have refused to fill up the vacancies without any valid reason. He has also argued that the learned Single Judge has not duly appreciated the law laid down by the Supreme Court in case of Anurag Sharma (supra). In support of his submission, he has relied on paragraphs 23 and 29 thereof:
"23. Regardless of its origin, the doctrine of pleasure incorporated under our constitutional scheme is to subserve an important public purpose. In paras 44 and 45 of Tulsiram Patel [Union of India v. Tulsiram Patel, (1985) 3 SCC 398 : 1985 SCC (L&S) 672], this Court has explained the W.A. No. 1311 of 2022 Page 11 of 22 purpose and object of incorporating this principle :
(SCC pp. 442-43) "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, the Railways do not run because of the members of the 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 W.A. No. 1311 of 2022 Page 12 of 22 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 enquiry dispensed with, the government servant concerned 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.
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 W.A. No. 1311 of 2022 Page 13 of 22 policy and in the public interest and are for public good."
(emphasis supplied)
xxx xxx xxx "
"29. The first case which followed Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 :
1983 SCC (L&S) 382] is P. Ganeshwar Rao v. State of A.P. [P. Ganeshwar Rao v. State of A.P., 1988 Supp SCC 740 : 1989 SCC (L&S) 123] The Court was concerned about recruitment to the post of Assistant Engineer governed by the Special Rules. [ A.P. Panchayat Raj Engineering Services (Special) Rules, 1963.] 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 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."
Mr. Patel, learned counsel has also drawn the Court's attention to an order dated 11.10.2018 whereby the State Government relaxed the rule by one time measure in order to give appointment to 63 left out candidates as special case by invoking Rule 19 of the Rules of 2012. He has submitted based on the said order that it is apparent that till 2018, the appointments were made from the said panel.W.A. No. 1311 of 2022 Page 14 of 22
11. Mr. Khuntia, learned AGA, representing the State of Odisha, on the other hand, has submitted that only because the names of these appellants were there in the panel prepared for filling up of the posts of Junior Engineers/Diploma Engineers, they did not have any indefeasible right to be appointed against the vacant posts. He has further argued that there is valid reason why those 257 posts were not filled up from the panel. Referring to the specific averments made in the counter affidavit, he has submitted that those 257 posts could not be filled up as those are reserved for the Scheduled Tribe (ST) and the Scheduled Caste (SC) categories and as the ST and SC eligible candidates were not available, therefore, the said posts could not be filled up. He has, accordingly, submitted that the Supreme Court's decision in case of Shankarsan Dash (supra), has no application in the present set of facts. He has also argued that the Supreme Court's decision in case of Anurag Sharma (supra), has rightly relied on by learned Single Judge wherein it has been categorically held that the posts vacant prior to coming into force of the Rules of 2012 are required to be filled up in accordance with the Rules framed subsequently.
12. Mr. Khuntia, learned AGA appearing on behalf of the respondent-State of Odisha refuting the last contention raised by Mr. Patel, learned counsel for the appellants that appointments were made from the said panel upto 2018, has submitted that the said order was issued in the light of an order passed by the Tribunal to fill up the posts W.A. No. 1311 of 2022 Page 15 of 22 out of the unfilled 257 posts, which were reserved for SC and ST candidates. He contends that all the 63 candidates, who were permitted to be appointed to the posts based on the panel, were ST candidates.
13. After carefully hearing the learned counsel and going through the records and the decision of the Supreme Court, we are not convinced with the submission advanced on behalf of the appellants that the State was under obligation to fill up all the vacancies existing prior to 31.03.2014 from the panel prepared by the State Government for the said purpose. This is for two reasons. Firstly, only because of inclusion of the names of the appellants in the panel, they did not acquire any indefeasible right to be appointed against the vacancies which were existing. Secondly, it cannot be said that based on the present set of facts that the State without any valid reason decided not to fill up the said 257 posts. There is some explanation which has been tendered as to why those 257 posts could not be filled up and this appears to be justifiable. The appellants do not belong to ST or SC category. So they could not claim their appointment against those 257 posts.
14. In our considered opinion, the decision rendered in case of Shankarsan Dash (supra), does not favour the case of the appellants at all. It is noted that in case of Shankarsan Dash (supra), the Constitution Bench, in no uncertain terms, has held that the State is under no legal duty to fill up any vacancies. The relevant portion of the said decision rendered in case of Shankarsan Dash (supra) is quoted herein below:W.A. No. 1311 of 2022 Page 16 of 22
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899."
