# STATE OF HIMACHAL PRADESH & ORS v. RAJ KUMAR & ORS

- **Citation:** [2022] 15 S.C.R. 847
- **Court:** Supreme Court of India
- **Decided:** 2022-05-20
- **Case number:** Civil Appeal No. 9746 of 2011
- **Bench:** Uday Umesh Lalit, S. Ravindra Bhat, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-himachal-pradesh-ors-v-raj-kumar-ors-35498
- **Pages:** 52

## Headnote

Service Law: Himachal Pradesh Recruitment and Promotion
Rules, 1966 - H.P. Labour and Employment Department, Labour
Officers, Class-II (Gazetted) Ministerial Services R & P Rules, 2006
- Conditions of service of public servant - Vacancies arose prior to
the promulgation of the new rules - To be filled only as per the old
rules or as per the amended rules - Five post of Labour Officer
governed by the 1966 Rules, to be filled by promotion - On
20.07.2006, seven additional posts sanctioned for labour officers,
and total posts increased from 5 to 12 - Subsequently, the 1966
Rules amended - Under the New Rules of 2006, recruitment to the
post of Labour Officer is to be made by promotion as well as direct
recruitment in the ratio of 75 per cent and 25 per cent respectively
- Out of the total number of 12 posts, the promotional posts increased
from 5 to 9 (being 75 per cent) and direct recruitment posts came to
3 (being 25 per cent) - Respondent no. 1 to 3-Labour Inspector
challenged the filling up of 25 percent of the posts by direct
recruitment on the ground that the vacancies arose before the
promulgation of the New Rules and thus, all the vacancies must be
filled only by promotion - On direction by the tribunal, the State
govt. considered the grievance and rejected the same - Challenged
again before the tribunal - During the pendency, State government
called up for applications for filling up the 3 posts of Labour Officers
under the quota of direct recruitment - Respondent no. 4 to 6
appointed to the post - Appointments challenged by the respondent
no.1 to 3 - Division Bench allowed the petition relying on Rangaiah's
case - On appeal, held : Rangaiah's case 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
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[2022] 15 S.C.R.
which they arose - Statement in Rangaiah 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, thus, it is overruled - There is no right for an employee
outside the rules governing the services - Services under the State
are in the nature of a status, a hallmark of which is the need of the
State to unilaterally alter the rules to subserve the public interest -
2006 Rules, governing the services of the respondents came into
force immediately after they were notified - There is no provision in
the said rules to enable the respondents to be considered as per the
1966 Rules - Furthermore, there is no other right that respondents
no. 1 to 3 can claim for such consideration - Plea of the Government
based on its policy decision to restructure the cadre by creating
additional posts and also providing for direct recruitment by
amending the rules is accepted - Thus, the judgment of High Court
is set aside - Art. 309, 310, 311 - Constitution of India.
Constitution of India : Art. 310 - Doctrine of pleasure -
Purpose/Object - Stated.
Allowing the appeals, the Court
HELD: 1.1 A review of the fifteen cases that have
distinguished Rangaiah's case would demonstrate that this Court
has been consistently carving out exceptions to the broad
proposition formulated in Rangaiah. The findings in these
judgments, that have a direct bearing on the proposition
formulated by Rangaiah are that 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's
case must be understood in the context of the rules involved
therein; that it is now a settled proposition of law that a candidate
has a right to be considered in the light of the existed rules,
which implies the "rule in force" as on the date consideration
takes place; that the right to be consid

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 [2022] 15 S.C.R. 847
847
STATE OF HIMACHAL PRADESH & ORS.
v.
RAJ KUMAR & ORS.
