Service matter – we hold that the Judgment of the Division Bench is liable to be set aside since the contesting Respondents did not have a vested or fructified right of promotion to OAS Class II posts which had arisen during the recruitment year 2008. The names of the contesting Respondents were merely recommended for consideration. In the meanwhile, in 2009 the State had re­structured the cadre, and abolished the OAS Class II cadre. The re­constituted cadre viz. the Orissa Revenue Service Group ‘B’ cadre came in its place. Hence, the direction of the Division Bench to appoint the contesting Respondents in the vacancies which had occurred in the abolished cadre, in accordance with the repealed 1978 Rules, was contrary to law, and liable to be set aside.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4646 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4976 of 2019]
State of Orissa & Anr. …Appellants
Versus
Dhirendra Sundar Das & Ors. …Respondents
WITH
CIVIL APPEAL NO.4647 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4977 of 2019]
CIVIL APPEAL NO.4648 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4978 of 2019]
CIVIL APPEAL NO.4649 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4979 of 2019]
CIVIL APPEAL NO.4650 OF 2019
[Arising out of Special Leave Petition (Civil) No. 4980 of 2019]
CIVIL APPEAL NO.4651 OF 2019
[Arising out of Special Leave Petition (Civil) No.11861 of 2019]
(Diary No. 13938 of 2019)
CIVIL APPEAL NO.4652 OF 2019
[Arising out of Special Leave Petition (Civil) No.11862 of 2019]
(Diary No. 13946 of 2019)
1
J U D G M E N T
INDU MALHOTRA, J.
Leave granted.

  1. The present Civil Appeals arise out of S.L.P. (C) Nos. 4976­
    4980/2019 and S.L.P. (C) Diary Nos. 13938 and 13946/2019.
    S.L.P. (C) Nos. 4976­4980/2019 arise out of the common
    impugned Judgment and Order dated 30.04.2018 passed by a
    Division Bench of the Orissa High Court in W.P. (C) Nos.
    14831/2013, 18749/2012, 6720/2013, 25961/2017 and
    9200/2016.
    S.L.P. (C) Diary Nos. 13938 and 13946/2019 arise out of
    the impugned Orders dated 08.08.2018 and 10.08.2018
    passed by a Division Bench of the Orissa High Court whereby
    W.P. (C) Nos. 7383 and 14665/2018 were disposed of in terms
    of the common impugned Judgment and Order dated
    30.04.2018.
  2. The factual matrix in which the present Civil Appeals arise for
    consideration, briefly stated, are as under:
    2
    2.1. On 28.04.2008, a Letter was issued by the Appellant –
    State of Orissa (“State”) to all Departments, Heads of
    Departments, and Collectors inviting recommendations
    for appointment by way of promotion to the Orissa
    Administrative Service Class – II (“OAS Class – II”) cadre
    having 150 vacancies. The recruitment process was to be
    undertaken in accordance with the Orissa
    Administrative Service, Class II (Recruitment) Rules,
    1978 (“OAS Class II Rules, 1978”) and the Orissa
    Administrative Service, Class – II (Appointment by
    Promotion and Selection) Regulations, 1978 (“OAS Class
    II Regulations, 1978”).
    2.2. The concerned Departmental Authorities forwarded the
    names of 559 candidates, including the contesting
    Respondents, for consideration to be promoted/selected
    to OAS Class – II posts.
    2.3. The State issued Office Order dated 07.06.2008, for
    implementation of the Judgment dated 11.04.2007
    3
    passed by the Orissa Administrative Tribunal, Cuttack
    Bench (“O.A.T.”).
    The O.A.T. had directed the State to separately
    assess the vacancies for the years 2001 to 2005 year
    wise, conduct the process of calling for names, hold a
    D.P.C. in accordance with established procedure, and
    make appointments within a period of six months.
    2.4. In this background, the State decided to keep the
    recruitment process for OAS Class – II posts for the
    recruitment year 2008 on hold, till the process of
    recruitment by way of promotion/selection for the years
    2001­2005 was completed.
    2.5. Pursuant to the Judgment of the Tribunal, the State
    vide Letter dated 19.06.2008 called for recommendations
    for the years 2001 to 2005 from all Departments, Heads
    of Departments, and Collectors for recruitment to OAS
    Class – II posts under Rule 3(c) of the OAS Class II
    Rules, 1978.