15. In the recent decision in case of Anurag Sharma (supra), the Supreme Court, after having dealt with a catena of decisions on the point, has concluded in paragraphs 82 to 85 as under:
"Analysis
82. A review of the fifteen cases that have distinguished Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] would demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah [Y.V. W.A. No. 1311 of 2022 Page 17 of 22 Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 :
1983 SCC (L&S) 382] . The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] are as under:
82.1. 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 case [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] must be understood in the context of the rules involved therein. [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, para 26 : (2011) 2 SCC (L&S) 175; Union of India v. Krishna Kumar, (2019) 4 SCC 319, para 10 : (2019) 1 SCC (L&S) 655] 82.2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existing 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 candidates. [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, para 26 :
(2011) 2 SCC (L&S) 175; Union of India v. Krishna Kumar, (2019) 4 SCC 319, para 10 : (2019) 1 SCC (L&S) 655] 82.3. 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 policy decision taken by the Government. [K. Ramulu v. S. Suryaprakash Rao, (1997) 3 SCC 59, paras 12 & 13 : 1997 SCC (L&S) 625; Shyama Charan Dash v. State of Orissa, (2003) 4 SCC 218, para 9 : 2003 SCC (L&S) 449; State of W.A. No. 1311 of 2022 Page 18 of 22 Punjab v. Arun Kumar Aggarwal, (2007) 10 SCC 402, para 38 : (2008) 2 SCC (L&S) 377; Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, para 28 :
(2011) 2 SCC (L&S) 175] 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. [G. Venkateshwara Rao v. Union of India, (1999) 8 SCC 455, para 4 : 2000 SCC (L&S) 72] 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. [Rajasthan Public Service Commission v. Chanan Ram, (1998) 4 SCC 202, para 15 : 1998 SCC (L&S) 1075; K. Ramulu v. S. Suryaprakash Rao, (1997) 3 SCC 59, para 15 : 1997 SCC (L&S) 625] 82.4. The principle in Rangaiah [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately. [Delhi Judicial Services Assn. v. Delhi High Court, (2001) 5 SCC 145, para 5 : 2001 SCC (L&S) 776] 82.5. 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. [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, para 25 :
(2011) 2 SCC (L&S) 175]
83. The above-referred observations made in the fifteen decisions that have distinguished Rangaiah case [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] demonstrate that the wide principle enunciated therein is substantially watered-down. Almost all the decisions that distinguished Rangaiah [Y.V. Rangaiah v. J.
W.A. No. 1311 of 2022 Page 19 of 22Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] hold that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of law that existed on the date when they arose. This only implies that decision in Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] is confined to the facts of that case.
84. The decision in Deepak Agarwal [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725 : (2011) 2 SCC (L&S) 175] is a complete departure from the principle in Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] inasmuch 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 [Union of India v. Krishna Kumar, (2019) 4 SCC 319 : (2019) 1 SCC (L&S) 655] . In fact, in Krishna Kumar [Union of India v. Krishna Kumar, (2019) 4 SCC 319 :
(2019) 1 SCC (L&S) 655] 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 takes place".
85. The consistent findings in these fifteen decisions that Rangaiah case [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] 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 on which they arose, compels us to conclude that the decision in Rangaiah [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 :
1983 SCC (L&S) 382] is impliedly overruled.W.A. No. 1311 of 2022 Page 20 of 22
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:
85.1. The statement in Y.V. Rangaiah v. J. Sreenivasa Rao [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] that, "the vacancies which occurred prior to the amended Rules would 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.
85.2. The rights and obligations of persons serving the Union and the States are to be sourced from the rules governing the services."
16. The submission made on behalf of the appellants finds a direct answer in the Supreme Court's decision in case of Anurag Sharma (supra) wherein the Supreme Court unequivocally held that the law as stated in Y.V. Rangaiah v. J. Sreenivasa Rao; reported in (1983) 3 SCC 284 to the effect that "the vacancies which occurred prior to the amended rules would be governed by the rules and not by the amended rules, does not reflect the correct proposition of law governing the service under the Union and the State under Part XIV of the Constitution of India". The proposition of law laid down in case of Y.V. Rangaiah v. J. Sreenivasa Rao (supra) has thus been specifically overruled by the Supreme Court in case of Anurag Sharma (supra).W.A. No. 1311 of 2022 Page 21 of 22
17. We are also of the view that the appellants cannot claim parity with those 63 candidates, who were subsequently appointed from the panel as those 63 candidates belonged to ST category and who came to be appointed in the light of certain orders passed by the Tribunal.
18. Situated thus, we do not find any legal infirmity in the impugned judgment rendered by the learned Single Judge requiring this Court's interference in the present intra-Court appeals.
19. These appeals are, accordingly, dismissed.
(Chakradhari Sharan Singh) Chief Justice (Savitri Ratho) Judge SK Jena/Secy.
Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: AuthenticationLocation: High Court of Orissa, Cuttack.
Date: 09-Jul-2024 13:19:18 W.A. No. 1311 of 2022 Page 22 of 22