(Civil Appeal No. 9746 of 2011)
MAY 20, 2022
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Service Law: Himachal Pradesh Recruitment and Promotion
Rules, 1966 - H.P. Labour and Employment Department, Labour
Officers, Class-II (Gazetted) Ministerial Services R & P Rules, 2006
- Conditions of service of public servant - Vacancies arose prior to
the promulgation of the new rules - To be filled only as per the old
rules or as per the amended rules - Five post of Labour Officer
governed by the 1966 Rules, to be filled by promotion - On
20.07.2006, seven additional posts sanctioned for labour officers,
and total posts increased from 5 to 12 - Subsequently, the 1966
Rules amended - Under the New Rules of 2006, recruitment to the
post of Labour Officer is to be made by promotion as well as direct
recruitment in the ratio of 75 per cent and 25 per cent respectively
- Out of the total number of 12 posts, the promotional posts increased
from 5 to 9 (being 75 per cent) and direct recruitment posts came to
3 (being 25 per cent) - Respondent no. 1 to 3-Labour Inspector
challenged the filling up of 25 percent of the posts by direct
recruitment on the ground that the vacancies arose before the
promulgation of the New Rules and thus, all the vacancies must be
filled only by promotion - On direction by the tribunal, the State
govt. considered the grievance and rejected the same - Challenged
again before the tribunal - During the pendency, State government
called up for applications for filling up the 3 posts of Labour Officers
under the quota of direct recruitment - Respondent no. 4 to 6
appointed to the post - Appointments challenged by the respondent
no.1 to 3 - Division Bench allowed the petition relying on Rangaiah's
case - On appeal, held : Rangaiah's case 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
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which they arose - Statement in Rangaiah 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, thus, it is overruled - There is no right for an employee
outside the rules governing the services - Services under the State
are in the nature of a status, a hallmark of which is the need of the
State to unilaterally alter the rules to subserve the public interest -
2006 Rules, governing the services of the respondents came into
force immediately after they were notified - There is no provision in
the said rules to enable the respondents to be considered as per the
1966 Rules - Furthermore, there is no other right that respondents
no. 1 to 3 can claim for such consideration - Plea of the Government
based on its policy decision to restructure the cadre by creating
additional posts and also providing for direct recruitment by
amending the rules is accepted - Thus, the judgment of High Court
is set aside - Art. 309, 310, 311 - Constitution of India.
Constitution of India : Art. 310 - Doctrine of pleasure -
Purpose/Object - Stated.
Allowing the appeals, the Court
HELD: 1.1 A review of the fifteen cases that have
distinguished Rangaiah's case would demonstrate that this Court
has been consistently carving out exceptions to the broad
proposition formulated in Rangaiah. The findings in these
judgments, that have a direct bearing on the proposition
formulated by Rangaiah are that 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's
case must be understood in the context of the rules involved
therein; that it is now a settled proposition of law that a candidate
has a right to be considered in the light of the existed rules,
which implies the "rule in force" as on the date consideration
takes place; that the right to be considered for promotion occurs
on the date of consideration of the eligible candidates; 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
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in view of the policy decision taken by the Government. 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. 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. The principle
in Rangaiah need not be applied merely because posts were
created, as it is not obligatory for the appointing authority to fill
up the posts immediately. 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. [Para 36][895-F-G; 896-A-D]
1.2 The said observations made in the fifteen decisions that
have distinguished Rangaiah's case demonstrate that the wide
principle enunciated therein is substantially watered-down. Almost
all the decisions that distinguished Rangaiah 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 is
confined to the facts of that case. [Para 37.1][896-E-F]
1.3 The consistent findings in these fifteen decisions that
Rangaiah's case 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 which
they arose, compels the Court to conclude that the decision in
Rangaiah is impliedly overruled. 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. For clarity and certainty, it is, therefore,
necessary to hold that the statement in Y.V. Rangaiah v. J.
Sreenivasa Rao 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; and that the
rights and obligations of persons serving the Union and the States
STATE OF HIMACHAL PRADESH & ORS. v. RAJ KUMAR
& ORS.
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[2022] 15 S.C.R.
are to be sourced from the rules governing the services. [Para
37.3][897-C-F]
Y. V. Rangaiah v. J. Sreenivasa Rao (1983) 3 SCC 284
- Overruled.
1.4 On facts, the Court noticed that the High Court
proceeded on the premise that the vacancies occurring before
the amendment of the Rules on 25.11.2006 must be governed by
the 1966 Rules. The decision of the High Court took within its
sweep even the 7 new posts of Labour Officers that were
sanctioned by an inter-departmental letter dated 20.07.2006,
which included even the 3 posts allocated for direct recruitment.
The direction of the High Court to encompass even the 3 posts
allocated for direct recruitment was on the ground that the posts
were sanctioned on 20.07.2006, which is prior to the amendment
of the Rules on 25.11.2006. [Para 38.1][897-F-H]
1.5 There is no right for an employee outside the rules
governing the services. That the services under the State are in
the nature of a status, a hallmark of which is the need of the State
to unilaterally alter the rules to subserve the public interest. The
2006 rules, governing the services of the Respondents came into
force immediately after they were notified. There is no provision
in the said rules to enable the Respondents to be considered as
per the 1966 Rules. The matter must end here. There is no other
right that Respondents no.1 to 3 can claim for such
consideration.[Para 38.2][898-A-C]
Union of India v.Tulsiram Patel (1985) 3SCC 398 :
[1985] 2 Suppl. SCR 131; Roshan Lal Tandon v. Union
of India (1968) 1 SCR 185 - Followed.