    4
    2.6. Aggrieved by the delay in completion of the recruitment
    process for the years 2007­2008, various O.A.s were
    filed by the contesting Respondents, and other similarly
    situated persons, who had been recommended for
    consideration to OAS Class – II posts against the
    vacancies for 2008 before the O.A.T. The Applicants
    prayed for completion of the recruitment process by
    convening a D.P.C.; and declaration of the selection list
    for the years 2007­2008 within a month, and issuance of
    appointment letters.
    2.7. The State undertook restructuring of the Orissa
    Administrative Service in February 2009.
    The re­structured Orissa Administrative Service
    cadre would comprise of different Grades, viz. – OAS
    Class – I (Junior Branch), OAS Class I (Senior Branch),
    OAS (Supertime Scale), OAS (Senior Grade in Supertime
    Scale), OAS (Superior Administrative Grade), and OAS
    (Special Secretary).
    2.8. By Resolution dated 25.05.2009, the Orissa Revenue
    Service Group ‘B’ cadre was constituted.
    5
    The existing cadre of OAS Class – II posts was
    abolished. The corresponding cadre of OAS Class – II
    was the Orissa Revenue Service Group ‘B’ cadre.
    2.9. The State vide two Notifications dated 07.12.2010
    appointed candidates on OAS Class – II posts by way of
    selection and promotion for the recruitment years 2001
    to 2005.
    2.10. The State framed the Orissa Administrative Services
    (Method of Recruitment and Conditions of Service)
    Rules, 2011 (“OAS Rules, 2011”) under Article 309 of
    the Constitution of India. The Rules came into force on
    25.06.2011.
    Rule 17 of the OAS Rules, 2011 repealed the OAS
    Class II Rules, 1978 under which the 2008 recruitment
    process had been initiated.
    Rule 4 of the OAS Rules, 2011 provides for
    recruitment by promotion to Group ‘A’ (Junior Branch)
    posts of the re­constituted Orissa Administrative Service
    cadre from members of the Orissa Revenue Service.
    6
    Similarly, the Orissa Revenue Service (Recruitment)
    Rules, 2011 (“ORS Rules, 2011”) came into force on
    June 27, 2011 to regulate the method of recruitment,
    and conditions of service, of persons appointed to the
    Orissa Revenue Service, including Group ‘B’ posts.
    2.11. The O.A.T. vide Judgment dated 14.03.2012 decided the
    O.A.s filed by the contesting Respondents and other
    similarly situated persons who were under consideration
    for the vacancies for the recruitment year 2008. The
    State was directed to take immediate steps to fill up
    Class – II/Group ‘B’ posts in the Orissa Revenue Service
    cadre. 50% of the vacancies were to be filled up by direct
    recruitment, and 50% by promotion from amongst Class
    – III/Group C employees as early as practicable, and
    preferably within six months. The relief claimed by the
    contesting Respondents and other similarly situated
    persons could not be granted unless 50% of the available
    vacancies were first filled up by direct recruitment in
    accordance with the Rules. The contesting Respondents
    had merely been recommended by their respective
    7
    Departmental Authorities for promotion/selection to
    OAS Class – II (Group B) posts. There was no Selection
    Board/D.P.C. which was convened, nor was any Select
    List/Merit List prepared. The contesting Respondents
    who were continuing against Class III posts, could be
    considered for promotion only to Class – II (Group B)
    posts, and not directly to Class – I (Group A) posts. No
    right had accrued in favour of the contesting
    Respondents to seek convening of a Selection
    Board/Department Promotion Committee for
    appointment on OAS Class – II posts. The contesting
    Respondents would be eligible for consideration against
    the available Class – II/Group B posts in the
    promotional quota, after 50% of the vacancies were filled
    up by direct recruitment.
    2.12. Aggrieved by the common Judgment and Order dated
    14.03.2012 passed by the O.A.T., the contesting
    Respondents filed W.P.s before the Orissa High Court
    seeking quashing of the Judgment dated 14.03.2012
    passed by the O.A.T.; issuance of directions to the State
    8
    to complete the recruitment process to OAS Class – II
    posts on the basis of the recommendations made in
    favour of the contesting Respondents; and, grant
    promotion to the contesting Respondents to OAS Class –
    II posts with all service and promotional benefits from
    the date such benefits were due.
