UNION OF INDIA & ORS.versusKRISHNA KUMAR & ORS.

982                      [2019]REPORTS
               SUPREME COURT    1 S.C.R. 982              [2019] 1 S.C.R.


A                         UNION OF INDIA & ORS.
                                       v.
                         KRISHNA KUMAR & ORS.
                         (Civil Appeal No. 672 of 2019)
B
                              JANUARY 14, 2019
                 [DR. DHANANJAYA Y CHANDRACHUD
                       AND HEMANT GUPTA, JJ.]
             Assam Rifles Warrant Officer (General Duty) Group ‘C’
C     Combatised Posts Recruitment Rules, 2012 – Promotion to the post
      of Naib Subedar after re-structuring of Assam Rifles in 2011 and
      creation of Recruitment Rules in 2012 – Eligibility of – In 2011,
      Union of India introduced an intermediate rank of Warrant officer
      by the abolition/upgradation of one post of Havildar – Thereafter,
D     Recruitment Rules, 2012 were notified – In terms of the Recruitment
      Rules, 2012 the post of Warrant Officer was created which was
      required to be filled up by promotion amongst members of the Assam
      Rifles holding the rank of Havildar – Consequently, promotion orders
      were issued for Havildars to the newly created post of Warrant
      Officer – Writ proceedings were instituted with a grievance that the
E     promotion ought to have been made to the rank of Naib Subedar –
      Writ petition allowed by the High Court – On appeal, held: The
      entire basis of the decision of the 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
F     the post of Naib Subedar – This does not reflect the correct position
      in law – The right is to be considered for promotion in accordance
      with the Rules as they exist when the exercise is carried out for
      promotion – Thus, once the structure of the Assam Rifles underwent
      a change following the creation of the intermediate post of Warrant
      officer, persons holding the post of Havildar would be considered
G     for promotion to the post of Warrant Officer – Service Law.
            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 they
      existed earlier, the promotional avenue for a Havildar lay to the
H
                                      982
            UNION OF INDIA v. KRISHNA KUMAR                           983


post of Naib Subedar. In 2011, Union of India introduced an           A
intermediate rank of Warrant officer by the abolition/upgradation
of one post of Havildar. In terms of the new Recruitment Rules
i.e. Assam Rifles Warrant Officer (General Duty) Group ‘C’
combatised Posts Recruitment Rules, 2012, the post of Warrant
Officer was created which was required to be filled up by
                                                                      B
promotion amongst members of the Assam Rifles holding the
rank of Havildar. Consequent to which, promotion orders were
issued for Havildars to the newly created post of Warrant Officer.
Writ proceedings were instituted. The High Court allowed the
writ petition and held that vacancies which arose prior to the
amendment of the Recruitment Rules would necessarily be               C
governed by the Rules which existed at the time of the occurrence
of the vacancies. Hence, present Appeals.
      Disposing of the appeals, the Court
      HELD: 1. It is well-settled that there is no vested right to    D
promotion, but a right be considered for promotion in accordance
with the Rules which prevail on the date on which consideration
for promotion takes place. This 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 decision of this Court in Y.V.          E
Rangaiah vs. Sreenivasa Rao 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 vs.
Union of India that the creation of an intermediate post would        F
not amount to an interference with the vested right to promotion.
[Para 11][987-F-H; 988-A]
      2. 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          G
promotion to the post of Warrant Officer. The intermediate post
of Warrant Officer was created as a result of the restructuring
exercise. The High Court 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
                                                                      H
984           SUPREME COURT REPORTS                      [2019] 1 S.C.R.


A     at the time of the occurrence of the vacancies. As the decided
      cases noted earlier indicate, there is no such rule of absolute or
      universal application. The entire basis of the decision of the 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
B
      not reflect the correct position in law. The right is to be
      considered for promotion in accordance with the Rules as they
      exist when the exercise is carried out for promotion. [Para
      14][989-E-G]
            Y.V. Rangaiah v. Sreenivasa Rao (1983) 3 SCC 284;
C
            H.S. Grewal v. Union of India (1997) 11 SCC 758;
            Deepak Agarwal v. State of Uttar Pradesh (2011) 6 SCC
            725 : [2011] 4 SCR 149; State of Tripura v. Nikhil
            Ranjan Chakraborty (2017) 3 SCC 646 – relied on.
                             Case Law Reference
D
            (1983) 3 SCC 284        relied on               Para 5
            (1997) 11 SCC 758       relied on               Para 5
            [2011] 4 SCR 149        relied on               Para 6

E           (2017) 3 SCC 646        relied on               Para 7
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 672 of
      2019 @ SLP(C) No. 26451 of 2014.
            From the Judgment and Order dated 10.12.2013 of the High
      Court of Manipur at Imphal in Writ Petition No. 590 of 2012.
F
                                    WITH
            Civil Appeal Nos. 673 of 2019 @ SLP (C) No. 30337 of 2014,
      and 674 of 2019 @ SLP(C) No. 30334 of 2014.
            Ms. Pinky Anand, ASG, Ms. V. Mohana, Sr. Adv., T. A. Khan,
G     Shankar Divate, Hemant Arya, Bipin Kurian, Anish Kumar Gupta,
      Chandra Shekhar Suman, B. V. Balaram Das, B. Krishna Prasad, K. G.
      Bhagat, Ms. Archna Midha, Vineet Bhagat, Niraj Jha, Vinod Sharma,
      Pawan Reley, Advs. for the appearing parties.