1.6 The alternative plea of the Government based on its
policy decision to restructure the cadre by creating additional
posts and also providing for direct recruitment by amending the
rules, as a justification for not filling up the vacancies that arose
prior to the amendment is fully supported by the decisions of this
Court. [Para 39.1][898-C-D]
Dr. K. Ramulu & Anr v. Dr. S Suryaprakash Rao (1997)
3 SCC 59 : [1997] 1 SCR 287; Rajasthan Public
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Service Commissionv. Chanan Ram (1998) 4 SCC 202
: [1998] 1 SCR 1099; G. Venkateshwara Rao v. Union
of India (1999) 8 SCC 455; Shyama Charan Dash v.
Stateof Orissa (2003) 4 SCC 218 : [2003] 2 SCR 899;
Stateof Punjab v. Arun Kumar Aggarwal (2007) 10 SCC
402 : [2007] 6 SCR 8; Deepak Agarwal v. State of U.P
(2011) 6 SCC 725 : [2011] 4 SCR 149; Stateof Tripura
v. Nikhil Ranjan Chakraborty (2017) 3 SCC 646; State
of Orissa v. Dhirendra Sundar Das (2019) 6 SCC 270
: [2019] 7 SCR 197; Union of India v. Krishna Kumar
(2019) 4 SCC 319 : [2019] 1 SCR 982; Rajasthan State
Sports Council v. Uma Dadhich (2019) 4 SCC 316 :
[2019] 1 SCR 585 - relied on.
1.7 The material placed on record shows that the additional
posts of Labour Officers are created on 20.07.2006 and
immediately thereafter the 12 labour zones were created. This is
followed by amendment to the Rules with effect from on 25.11.2006
restructuring the cadre. The facts fully justify the alternative
submission made by the State and the Court has no hesitation in
accepting the said submission. Thus, the judgment of the High
Court dated 28.12.2009 is set aside. [Paras 39.2 and 40][898-DE]
D. Raghuv. R. Basaveswarudu 2020 SCC Online 124;
B. P. Singhal v. Union of India (2010) 6 SCC 331;
Union of India v. Arun Kumar Roy (1986) 1 SCC 677;
Narayana v. Purushotham (2008) 5 SCC 416 : [2008]
6 SCR 1055; Brij Lal Mohan v. Union of India (2012)
6 SCC 502 : [2012] 5 SCR 305; Syed Khalid Rizivi V
Union of India 1993 Supp (3) SCC 575 : [1992] 3
Suppl. SCR 180; Hardev Singh v Union of India
(2011) 10 SCC 121; P. Ganeshwar Rao v. State of A.P.
(1988) Supp SCC 740 : [1988] Suppl. SCR 805; N. T.
Devin Katti v. Karnataka Public Service Commission
(1990) 3 SCC 157; A. A. Calton v. Director of
Education and Anr (1983) 3 SCC 33; P. Mahendran
and Ors v. State of Karnataka (1990) 1 SCC 411 :
[1989] 2 Suppl. SCR 385; State of Rajasthan v. R.
Dayal (1997) 10 SCC 419 : [1997] 2 SCR 108; B. L.
STATE OF HIMACHAL PRADESH & ORS. v. RAJ KUMAR
& ORS.
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Gupta v. M.C.D (1998) 9 SCC 223; Arjun Singh
Rathore v. B.N. Chaturvedi (2007) 11 SCC 605 : [2007]
11 SCR 320; Stateof Bihar v. Mithilesh Kumar (2010)
13 SCC 467 : [2010] 10 SCR 161; Kulwant Singh v.
Daya Ram (2015) 3 SCC 177 : [2014] 11 SCR 1053;
Richa Mishra v. Stateof Chhattisgarh (2016) 4 SCC 179
: [2016] 1 SCR 316; Union of India v. S.S. Uppal
(1996)2 SCC 168 : [1996] 1 SCR 230; Shankarshan
Dash v. Union of India (1991) 3 SCC 47 : [1991] 2
SCR 567; State Bank of India v. Kashinath Kher (1996)
8 SCC 762; Delhi Judicial Services Assn. v. Delhi High
Court (2001) 5 SCC 145 : [2001] (3) SCR 314; M.I.
Kunjukunju v. Stateof Kerala (2015)11 SCC 440; D.
Raghuv. R. Basaveswarudu (2020) 18 SCC 1 - referred
to.
'Law Relating to Public Services', Samaraditya Pal, 3rd
Edition, Lexis Nexis, 2011 Para 7.1 - referred to.