    2.13. The Division Bench by the common impugned Judgment
    and Order dated 30.04.2018 disposed of the W.P.s filed
    by the contesting Respondents, and set aside the
    Judgment dated 14.03.2012 passed by the O.A.T. The
    State Authorities were directed to call for a review D.P.C.
    to consider the cases of the contesting Respondents, and
    other eligible officers, and complete the recruitment
    process for 150 vacant OAS Class – II posts as against
    the recruitment year of 2008 within 3 months. The High
    Court held that the 150 vacant OAS Class – II posts for
    which recommendations were made in the year 2008,
    prior to the abolition of the OAS Class – II posts, and reconstitution of the Orissa Revenue Service cadre, be
    filled up under the OAS Class II Rules, 1978.
    9
  3. Aggrieved by the impugned Judgment and Order dated
    30.04.2018 as well as the impugned Orders dated 08.08.2018
    and 10.08.2018 passed by the Division Bench, the State has
    filed the present Special Leave Petitions.
  4. The issue which arises for our consideration in the present
    Civil Appeals is whether the Division Bench of the Orissa High
    Court was justified in directing the State to convene a review
    D.P.C. for considering the case of the contesting Respondents
    and other eligible officers, and directing it to complete the
    recruitment process for recruitment year of 2008 to the 150
    vacant posts.
  5. SUBMISSIONS OF PETITIONERS
    5.1. Mr. Ravi Prakash Mehrotra, Advocate on behalf of the
    State submitted that the Division Bench had committed
    a palpable error in directing the State to convene a
    review D.P.C.
    5.2. Placing reliance on a recent decision of this Court in
    Union of India & Ors. v. Krishna Kumar & Ors.1
    , it was
    submitted that no right had accrued in favour of the
    1 2019 (1) SCALE 691.
    10
    contesting Respondents merely on account of their
    names being recommended by the respective
    Departmental Authorities to be considered for
    selection/promotion against the vacancies in the
    recruitment year 2008. The list of persons recommended
    cannot be considered to be the approved list of
    candidates for selection/promotion, since no D.P.C. or
    Selection Committee was convened for the same.
    5.3. It was further submitted that the contesting
    Respondents did not challenge the abolition of the OAS
    Class – II cadre, and the consequent creation of the
    Orissa Revenue Service Group ‘B’ cadre.
    5.4. The contesting Respondents could not claim a lien over
    the OAS Class – II cadre, which had since been
    abolished in 2009, and replaced by the Orissa Revenue
    Service Group ‘B’ cadre.
    5.5. Some of the contesting Respondents had submitted
    themselves before the Selection Committee convened in
    2013, and another in 2018, under the new ORS Rules,
    11
    2011 for appointment to vacant posts in the Orissa
    Revenue Service Group ‘B’ cadre.
    It was, therefore, not open to claim appointments to
    the OAS Class – II posts under the repealed Rules in an
    abolished cadre.
    5.6. The claim of the contesting Respondents cannot be
    considered at par with the candidates for the years 2001
    to 2005 as their appointments were made prior to the
    repeal of the OAS Class II Rules, 1978 and the OAS
    Class II Regulations, 1978.
    5.7. It was further submitted on behalf of the State that if the
    directions of the Division Bench were to be carried out,
    supernumerary posts would be required to be created to
    accommodate the contesting Respondents which was not
    possible. This would create a serious precedent, since
    there were 559 candidates who were similarly situated
    as the contesting Respondents, and had been
    recommended by various Departments in 2008.
  6. SUBMISSIONS OF RESPONDENTS
    12
    6.1. Ms. Meenakshi Arora, learned Senior Advocate,
    submitted that 150 vacant OAS Class – II posts were
    available in 2008. The contesting Respondents were
    eligible, and were duly recommended for appointment by
    way of selection/promotion under the OAS Class II
    Rules, 1978 and the OAS Class II Regulations, 1978.
    6.2. The State, being a model employer, cannot discriminate
    in the matter of selection/promotion to OAS Class – II
    posts on a ‘pick­and­choose’ basis.
