Employee Has No Vested Right To Compel Government To Fill Vacancies Through Promotion After Cadre Restructuring: Supreme Court
The Court held that an employee possesses only a limited right to be considered for promotion and that the Government, particularly during cadre restructuring and change in recruitment policy, cannot be compelled to fill vacancies by promotion.
Justice Dipankar Datta, Justice Augustine George Masih, Supreme Court
The Supreme Court has reiterated that employees do not possess a vested right or legitimate expectation to be promoted and that the Government, as appointing authority, is entitled to decide not to fill vacancies by promotion, especially where there is cadre restructuring and a change in recruitment policy.
The Court further held that vacancies need not necessarily be filled under the rules existing on the date when such vacancies arose and reiterated that the applicable rules are those prevailing on the date consideration for promotion actually takes place.
The Court was hearing appeals filed by the State of Odisha challenging a judgment of the Orissa High Court directing the convening of a Departmental Promotion Committee for considering the respondents for appointment to the post of Assistant Regional Transport Officer under executive instructions prevailing before the Odisha Transport Service (Method of Recruitment and Conditions of Service) Rules, 2021.
A Bench of Justice Dipankar Datta and Justice Augustine George Masih, while refering to the Apex Court’s previous decision in State of H.P. v. Raj Kumar (2023), observed: “This Court has observed that 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”.
Advocates Akshay Amritanshu, AOR, and Sarthak Srivastava appeared for the State of Odisha. Advocates Dhananjai Jain, AOR, and Shubhranshu Padhi, AOR, appeared for the respondents.
Background
The dispute concerned the post of Assistant Regional Transport Officer in Odisha. Before the framing of statutory rules, appointments to the post were governed by executive instructions issued in 1981, under which Senior Assistants with five years’ service were eligible for selection to the post.
The respondents were initially appointed as Junior Assistants and subsequently promoted to Senior Assistants. Following cadre restructuring in 2019, the post of Senior Assistant was redesignated as Assistant Section Officer.
The respondents sought promotion to the post of Assistant Regional Transport Officer based on the earlier executive instructions. Recommendations were made for convening a Departmental Promotion Committee; however, the State Government rejected the proposal because the post was no longer part of the promotional hierarchy and appointments were to be regulated under the new recruitment framework.
The High Court allowed the writ petitions and directed the convening of a DPC for considering the respondents’ cases. The Division Bench dismissed the State’s intra-court appeals, following which the State approached the Supreme Court.
Court’s Observation
The Supreme Court found that the High Court had failed to properly consider the binding effect of the three-Judge Bench judgment in State of H.P. v. Raj Kumar (2023), which had expressly overruled the earlier decision in Y.V. Rangaiah v. J. Sreenivasa Rao (1983).
The Bench observed that Raj Kumar settled the legal position that there is “no rule of universal application” requiring vacancies to be filled under rules existing on the date such vacancies arose.
Referring extensively to Raj Kumar (2023), the Court reiterated: “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.”
The Court further held that the Government is entitled to take a conscious policy decision not to fill vacancies under the earlier regime where cadre restructuring or a change in recruitment structure is introduced.
The Bench observed that the restructuring of the Odisha Transport Service and framing of the 2021 Rules reflected a conscious policy decision to alter the mode of recruitment to the post of Assistant Regional Transport Officer by introducing recruitment through competitive examination conducted by the Odisha Public Service Commission.
The Court held that the respondents could not insist upon consideration under the earlier executive instructions once the statutory rules framed under Article 309 of the Constitution came into force.
The Bench observed that the executive instructions themselves clearly stated that they were intended to operate only as an interim arrangement pending finalisation of cadre rules.
The Court observed: “Paragraph 4 makes it clear as crystal that the instructions were put in force as a pro-tem arrangement till the finalisation of the cadre rules, which were brought in force by way of the 2021 Rules.”
The Supreme Court further held that statutory rules framed under Article 309 supersede inconsistent executive instructions and relied upon Union of India v. Somasundaram Viswanath (1989) for the proposition that executive instructions cannot prevail over rules framed under Article 309.
The Court also rejected the contention that the recommendation by the Transport Commissioner for convening a DPC created any enforceable right in favour of the respondents. The Bench held that neither appointments nor even the constitution of the DPC had taken place before the enforcement of the 2021 Rules.
The Court clarified that the post in question was a “selection post” and not a regular promotional post. Referring to Sant Ram Sharma v. State of Rajasthan (1967), the Bench reiterated that mere seniority or inclusion in a gradation list does not confer any automatic right to appointment to selection posts.
The Bench concluded that "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, ...if the Government deemed it fit to change the method of selection, it was within its power, authority and competence and unless the changed policy is proved to be arbitrary".
Conclusion
The Supreme Court held that the High Court erred in directing the convening of a DPC and consideration of the respondents under the earlier executive instructions despite subsequent cadre restructuring and enforcement of statutory recruitment rules.
The Court held that the respondents had no vested right or legitimate expectation to promotion and that the Government could not be compelled to fill vacancies by promotion where it had consciously altered the recruitment framework through statutory rules.
Accordingly, the appeals filed by the State of Odisha were allowed, and the judgments of the High Court were set aside.
Cause Title: State of Odisha & Ors. v. Sreepati Ranjan Dash (Neutral Citation: 2026 INSC 505)