The Supreme Court has ruled as recently as on January 14, 2019, quite unambiguously, that the right for promotion is to be considered in accordance with the rules as they exist when the exercise for promotion is carried out.
Justice Dhananjay Y. Chandrachud and Justice Hemant Gupta have pointed out in the judgment of the case – Union of India & Others v. Krishna Kumar & Others, “The entire basis of the impugned decision of the Manipur 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”. There is no such rule of absolute or universal application.
The appeal arose from an order of a Single Judge of the Manipur HC, passed by him on December 10, 2013.The HC had issued a direction to the appellants to consider the case of the respondents (the petitioners before the HC) if they are eligible and within the zone of consideration for promotion to the post of Naib Subedar against vacancies which occurred prior to the changes that were made in the structure of Assam Rifles in 2011 and before the enforcement of the Recruitment Rules for Warrant Officer in 2012. The HC’s direction was for carrying out such an exercise in respect of other Havildars against vacancies which had occurred prior to 2011.
The respondents were appointed between 1982 and 1989 on the post of Rifleman in Assam Rifles. At the relevant point of time, they were working as Havildars. Under the rules, as those existed earlier, the promotional avenue for a Havildar lay to the post of Naib Subedar.
Following the recommendations of the 6th Pay Commission, the Union Home Ministry conveyed its sanction on March 3, 2011 for an intermediate rank of Warrant Officer by the abolition/ upgradation of one post of Havildar.
On June 16, 2012, the Assam Rifles Warrant Officer (General Duty) Group ‘C’ Combatised Posts Recruitment Rules, 2012 were notified. In terms of these Rules, the post of Warrant Officer was created which was required to be filled up by promotion amongst the members of the Assam Rifles holding the rank of Havildar (General Duty) with five years’ regular service in the grade and possessing the requisite educational qualifications.
On August 13, 2012, promotion orders were issued for Havildars to the newly created post of Warrant Officer. The respondents were promoted as Warrant Officers.
Writ proceedings were instituted before the HC with a grievance that the promotion from the post of Havildar was to a lower and inferior rank of Warrant Officer, whereas the promotion ought to have been made to the rank of Naik Subedar.
The HC allowed the writ petition by holding that despite the changes, which were brought about in the structure of the Assam Rifles in 2011, rights which accrued prior to the enforcement of the changed structure in favour of Havildars for being considered for promotion as Naik Subedars , were required to be enforced. The HC’s observation in this regard was:
“It is now well settled that vacancies occurring prior to amendment or creation of Recruitment Rules, are to be governed by the Rules, which existed at the time of occurrence of the vacancy.”
On this basis, the HC directed the appellants to consider the case of the respondents and other Havildars for promotion to the post of Naib Subedars against vacancies which had occurred prior to the changes which were carried out in 2011 and before the enforcement of the Recruitment Rules ,2012.Against this judgment the Union of India filed appeals.
At the very outset, the Supreme Court has noted that it is well-settled that there is no vested right to promotion, but a right to be considered for promotion in accordance with the Rules, which prevail on the date on which consideration for promotion takes place. The Apex-Court has held that there is no rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose.
The Supreme Court’s decision in the case- Y.V. Rangaiah v. Sreenivasa Rao – (1983) 3 SCC 284 has been construed in subsequent decisions as a case where the applicable Rules required the process of promotion or selection to be completed within a stipulated time frame. Hence, it has been held in H.S. Grewal v. Union of India –(1997) 11 SCC 758 that the creation of an intermediate post would not amount to an interference with the vested right to promotion.
In the decision of the case – Deepak Agarwal v. State of Uttar Pradesh – (2011) 6 SCC 725, the SC has observed that a candidate has right to be considered in the light of the existing Rules, which implies the ‘rules in force’ on the date the consideration took place.
Recently, in the decision of the case – State of Tripura v. Nikhil Ranjan Chakraborty- (2017) 3 SCC 646, the Supreme Court has held that the law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely , “rulers in force on the date” of the consideration and there is no rule of absolute application that vacancies must invariably filled in by the law existing on the date when they arose.
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. This intermediate post was created as a result of the restructuring exercise.
In the Supreme Court’s view, the HC was in error in postulating that vacancies, which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules, which existed at the time of occurrence of the vacancies.
Finding merit in the appeal, the Supreme Court has allowed it and set aside the impugned judgment and order of the HC.
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