H
              UNION OF INDIA v. KRISHNA KUMAR                                   985


      The Judgment of the Court was delivered by                                A
      DR. DHANANJAYA Y CHANDRACHUD, J.
      CIVIL APPEAL (@ SLP(C) No.26451 of 2014)
      1. Leave granted.
        2. This appeal arises from an order of a learned Single Judge of        B
the High Court of Manipur dated 10 December 2013. The High Court,
by its impugned order, has issued a direction to the appellants to consider
the case of the respondents (the petitioners before the High Court) 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          C
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 High Court directed that such an exercise be carried out in
respect of other Havildars against vacancies which had occurred prior
to 2011.
                                                                                D
       3. 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 they existed earlier,
the promotional avenue for a Havildar lay to the post of Naib Subedar.
Following the recommendations of the Sixth Pay Commission, the Union
of India in the Ministry of Home Affairs conveyed its sanction on 3             E
March 2011 for the introduction of an intermediate rank of Warrant
Officer by the abolition/upgradation of one post of Havildar. On 16
June, 2012, the Assam Rifles Warrant Officer (General Duty) Group
‘C’ Combatised Posts Recruitment Rules, 2012 were notified. In terms
of the Recruitment Rules, the post of Warrant Officer was created which         F
was required to be filled up by promotion amongst 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.
The Rules, inter alia, stipulated the following conditions for promotion:
      “Promotion amongst the members of Assam Rifles holding the
                                                                                G
      rank of Havildar (General Duty) with five years regular service
      in the grade and possessing the following educational qualifications,
      namely:-
      (i) Map reading standard one-Pass
                                                                                H
986            SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A           (ii) Promotion cadre passed – Pass
            (iii) Technical Trade Test One – Pass
            Note 1: Where juniors who have completed their qualifying or
            eligibility service are considered for promotion their seniors would
            also be considered provided they are not short of the requisite
B           qualifying or eligibility service for more than half of such qualifying
            or eligibility service or two years, whichever is less, and have
            successfully completed their probation period for promotion to
            the next grade with their juniors who have already completed
            such qualifying or eligibility service.
C           Note 2: For the purpose of counting minimum qualifying service
            for promotion, the service rendered on a regular basis by an officer
            prior to the 1st January, 2006 i.e. the date from which the revised
            pay structure band or the Sixth Central Pay Commission
            recommendations has been extended, shall be deemed to be service
D           rendered in the corresponding grade pay or pay scale extended
            based on the recommendations of the Commission.”
             4. On 13 August 2012, promotion orders were issued for Havildars
      to the newly created post of Warrant Officer. The respondents were
      promoted as Warrant Officers.
E           5. Writ proceedings were instituted before the High Court 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 Naib Subedar.
             6. The High Court allowed the writ petition by holding that despite
F     the changes which were brought about in the structure of 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
      Naib Subedars, were required to be enforced. The High Court observed
      that:
G           “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.”
            7. On this basis, the High Court directed the appellants to consider
      the case of the respondents and other Havildars for promotion to the
H
               UNION OF INDIA v. KRISHNA KUMAR                                  987
             [DR. DHANANJAYA Y CHANDRACHUD, J. ]

post of Naib Subedars against vacancies which had occurred prior to             A
the changes which were carried out in 2011 and before the enforcement
of the Recruitment Rules, 2012.
         8. Assailing the judgment, the Union of India is in appeal.
       9. Ms. Pinky Anand, learned Additional Solicitor General appearing
on behalf of the appellants, submits that the High Court has proceeded          B
on the erroneous basis that vacancies which occurred prior to the
amendment of the Recruitment Rules were required to be governed by
the erstwhile provisions under which the promotion from the post of
Havildar would lie to the post of Naib Subedar. The learned Additional
Solicitor General submitted that once there was a change in the structure       C
of Assam Rifles in 2011 and the Recruitment Rules of 2012 prescribe
that promotion from the post of Havildar would lie to the post of Warrant
Officer, the High Court was not justified in issuing the above directions.
      10. On the other hand, it has been submitted on behalf of the
respondents that if Havildars are to be promoted as the Warrant Officers,       D
that would violate their fundamental rights under Articles 14 and 16 of
the Constitution. Learned counsel submits that under the Rules, as they
prevailed prior to the restructuring of Assam Rifles, promotion for
Havildars lay to the post of Warrant Officer. While the respondents
have not challenged the Recruitment Rules, as noted by the High Court,
they urge that vacancies which have arisen prior to 2011 must be filled         E
up by promoting Havildars eligible for promotion to the post of Naib
Subedars.
       11. In considering the rival submissions, it must, at the outset, be
noted that it is well-settled that there is no vested right to promotion, but
a right be considered for promotion in accordance with the Rules which          F
prevail on the date on which consideration for promotion takes place.
This 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 decision of this Court
in Y.V. Rangaiah Vs. Sreenivasa Rao1 has been construed in subsequent
                                                                                G
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 Vs. Union of India2 that the
creation of an intermediate post would not amount to an interference
1
    (1983) 3 SCC 284
2
    (1997) 11 SCC 758                                                           H
988               SUPREME COURT REPORTS                          [2019] 1 S.C.R.