    6.3. Admittedly, the OAS Class II Rules, 1978 and the OAS
    Class II Regulations, 1978 were in force at the time when
    the State decided to fill up 150 OAS Class – II posts on
    28.04.2008. The vacancies were required to be filled up
    under the OAS Class II Rules, 1978.
    6.4. Reliance was placed by Ms. Arora, learned Senior
    Advocate, on the decision of this Court in Y.V. Rangaiah
    & Ors. v. J. Sreenivasa Rao & Ors.2
    . It was submitted
    that vacancies which had occurred prior to the repeal of
    the OAS Class II Rules, 1978 and OAS Class II
    2 (1983) 3 SCC 284.
    13
    Regulations, 1978; and the coming into force of the OAS
    Rules, 2011 and the ORS Rules, 2011, would be
    governed by the old Rules, viz. OAS Class II Rules, 1978
    and OAS Class II Regulations, 1978.
  7. DISCUSSION AND ANALYSIS
    7.1. The contesting Respondents cannot claim an accrued or
    vested right for selection or promotion to OAS Class – II
    posts in the year 2008, merely on the basis of their
    names being forwarded by the respective Departmental
    Authorities.
    7.2. When the recruitment process for 2008 was initiated
    vide Letter dated April 28, 2008 by the State, the extant
    rules and regulations occupying the field for selection
    and promotion to OAS Class – II posts were the OAS
    Class II Rules, 1978 and the OAS Class II Regulations,
    1978.
    7.3. Rule 6 of the OAS Class II Rules, 1978 provided for the
    determination of vacancies by the State Government.
    14
    Rule 6 has been reproduced hereinbelow for ready
    reference:
    “6. Filing of vacancies. –
    The State Government may decide the number of
    vacancies in the service as may be required to be filled
    up in any particular year:
    Provided that no recruitment to the service
    shall be made without the prior consultation with the
    Commission”
    (emphasis supplied)
    7.4. Rule 3 of the OAS Class II, Rules 1978 provided that
    recruitment to OAS Class II posts was to be made by
    three methods – first, direct recruitment by competitive
    examination [Rule 3(a)]; second, promotion from
    amongst Gazetted Officers of a certain class [Rule 3(b)];
    and third, selection of non­Gazetted Officers [Rule 3(c)].
    The proportion of candidates to be recruited by the
    methods specified above as per Rule 8 of the OAS Class
    II Rules, 1978 was – 50% by direct recruitment, 30% by
    promotion, and 20% by selection.
    Further, Rule 8(5) also mandated that the State was
    required to consult the Orissa Public Service
    15
    Commission before appointment by way of promotion
    and selection.
    7.5. As per Rule 5 of the OAS Class II Rules, 1978,
    recruitment to OAS Class II posts by way of selection or
    promotion shall be in accordance with the Orissa Class
    II Regulations, 1978, which outline the recruitment
    process.
    7.6. In accordance with Regulation 6(i) of the OAS Class II
    Regulations, 1978, any recruitment process by way of
    selection or promotion was to be initiated by the State by
    calling for recommendations from Collectors, Heads of
    Departments and Departments of Governments, who
    were required to forward a list of candidates considered
    suitable to the Administrative Department (i.e. the
    Revenue Department).
    On receipt of the recommendations, the
    Administrative Department (i.e. the Revenue
    Department) was required to place a list of
    recommended candidates in a tabular form before a
    Selection Board constituted under Regulation 3.
    16
    7.7. Under Regulation 7, the Selection Board was required to
    consider the recommendations so received from the
    Administrative Department, scrutinise the records
    relating to the candidates who had been recommended,
    and prepare a list of candidates who in the opinion of
    the Selection Board are suitable for appointment to OAS
    Class – II posts.
    7.8. Thereafter, as per Regulation 8, the list prepared by the
    Selection Board under Regulation 7 was required to be
    referred to the Orissa Public Service Commission by the
    State Government, along with the service records of the
    all candidates whose names feature in the list.
    7.9. After considering the list prepared under Regulation 7
    along with other documents and records received from
    the State Government, the Orissa Public Service
    Commission was required to recommend a list of
    candidates suitable for selection or promotion, as the
    case may be, under Regulation 9.
    7.10. The list of candidates recommended by the Orissa Public
    Service Commission under Regulation 9 was required to
    17
    be placed before the State Government. The said list,
    after any approval with modification, was to form the
    final list from which appointments were to be made to
    OAS Class – II posts by way of selection or promotion in
    accordance with Regulation 10.
