The Supreme Court has held that employees working on a higher post merely on an officiating basis do not acquire a vested right to be considered for regular promotion under superseded recruitment rules.
The Bench of Justice Prashant Kumar Mishra and Justice Ujjal Bhuyan allowed appeals filed by Bharat Sanchar Nigam Limited (BSNL) and set aside common judgments of the High Court that had directed consideration of several employees for promotion to the post of Rajbhasha Adhikari without requiring them to clear the test prescribed under the BSNL Rajbhasha Adhikari Recruitment Rules, 2005.
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The private respondents were originally appointed as Hindi Translators in different grades and were working on an officiating basis as Assistant Director (Official Language), a post subsequently renamed Rajbhasha Adhikari.
The dispute arose from changes made over time to the method of promotion to the higher post. The Department of Telecommunications had constituted a separate wing to promote the use of Hindi and created the posts of Hindi Translator Grades I, II and III, with Hindi Officer as the next promotional post.
An administrative order dated April 28, 1994 stipulated that Hindi Translators in Grades I, II and III would become eligible for promotion as Hindi Officer after completing three, five and eight years of service, respectively. The employees, however, were not granted regular promotion under those administrative instructions.
The Department later framed the Assistant Director (Official Language) Recruitment Rules, 2002. Under those rules, the post of Hindi Officer was redesignated as Assistant Director (Official Language). The rules contemplated filling the 120 existing vacancies by promotion of eligible Hindi Translators, irrespective of the prescribed ratio between direct recruitment and promotion.
According to the judgment, however, the 2002 Rules were never brought into operation and the employees did not receive promotion under them.
BSNL subsequently enacted the Rajbhasha Adhikari Recruitment Rules, 2005. These rules renamed the post as Rajbhasha Adhikari and required eligible employees to clear a limited internal competitive examination for promotion. They also provided that vacancies could be diverted to direct recruitment if an adequate number of candidates were not available through promotion.
The employees challenged the 2005 Rules before the High Court.
The Single Judge allowed the employees’ writ petitions and directed BSNL to consider them for promotion to Rajbhasha Adhikari without reference to the test introduced by the 2005 Rules. Their cases were ordered to be considered on the basis of rights said to have accrued under the earlier rules.
The Division Bench affirmed that decision, prompting BSNL to approach the Supreme Court.
Before the apex court, BSNL argued that the dispute was directly covered by the Supreme Court’s decision in Mishri Lal. It also contended that the High Court’s direction to apply the rules prevailing when the vacancies arose was inconsistent with the later ruling in State of Himachal Pradesh v. Raj Kumar.
The employees, on the other hand, relied on Medini C. They argued that, because they had already been placed on the higher post on an officiating basis before the 2005 Rules came into force, their claims should be governed by the earlier rules.
The Supreme Court noted that all the writ petitioners were working against the post of Assistant Director (Official Language), or Rajbhasha Adhikari, only on an officiating basis. This position had also been admitted in BSNL’s counter-affidavit before the High Court.
The Court emphasised that the employees had never been promoted to the post either regularly or even on an ad hoc basis.
Examining Mishri Lal, the Bench observed that the employees in that case had similarly been appointed to the higher post purely on a local officiating basis under powers delegated to the heads of telecom circles through the 1994 administrative instructions. Since they were neither regularly selected nor appointed on the recommendation of a Departmental Promotion Committee approved by the Union Public Service Commission, they acquired no vested right to promotion under the 2002 Rules.
The Supreme Court had also upheld in Mishri Lal the policy change introduced through the 2005 Rules, under which the 120 posts were classified as executive posts and were required to be filled through a limited internal competitive examination.
Applying that principle, the Bench held that employees working merely on an officiating basis could not insist that the posts be filled by promoting them under the previous regime.
The Court rejected the employees’ reliance on Medini C., finding a material difference between the two sets of cases.
It explained that the claimants in Medini C. had been provisionally promoted before the relevant rules changed and had asserted their right to regularisation under the one-time measure expressly contained in Rule 10(3) of the 2002 Rules. Their vested claims had already been pursued before the 2005 Rules were issued.
In contrast, the respondents in the present appeals occupied the higher post only under a local officiating arrangement. Their position was therefore comparable to that of the employees in Mishri Lal, who were denied relief because an officiating assignment did not confer a vested promotional right.
The Bench said the conspicuous distinguishing factor was that the present employees, like those in Mishri Lal, were only officiating as Rajbhasha Adhikari, whereas the employees whose claims succeeded in Medini C. had been provisionally promoted.
Consequently, the Court held that Mishri Lal squarely governed the controversy.
The Supreme Court separately rejected the High Court’s premise that vacancies arising before the introduction of the 2005 Rules necessarily had to be filled under the earlier rules.
Relying on State of Himachal Pradesh v. Raj Kumar, the Bench reiterated that there is no universally applicable rule requiring every vacancy to be filled according to the law in force on the date on which the vacancy arose.
An eligible employee’s right is to be considered in accordance with the rules existing on the date when candidates are actually considered, the Court observed. The right does not crystallise merely because a vacancy arose when an earlier set of rules was in force.
The judgment further reiterated that the government may consciously decide not to fill vacancies that arose before an amendment to recruitment rules. An employee does not obtain a vested right to consideration under repealed rules merely from the existence of such a vacancy, particularly where the cadre or recruitment process has been restructured.
The Court added that the relevant policy decision must nevertheless be fair, reasonable and capable of satisfying the requirements of Article 14 of the Constitution.
The Supreme Court concluded that the High Court could not have directed BSNL to consider the respondents for promotion under the rules existing immediately before the enactment of the 2005 Rules.
The Bench accordingly set aside the common judgments of the High Court and allowed BSNL’s appeals. All pending applications were also disposed of.
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