Case Law Reference
[1997] 1 SCR 287
relied on
Para 3.2
[2011] 4 SCR 149
relied on
Para 3.2
[2019] 1 SCR 982
relied on
Para 3.2
(2010) 6 SCC 331
referred to
Para 8
(1986) 1 SCC 677
referred to
Para 10
[2008] 6 SCR 1055
referred to
Para 10
[2012] 5 SCR 305
referred to
Para 10
[1992] 3 Suppl. SCR 180
referred to
Para 10(vi)
(2011) 10 SCC 121
referred to
Para 10(vi)
[1998] 1 SCR 1099
relied on
Para 10(vii)
[1988] Suppl. SCR 805
referred to
Para 11
(1990) 3 SCC157
referred to
Para 13.1
(1983) 3 SCC33
referred to
Para 13.1
[1989] 2 Suppl. SCR 385
referred to
Para 13.1
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[1997] 2 SCR 108
referred to
Para 14
[1998] 9 SCC 223
referred to
Para 15.1
[2007] 11 SCR 320
referred to
Para 16.1
[2010] 10 SCR 161
referred to
Para 17.1
[2014] 11 SCR 1053
referred to
Para 18
[2016] 1 SCR 316
referred to
Para 19.1
[1996] 1 SCR 230
referred to
Para 21
[1991] 2 SCR 567
referred to
Para 21
(1996) 8 SCC 762
referred to
Para 22
(1999) 8 SCC 455
relied on
Para 25.1
[2001] 3 SCR 314
referred to
Para 26.1
[2003] 2 SCR 899
relied on
Para 27.1
[2007] 6 SCR 8
relied on
Para 28.1
(2015) 11 SCC 440
referred to
Para 30.1
(2017) 3 SCC 646
relied on
Para 31.1
[2019] 7 SCR 197
relied on
Para 33.1
[2019] 1 SCR 585
relied on
Para 34.1
(2020) 18 SCC 1
referred to
Para 35
(1983) 3 SCC 284
overruled
Para 37.3
[1985] 2 Suppl. SCR 131
followed
Para 38.2
[1968] 1 SCR 185
followed
Para 38.2
CIVIL APPELLATE JURISDICTION : Civil Appeal No.9746
of 2011.
From the Judgment and Order dated 28.12.2009 of the High Court
of Himachal Pradesh at Shimla in Civil Writ Petition No.3028 of 2008.
With
Civil Appeal No.9747 of 2011.
Abhinav Mukerji, AAG, P. S. Patwalia, Ms. Aprajita Singh,
Ravindra Kumar Raizada, Sr. Advs., Mrs. Bihu Sharma, Ms. Pratishtha
STATE OF HIMACHAL PRADESH & ORS. v. RAJ KUMAR
& ORS.
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Vij, Akshay C. Shrivastava, Vishal Sharma, Prasanjit Keswani, Mahesh
Kumar, Nikhilesh Kumar, Ms. Devika Khanna, Mrs. V. D. Khanna,
Vmz Chambers, Ms. Divya Roy, Akshay Amritanshu, Kartikey Singh,
Ashutosh Jain, Ankit Kumar Lal, Varinder Kumar Sharma, Umang
Shankar, Madhup Singhal, Nirmal Singh, Ramjee Pandey, Advs. for the
Appellants.
The Judgment of the Court was delivered by
PAMIDIGHANTAM SRI NARASIMHA, J.
1.1 These appeals arise out of the decision of the High Court of
Himachal Pradesh allowing the writ petition and directing the State to
consider the case of the writ petitioners, Respondents no. 1 to 3 herein,
for promotion under Rules that existed when the vacancies arose and
not as per the subsequently amended rules. These directions were based
on the decision of this Court in the case of Y.V. Rangaiah v. J. Sreenivasa
Rao1. As we noticed a number of decisions of this Court that have
followed Rangaiah, and far more decisions that have distinguished it,
we had to examine the issue afresh. The question is whether
appointments to the public posts that fell vacant prior to the amendment
of the Rules would be governed by the old Rules or the new Rules.
After examining the principle in the context of the constitutional position
of services under the State, and having reviewed the decisions that
have followed or distinguished Rangaiah in that perspective, we have
formulated the legal principles that should govern services under the
State. Applying the said principles, we have held that the broad proposition
formulated in Rangaiah does not reflect the correct constitutional position.
We have thus allowed the appeals following the principles that we have
laid down.
1.2 We will first refer to the facts leading to the present
controversy.