A     with the vested right to promotion. A two-Judge Bench of this Court
      held thus:
             “...Such an introduction of an intermediate post does not, in our
             opinion, amount to interfering with any vested rights cannot be
             interfered with, is to be accepted as correct. What all has happened
B            here is that an intermediate post has been created prospectively
             for future promotions from Group-B Class-II to Group-A Class-I.
             If, before these rules of 1981 came into force, these officers were
             eligible to be directly promoted as Commandant under the 1974
             rules but before they got any such promotions, the 1981 Rules
             came in obliging them to go through an intermediate post, this
C            does not amount to interfering with any vested rights.”
             12. In Deepak Agarwal Vs. State of Uttar Pradesh3, this Court
      observed thus:
             “26. It is by now a settled proposition of law that a candidate has
             the right to be considered in the light of the existing rules, which
D            implies the `rules in force’ on the date the consideration took place.
             There is no rule of universal or absolute application that vacancies
             are to be filled invariably by the law existing on the date when the
             vacancy arises. The requirement of filling up old vacancies under
             the old rules is interlinked with the candidate having acquired a
E            right to be considered for promotion. The right to be considered
             for promotion accrues on the date of consideration of the eligible
             candidates. Unless, of course, the applicable rule, as in Y.V.
             Rangaiah’s case (supra) lays down any particular time frame,
             within which the selection process is to be completed. In the
             present case, consideration for promotion took place after the
F            amendment came into operation. Thus, it cannot be accepted that
             any accrued or vested right of the appellants have been taken
             away by the amendment. The judgments cited by learned counsel
             for the appellants namely B.L. Gupta Vs. MCD (supra), P.
             Ganeshwar Rao Vs. State of Andhra Pradesh (supra) and N.T.
             Devin Katti & Ors. Vs. Karnataka Public Service Commission
G
             & Ors (supra) are reiterations of a principle laid down in Y.V.
             Rangaiah’s case (supra).”
             13. Recently, in State of Tripura Vs. Nikhil Ranjan Chakraborty4,
      another two-Judge Bench of this Court held thus:
      3
          (2011) 6 SCC 725
H     4
          (2017) 3 SCC 646
            UNION OF INDIA v. KRISHNA KUMAR                                     989
          [DR. DHANANJAYA Y CHANDRACHUD, J. ]

      “The law is thus clear that a candidate has the right to be considered    A
      in the light of the existing rules, namely, “rules in force on the
      date” the consideration takes place and that there is no rule of
      absolute application that vacancies must invariably be filled by
      the law existing on the date when they arose. As against the case
      of total exclusion and absolute deprivation of a chance to be
                                                                                B
      considered as in the case of Deepak Agarwal (supra), in the instant
      case certain additional posts have been included in the feeder
      cadre, thereby expanding the zone of consideration. It is not as if
      the writ petitioners or similarly situated candidates were totally
      excluded. At best, they now had to compete with some more
      candidates. In any case, since there was no accrued right nor             C
      was there any mandate that vacancies must be filled invariably
      by the law existing on the date when the vacancy arose, the State
      was well within its rights to stipulate that the vacancies be filled in
      accordance with the Rules as amended. Secondly, the process to
      amend the Rules had also begun well before the Notification dated
                                                                                D
      24.11.2011.”
       14. 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. The intermediate post of Warrant Officer was created as a              E
result of the restructuring exercise. The High Court was, in our view, 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 the occurrence of the vacancies. As the
decided cases noted earlier indicate, there is no such rule of absolute or      F
universal application. The entire basis of the decision of the 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. The right is to be considered for promotion in accordance
with the Rules as they exist when the exercise is carried out for promotion.    G

      15. Hence, we see merit in the appeal. We accordingly allow the
appeal and set aside the impugned judgment and order of the High Court.
There shall, however, be no order as to costs.

                                                                                H
990                SUPREME COURT REPORTS                    [2019] 1 S.C.R.


A          CIVIL APPEALS [@SLP(C) No.30337 of 2014) and SLP(C)
      No.30334 of 2014]
            16. Applications for impleadment are allowed.
            17. Delay condoned.
B           18. Leave granted.
            19. In view of the judgment delivered today in Union of India Vs.
      Krishna Kumar [Civil Appeal @SLP(C) No.26451 of 2014], these
      appeals are accordingly disposed of. No costs.

C     Ankit Gyan                                             Appeals disposed of.




D




E




F




G




H