    Thus, the recruitment process by way of selection or
    promotion, as the case may be, initiated in accordance
    with Regulation 6 would culminate on the making of a
    final list as per Regulation 10. Appointments by way of
    promotion or selection could be made only from amongst
    the candidates whose names featured in the final list
    prepared by the Commission, and placed before the
    State Government.
    7.11. In Deepak Agarwal & Another v. State of Uttar Pradesh &
    Ors.3
    this Court had held that the right to be considered
    for promotion accrues on the date of consideration of
    eligible candidates.4
    3 (2011) 6 SCC 725.
    4 See also Union of India & Ors. v. Krishna Kumar & Ors., 2019 (1) SCALE 691 (para 11);
    and, State of Tripura & Ors. v. Nikhil Ranjan Chakraborty & Ors., (2017) 3 SCC 646 (paras 8
    and 9).
    18
    The relevant extract of the decision is extracted
    hereinbelow for ready reference:
    “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 implies the “rule 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 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 case [(1983) 3 SCC 284 : 1983 SCC
    (L&S) 382] lays down any particular time­frame, within
    which the selection process is to be completed. In the
    present case, consideration for promotion took place after
    the amendment came into operation. Thus, it cannot be
    accepted that any accrued or vested right of the
    appellants has been taken away by the amendment.”
    (emphasis supplied)
    7.12. In the present case, the names of 559 candidates,
    including the contesting Respondents, were merely
    recommended by their respective Departmental
    Authorities under Regulation 6. The recruitment process
    did not proceed any further in accordance with
    Regulations 7, 8, 9 and 10. No final list of selected
    candidates was placed by the Orissa Public Service
    19
    Commission before the State Government for the
    purposes of appointment as against the vacancies of
    2008.
    As such, the contesting Respondents who had
    merely been recommended by their respective
    Departmental Authorities could not be considered to be
    ‘eligible’ for appointment by way of promotion or
    selection under the erstwhile OAS Class II Regulations,
    1978, since the steps set out in the regulations
    mentioned below had not been completed prior to the
    repeal of the old OAS Class II Rules, 1978 and the OAS
    Class II Regulations, 1978:
     Regulation 7 – preparation of a list of suitable
    candidates by the Selection Board;
     Regulation 8 – consultation with the Orissa Public
    Service Commission;
     Regulation 9 – recommendation of the Orissa
    Public Service Commission; and,
    20
     Regulation 10 – preparation and placement of final
    list before the State Government for appointment.
    Thus, the contesting Respondents had not acquired
    an accrued or vested right of selection or promotion to
    OAS Class – II posts in accordance with the OAS Class II
    Rules, 1978 and the OAS Class II Regulations, 1978,
    since their names had never been considered for
    selection or promotion beyond the stage contemplated
    under Regulation 6.
    7.13. Reliance placed by the Counsel for the Respondents on
    Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors.5
    in
    order to submit that the vacancies which had arisen
    under the old Rules would be governed by the old Rules,
    is of no avail.
    A similar submission was rejected by this Court in
    Deepak Agarwal & Another v. State of Uttar Pradesh &
    Ors.6
    . The relevant excerpt of the decision is reproduced
    hereinbelow:
    5 (1983) 3 SCC 284.
    6 (2011) 6 SCC 725.
    21
    “24. We are of the considered opinion that the judgment
    in Y.V. Rangaiah case[(1983) 3 SCC 284 : 1983 SCC
    (L&S) 382] would not be applicable in the facts and
    circumstances of this case. The aforesaid judgment was
    rendered on the interpretation of Rule 4(a)(1)(i) of the
    Andhra Pradesh Registration and Subordinate Service
    Rules, 1976. The aforesaid Rule provided for
    preparation of a panel for the eligible candidates every
    year in the month of September. This was a statutory
    duty cast upon the State. The exercise was required to
    be conducted each year. Thereafter, only promotion
    orders were to be issued. However, no panel had been
    prepared for the year 1976. Subsequently, the Rule was
    amended, which rendered the petitioners therein
    ineligible to be considered for promotion. In these
    circumstances, it was observed by this Court that the
    amendment would not be applicable to the vacancies
    which had arisen prior to the amendment. The
    vacancies which occurred prior to the amended Rules
    would be governed by the old Rules and not the
    amended Rules.