Facts:
1.3 The Himachal Pradesh Recruitment and Promotion Rules,
19662 dated 01.03.1966 made in exercise of the powers under Article
309 of the Constitution govern the post of Labour Officer. There were5
posts of Labour Officers and these were to filled by promotion from (i)
1 Y.V. Rangaiah v. J. Sreenivasa Rao (1983) 3 SCC 284, hereinafter referred to as
'Rangaiah'.
2 hereinafter referred to as the '1966 rules'.
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factory Inspectors, (ii) labour inspectors and (iii) sectt.
superintendents, being the feeder category. On 20.07.2006, Secretary,
Labour and Employment Department addressed a letter to the Labour
Commissioner intimating sanction for creation of additional posts in the
department which inter alia included 7 more posts for Labour Officers.
As a consequence of the said decision, the total posts for Labour Officers
increased from 5 to 12. At this point in time Respondents No. 1 to 3
were working as Labour Inspectors in the service of the State.
1.4 Within four months from the sanction of the additional posts,
the 1966 Rules came to be amended on 25.11.2006. Under the New
Rules called the H.P. Labour and Employment Department, Labour
Officers, Class-II (Gazetted) Ministerial Services R & P Rules, 20063,
recruitment to the post of Labour Officer is to be made by promotion as
well as direct recruitment in the ratio of 75 per cent and 25 per cent
respectively. The effect of the New Rules coupled with the 7 new posts
for Labour Officers is that, from out of the total number of 12 posts of
Labour Officers, the promotional posts increased from 5 to 9 (being 75
per cent)and direct recruitment posts came to 3 (being 25 per
cent).Immediately thereafter, the Government issued a notification
creating 12 Labour zones in the State.
1.5 It is in the above-referred background, that Respondents No.
1 to 3 approached the Administrative Tribunal challenging the proposed
action of the State Government in filling up 25 per cent of the posts of
Labour Officers by direct recruitment. They contended that the vacancies
arose in July 2006, which is before the promulgation of the New Rules
and therefore all the vacancies must be filled only by promotion. By its
order dated 24.01.2007, the Tribunal directed the State Government to
consider the grievance raised in the Original Application as if it is a
representation to it. The representation was considered and rejected by
the Government on 27.06.2007. Challenging the rejection, the second
Original Application was filed by the Respondents before the State
Administrative Tribunal.
1.6 While the matter was pending before the Tribunal, the State
Government proceeded further and issued an advertisement through the
H.P. Public Service Commission, calling for applications for filling up the
3 posts of Labour Officers under the quota of direct recruitment. The
Public Service Commission completed the recruitment process and
3 hereinafter referred to as 'the New Rules'.
STATE OF HIMACHAL PRADESH & ORS. v. RAJ KUMAR
& ORS. [PAMIDIGHANTAM SRI NARASIMHA, J.]
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[2022] 15 S.C.R.
recommended the names of Respondents No. 4 to 6.The recommendation
was accepted and the said Respondents were appointed. It is not in
dispute that they joined duties on the 4th and 5thof November, 2008.
Questioning the legality and validity of the said appointments, Respondents
No. 1 to 3 filed Civil Writ Petition No. 3028/2008 before the High Court
of Himachal Pradesh, which came to be allowed by the Division Bench
of the High Court by the impugned order on 28.12.2009. Challenging the
decision of the Division Bench the State of Himachal Pradesh preferred
a Special Leave Petition before this Court, from which the present Civil
Appeal arises pursuant to leave being granted on 08.11.2011. Similarly,
the direct recruit appointees, Respondents No. 4 to 6 also filed a Special
Leave Petition, which is numbered Civil Appeal no. 9747/2011 after leave
was granted.
2. The solitary argument advanced on behalf of Respondents No.
1 to 3, which was accepted by the Division Bench was that the vacancies
which arose prior to the promulgation of New Rules were to be filled
only as per the 1966 Rules and not as per the New Rules. The High
Court formulated the issue and proceeded to allow the Writ Petition on
the ground that it is covered by the decision of this Court in Y.V. Rangaiah
v. J. Sreenivasa Rao (supra).The operative portion of the judgment is
extracted herein for ready reference:
"The question whether the vacancies occurring before the
amendment to the Recruitment and Promotion Rules are to be
filled up as per the old Recruitment and Promotion Rules or
by way of new Recruitment and Promotion Rules is no more
res integra in view of the law laid down by their Lordships of
this Court in Y.V. Rangaiah and others versus J. Sreenivasa
Rao, (1983) 3 SCC 284."
Submissions:
3.1 In these appeals, we heard Shri P.S. Patwalia, Senior Advocate
assisted by Advocate-on-Record Shri Abhinav Mukerji, for the AppellantState and Shri. Prasanjit Keshvani, Ld. Advocate representing the
Respondents and also Shri. Ravindra Kumar Raizada, Senior Advocate
assisted by Ms. Divya Roy, Advocate-on-Record appearing for some
other Respondents.
3.2 Shri P.S. Patwalia, learned Senior Advocate for the AppellantState made the following submissions. At the outset, he would submit,
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that there was no challenge to the legality of the New Rules and therefore
the Respondents cannot seek a relief which is contrary to the Rules i.e.,
filling up the posts by way of promotion as per the Old Rules. Secondly,
the inter-departmental letter dated 20.07.2006 followed by the notification
dated 02.01.2007 creating the posts was in furtherance of the new policy
which was brought into effect by the amendments made to the Rules. It
was therefore contended that the inter-departmental letter dated
20.07.2006 cannot be seen as a standalone event and that it is part of the
larger policy to restructure the cadre. Thirdly, there is no vested right to
promotion, though there is only a right to be considered for promotion as
per the rules which are in force at the time of such consideration. Fourthly,
the recruitment exercise undertaken by the State is completely based on
the policy consideration of the State which the High Court failed to take
into account. In support of this submission, reliance was placed on
judgments of this Court in K. Ramulu4, Deepak Agarwal5 and Krishna
Kumar6. It was finally contended that the High Court erred in applying
the decision of Rangaiah which was the case of promotion, while the
present case is about direct recruitment to the post of Labour Officers.
3.3 Shri Keshwani followed by Shri Raizada, Senior Advocate for
the Respondents made the following submissions. They would contend
that the 7 new posts were created before the promulgation of the New
Rules and there was no Governmental Policy regarding the applicability
of the New Rules retrospectively. Secondly, there is no evidence to show
that the State made a conscious decision to keep the posts vacant, to be
filled as per the New Rules. On the contrary, they would submit that the
communication dated 20.07.2006 sanctioning the creation of the posts
stated that they must be filled on a regular basis. Thirdly, the High Court
was right in applying the decision of Rangaiah which settled the law on
appointments to posts falling vacant prior to the amendment of the rules
by holding that they must be governed by the old rules and not the new
rules. Finally, to apply the New Rules to the pending vacancies, the
appointing authority must demonstrate that they had (i) taken a conscious
decision not to fill the vacancies until the promulgation of the new rules
and (ii) such a decision must be for a good and a valid reason. For this
purpose, reliance is placed on judgments of this Court in K. Ramulu7,
4 Dr. K. Ramulu & Anr v. Dr. S Suryaprakash Rao (1997) 3 SCC 59.
5 Deepak Agarwal v. State of U.P (2011) 6 SCC 725.
6 Union of India v. Krishna Kumar (2019) 4 SCC 319.
7 Dr. K. Ramulu & Anr v. Dr. S Suryaprakash Rao (1997) 3 SCC 59.
STATE OF HIMACHAL PRADESH & ORS. v. RAJ KUMAR
& ORS. [PAMIDIGHANTAM SRI NARASIMHA, J.]
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Deepak Agarwal8 and D. Raghu9 to demonstrate that no such effort
was made.
Issue:
4.1 The real question is whether the vacancies which arose prior
to the promulgation of the new rules are to be filled only as per the old
rules and not as per the amended rules? It is argued that this principle is
no more res-integra as the Supreme Court recognised such a right in
Rangaiah's case and it has been followed in a large number of
subsequent decisions. A list of such judgments was forwarded to the
Court by the Respondents. On the other hand, while submitting that
there is no such right, an even larger list of decisions of this Court that
distinguished Rangaiah was forwarded to us on behalf of the State.
4.2 We have taken note of the fact that there are a large number
of decisions that have either followed the principle in Rangaiah or have
distinguished it. The principle in Rangaiah's case has given rise to a
number of decisions, most of them have disapplied Rangaiah and have
in fact, watered-down the principle while distinguishing it. In this view of
the matter, and for clarity and certainty, it is necessary for us to review
the subject and restate the principle in simple and clear terms.
4.3 We will first examine the principle laid down in Rangaiah
itself. We will verify it in the context of the constitutional position provided
in Chapter XIV of the Constitution relating to services under the State.
We will thereafter examine the decisions that followed Rangaiah and
also those that have distinguished it.After restating the principle, we will
apply it to the facts of the case for arriving at our decision.