  8. In the present case, there is no statutory duty cast
    upon the respondents to either prepare a yearwise panel
    of the eligible candidates or of the selected candidates
    for promotion. In fact, the proviso to Rule 2 enables the
    State to keep any post unfilled. Therefore, clearly there
    is no statutory duty which the State could be mandated
    to perform under the applicable Rules. The requirement
    to identify the vacancies in a year or to take a decision
    as to how many posts are to be filled under Rule 7
    cannot be equated with not issuing promotion orders to
    the candidates duly selected for promotion. In our
    opinion, the appellants had not acquired any right to be
    considered for promotion. Therefore, it is difficult to
    accept the submissions of Dr. Rajeev Dhavan that the
    vacancies, which had arisen before 17­5­1999 had to be
    filled under the unamended Rules.”
    (emphasis supplied)
    22
    7.14. In the present case the contesting Respondents had
    merely been recommended by the respective
    Departmental Authorities under Regulation 6. The
    recruitment process had not proceeded any further
    thereafter. There was no time­frame prescribed for
    completion of the recruitment process under the
    erstwhile OAS Class – II Rules, 1978 or the OAS Class –
    II Regulations, 1978.
    7.15. In the meanwhile, the State restructured the Orissa
    Administrative Service cadre, and constituted the Orissa
    Revenue Service vide Resolutions dated 28.02.2009 and
    25.05.2009.
    As a part of the re­structuring exercise, the
    erstwhile OAS Class – II posts were abolished, and a
    corresponding new cadre of Group ‘B’ posts in the newly
    constituted Orissa Revenue Service was created.
    7.16. The contesting Respondents have not challenged either
    the abolition of OAS Class – II posts, or the creation of
    the corresponding Orissa Revenue Service Group ‘B’
    posts.
    23
    7.17. To the contrary, some of them have participated in the
    proceedings of the D.P.C. convened on 30.04.2013 for
    recruitment to the newly created Orissa Revenue Service
    Group ‘B’ cadre.
    After being considered, 6 of the contesting
    Respondents were selected, while 1 was kept on the
    Waiting List.
    The State appointed the said Respondents to the
    Orissa Revenue Service Group ‘B’ posts. However, only
    two out of the five contesting Respondents who were
    appointed, joined the posts.
    7.18. Subsequently, during the pendency of the W.P.s,
    another D.P.C. was convened to consider the promotion
    of employees working in the Orissa Revenue Services
    Group ‘B’ posts to Orissa Administrative Service Group A
    (Junior Branch) posts.
    1 contesting Respondent was promoted to the OAS
    Group A (Junior Branch) cadre.
    24
    7.19. The contesting Respondents cannot claim any lien over
    the abolished OAS Class – II posts, which were governed
    by the old OAS Class II Rules, 1978 and OAS Class II
    Regulations, 1978.
    7.20. In this context, reliance may be placed on two decisions
    of this Court in Rajasthan Public Service Commission v.
    Chanan Ram7 and Union of India & Ors. v. Krishna
    Kumar & Ors.8
    .
    In Rajasthan Public Service Commission v. Chanan
    Ram9
    this Court rejected a claim for filing up vacancies
    in posts which no longer existed, after an amendment of
    the extant Rules.
    The relevant excerpt of the decision is reproduced
    hereinbelow for ready reference:
    “14. …Once it is held that the old vacancies were in
    posts which no longer existed after April 1995, there
    remained no occasion to consider whether these old
    vacancies could be filled in by applying earlier rules of
    recruitment to the very same posts…There were no such
    posts after April 1995 in the cadres of the Rajasthan
    Agricultural Marketing Service as seen earlier…
    7 (1998) 4 SCC 202.
    8 2019 (1) SCALE 691.
    9 (1998) 4 SCC 202.