The decision in the case of Y.V. Rangaiah v. J. Sreenivasa Rao:
5.1 The Petitioners in Rangaiah's case were working as LDCs
in the Department of Registration and Stamps, Government of A.P. Under
Rule 4(a)(1)(i) of the A.P. Registration and Subordinate Service Rules,
appointments to the promotional posts of Sub-Registrar Grade II from
LDCs were to be made from the panel of "approved candidates" made
under Rule 34 (c). The panel was to be prepared by the prescribed
authority in the month of September every year and it could operate till
a list for the subsequent year was prepared. Importantly, the list had to
contain names of as many persons as there are vacancies. As the
8 Deepak Agarwalv. State of U.P (2011) 6 SCC 725.
9 D. Raghu v. R. Basaveswarudu 2020 SCC Online 124.
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approved list was not prepared within the prescribed time, promotions
could not take place in time. In the meanwhile, the amended rules came
into force, as per which the petitioners lost their chance to be considered
for promotion. They contended before this Court that their right to be
considered for appointment for promotion would not be lost with the
advent of new rules as the vacancies occurring prior to the amendment
of the rules were to be filled under the unamended rules. In other words,
the contention was that the mandatory requirement under the old rules
was violated. It is in this context that the Court observed as under:-
"9. ....Under the old rules a panel had to be prepared every
year in September. Accordingly, a panel should have been
prepared in the year 1976 and transfer or promotion to the
post of Sub-Registrar Grade-II should have been made out
of that panel. In that event, the petitioners in the two
representation petitions who ranked higher than respondents
3 to 15 would not have been deprived of their right of being
considered for promotion. The vacancies which occurred prior
to the amended rules would be governed by the old rules and
not by the amended rules. It is admitted by counsel for both
the parties that henceforth promotion to the post of SubRegistrar Grade II will be according to the new rules on the
zonal basis and not on the State-wide basis and, therefore,
there was no question of challenging the new rules. But the
question is of filling the vacancies that occurred prior to the
amended rules. We have not the slightest doubt that the posts
which fell vacant prior to the amended rules would be
governed by the old rules and not by the new rules."
(emphasis supplied)
5.2 The question that arose in Rangaiah's case related to the
mandatory obligation under the old rules to prepare an approved list of
candidates and also the number of persons to be placed in the list as per
the vacancies available. It is in this context that the Court observed that
the vacancies would be governed by the old rules. This decision is
not to be taken to be laying down an invariable principle that vacancies
occurring prior to the amendment of the rules are to be governed by old
rules. It is important to note that the Court has not identified any vested
right of an employee, as has been read into this judgment in certain
subsequent cases.
STATE OF HIMACHAL PRADESH & ORS. v. RAJ KUMAR
& ORS. [PAMIDIGHANTAM SRI NARASIMHA, J.]
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5.3 However, as the observation in Rangaiah's case has been
construed as a general principle that vacancies arising prior to the
amendment of rules are to be filled only as per the old rules, it is necessary
for us to examine the correct position of law. For this purpose, we will
examine the constitutional position and the status that governs the
relationship between an employee and the State.
Status of persons serving the Union and the States:
6.1 The relationship between the State and its employees is
provisioned in Part XIV of the Constitution. The provisions of this Part
empower the Union and the States to make Laws and executive Rules,to
regulate the recruitment, conditions of service10, tenure11 and
termination12 of persons serving the Union or the States.
6.2 Article 310 provides that, except as expressly provided in the
Constitution, every person serving the Union or the States holds office
during the pleasure of the President or the Governor.
6.3 The legislative power conferred on the Parliament or a State
Legislature, to make Laws, or the executive power conferred on the
President or the Governor to make Rules under Article 309 is controlled
by the doctrine of pleasure embodied in Article 310. This is clear from
the fact that Article 309 opens with the restrictive clause, 'subject to
the provision of the Constitution. It is for this reason that the power of
the legislature to make laws and the executive to make Rules, for laying
down conditions of services of a public servant is always subject to the
tenure at the pleasure of the President or the Governor under Article
310.
7.1 The Constitutional provision to provide public employment on
the basis of tenure at pleasure of the President or the Governor is
based on 'public policy', 'public interest' and 'public good'. The concept
of holding public employment at pleasure is explained in Constitution
Bench decision of this Court in Union of India v. Tulsiram Patel13.The
relationship between the Government and its employees, as explained in
this judgment can be formulated as under14 :-
10 Article 309, Constitution of India.
11 Article 310, Constitution of India.
12 Article 311, Constitution of India.
13 Union of India v. Tulsiram Patel(1985) 3 SCC 398.
14 The relevant propositions in the Tulsiram case, as identified and extracted in 'Law
Relating to Public Services', Samaraditya Pal, 3rd Edition, Lexis Nexis, 2011is adopted
for convenience.
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I. Unlike in the United Kingdom, in India it is not subject to
any law made by Parliament but is subject only to what is
expressly provided by the Constitution.15
II. The pleasure doctrine relates to the tenure of a Government
servant... , ... means the period for which an incumbent of
office holds it.16
III. The position that the pleasure doctrine is not based upon
any special prerogative of the Crown but upon public policy
has been accepted by this Court in State of U.P. v. Babu Ram
Upadhya and Moti Ram Deka v. General Manager, N.E.F.,
Railways, Maligaon, Pandu17.
IV. The only fetter which is placed on the exercise of such
pleasure is when it is expressly so provided in the Constitution
itself, that is when there is an express provision in that behalf
in the Constitution. Express provisions in that behalf are to
be found in the case of certain Constitutional functionaries
in respect of whose tenure special provision is made in the
Constitution as, for instance, in clauses (4) and (5) of Article
124 with respect to Judges of the Supreme Court, Article 218
with respect to Judges of the High Court. Article 148(1) with
respect to the Comptroller and Auditor-General of India,
Article 324(1) with respect to the Chief Election Commissioner,
and Article 324(5) with respect to the Election Commissioners
and Regional Commissioners.18
V. Clauses (1) and (2) of Article 311 impose restrictions upon
the exercise by the President or the Governor of a State of his
pleasure under Article 310(1). These are express provisions
with respect to termination of service by dismissal or removal
as also with respect to reduction in rank of a civil servant
and thus come within the ambit of the expression Exceptas
otherwise provided by this 'Constitution' qualifying Article
310(1). Article 311 is thus an exception to Article 310 and
was described in Parshotam Lal Dhingra v. Union of India,19
15 (1985) 3 SCC 398 @ 439
16 Ibid at 440.
17 Ibid at 441
18 Ibidat 447.
19 Ibid at 447
STATE OF HIMACHAL PRADESH & ORS. v. RAJ KUMAR
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as operating as a proviso to Article 310(1) though set out in
a separate Article.20
VI. Article 309, is however, not such an exception. It does not
lay down any express provision which would derogate from
the amplitude of the exercise of pleasure under Article 310(1).
It merely confers upon the appropriate legislature or executive
the power to make laws and frame rules but this power is
made subject to the provisions of the Constitution. Thus,
Article 309 is subject to Article 310(1) and any provision
restricting exercise of the pleasure of the President or
Governor in an Act or rule made or framed under Article 309
not being an express provision of the Constitution, cannot
fall within the expression 'Except as expressly provided by
this Constitution' occurring in Article 310(1) and would be in
conflict with Article 310(1) and must be held to be
unconstitutional.21
VII. Clauses (1) and (2) of Article 311 expressly restrict the
manner in which a Government servant can be dismissed,
removed or reduced in rank and unless an Act made or rule
framed under Article 309 also conforms to these restrictions,
it would be void. The restrictions placed by clauses (1) and
(2) of Article 311 are two- (i) with respect to the authority
empowered to dismiss or remove a Government servant
provided for in clause (1) of Article 311, and (ii) with respect
to the procedure for dismissal, removal or reduction in rank
of a Government servant provided for in clause (2).22
(emphasis supplied)
7.2 Regardless of its origin, the doctrine of pleasure incorporated
under our constitutional scheme is to subserve an important public
purpose. In Para 44 and 45 of Tulsiram Patel (supra), this Court has
explained the purpose and object of incorporating this principle:
"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,
20 Ibid at 447.
21 Ibid at 447
22 Ibid at 447
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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, 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 enginedrivers, 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 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
STATE OF HIMACHAL PRADESH & ORS. v. RAJ KUMAR
& ORS. [PAMIDIGHANTAM SRI NARASIMHA, J.]
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and the disciplinary inquiry dispensed with, the concerned
Government servant 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 policy and in the public interest and are for
public good."
8. The principle of a public servant holding office at the pleasure
of the President or the Governor is incorporated in the Constitution
itself (under Article 310). This has a direct bearing on the powers of the
Parliament or the legislature to make Laws or the executive to make
Rules for specifying conditions of service provided under Article 309.
This position is clearly explained in the above-referred passages. In B.P.
Singhal v. Union of India23 this Court explained the consequence of
holding the office during the pleasure of the President or the Governor:
"33. The doctrine of pleasure as originally envisaged in
England was a prerogative power which was unfettered. It
meant that the holder of an office under pleasure could be
removed at any time, without notice, without assigning cause,
and without there being a need for any cause.