    25
  9. …On the contrary a three­Judge Bench judgment of
    this Court in the case of Jai Singh Dalal v. State of
    Haryana [1993 Supp (2) SCC 600 : 1993 SCC (L&S) 846
    : (1993) 24 ATC 788] would squarely get attracted on
    the facts of the present case. A.M. Ahmadi J., speaking
    for the three­Judge Bench in para 7 of the Report
    relying on an earlier judgment of this Court in case
    of State of Haryana v. Subash Chander Marwaha [(1974)
    3 SCC 220 : 1973 SCC (L&S) 488] laid down that when
    the special process of recruitment had not been
    finalised and culminated into select list the candidate
    did not have any right to appointment. In this
    connection it was observed that the recruitment process
    could be stopped by the Government at any time before
    a candidate has been appointed. A candidate has no
    vested right to get the process completed and at the
    most the Government could be required to justify its
    action on the touchstone of Article 14 of the
    Constitution.”
    (emphasis supplied)
    In Union of India & Ors. v. Krishna Kumar & Ors.10
    this Court was dealing with a similar situation of cadre
    restructuring.
    The relevant extract of the decision is reproduced
    hereinbelow for ready reference:
    “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 result of the restructuring
    10 2019 (1) SCALE 691.
    26
    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
    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.”
    (emphasis supplied)
    7.21. The submission of the contesting Respondents that their
    case be considered at par with the candidates appointed
    by way of selection and promotion as against the
    vacancies for the years 2001 to 2005 is not tenable.
    The appointments of persons as against the
    vacancies for the years 2001 to 2005 were made vide two
    Notifications dated December 7, 2010, which were
    issued prior to the repeal of the old OAS Class II Rules,
    1978 and the OAS Class II Regulations, 1978.
    7.22. Finally, the High Court had relied upon the decision in
    Mukti Ranjan Acharya & Ors. v. State of Orissa & Ors.11
    11 2012 (II) OLR 61.
    27
    [W.P. (C) No. 19827/2009; Decided on 16.04.2012] to
    hold that promotions could be given under the repealed
    OAS Class II Rules, 1978 and the OAS Class II
    Regulations, 1978. The S.L.P. against this judgment had
    been simply dismissed. The Counsel for the contesting
    Respondents prayed for dismissal of the present Civil
    Appeals by submitting that the said decision had been
    affirmed by this Court vide Order dated 28.09.2012.
    It is a well­settled principle of law emerging from a
    catena of decisions of this Court, including Supreme
    Court Employees’ Welfare Association v. Union of India &
    Anr.12 and State of Punjab v. Davinder Pal Singh
    Bhullar13, that the dismissal of a S.L.P. in limine simply
    implies that the case before this Court was not
    considered worthy of examination for a reason, which
    may be other than the merits of the case. Such in limine
    dismissal at the threshold without giving any detailed
    reasons, does not constitute any declaration of law or a
    binding precedent under Article 141 of the Constitution.
    12 (1989) 1 SCC 187 (paras 22 and 23).
    13 (2011) 14 SCC 770 (paras 112 and 113).
    28
  10. On the aforesaid grounds, we hold that the Judgment of the
    Division Bench is liable to be set aside since the contesting
    Respondents did not have a vested or fructified right of
    promotion to OAS Class II posts which had arisen during the
    recruitment year 2008. The names of the contesting
    Respondents were merely recommended for consideration. In
    the meanwhile, in 2009 the State had re­structured the cadre,
    and abolished the OAS Class II cadre. The re­constituted cadre
    viz. the Orissa Revenue Service Group ‘B’ cadre came in its
    place. Hence, the direction of the Division Bench to appoint
    the contesting Respondents in the vacancies which had
    occurred in the abolished cadre, in accordance with the
    repealed 1978 Rules, was contrary to law, and liable to be set
    aside.
    In view of the aforesaid findings, the present Civil
    Appeals are allowed. The common impugned Judgment and
    Order dated 30.04.2018 passed by the Orissa High Court in
    W.P. (C) Nos. 14831 of 2013, 18749 of 2012, 6720 of 2013,
    25961 of 2017 and 9200 of 2016 as well as the impugned
    Orders dated 08.08.2018 and 10.08.2018 passed by the Orissa
    29
    High Court in W.P. (C) Nos. 7383 and 14665/2018 are set
    aside.
    Pending Interlocutory Applications, if any, are disposed
    of in terms of the Judgment.
    Ordered accordingly.
    …..……………………………J.
    (UDAY UMESH LALIT)
    ..….…………………………..J.
    (INDU MALHOTRA)
    New Delhi
    May 6, 2019.
    30