State Of Odisha vs Sreepati Ranjan Dash
- Court
- Supreme Court
REPORTABLE
2026 INSC 505
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.13121 OF 2025
STATE OF ODISHA & ORS. ……APPELLANTS
VERSUS
SREEPATI RANJAN DASH …..RESPONDENT
WITH
CIVIL APPEAL NO.13122 OF 2025
STATE OF ODISHA & ORS. ……APPELLANTS
VERSUS
ADITYA BHANJAN SAHOO …..RESPONDENT
J U D G M E N T
DIPANKAR DATTA, J.
T HE A PPEALS
1. These two appeals, by special leave, at the instance of the common
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appellant — State of Odisha — are directed against the common
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judgment and order dated 7 November, 2025 passed by a Division
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Bench of the High Court of Orissa , dismissing two intra-court appeals
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that the State had carried from final orders dated 24 February, 2023
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and 28 February, 2023 of a Single Judge allowing the writ petitions
Signature Not Verified
1
State
2
impugned order
3
High Court
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W.A. No.658 of 2023 and W.A. No.744 of 2023
5
W.P.(C) No.35645 of 2021 and W.P.(C) No.41042 of 2021
Digitally signed by
JATINDER KAUR
Date: 2026.05.18
17:51:33 IST
Reason:
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of the two respondents before this Court, viz. Sreepati Ranjan Dash
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and Aditya Bhanjan Sahoo , finding no infirmity therein.
F ACTUAL M ATRIX
2. The basic facts giving rise to the impugned orders, though
uncontested, have a history of their own. To the extent germane for
disposal of the present appeals, the same are adverted to briefly
hereafter.
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a. On 17 November 1981, the Commerce & Transport (Transport)
Department, Government of Odisha issued an executive instruction
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(bearing No.17315) for recruitment to/filling up 4 posts of
Assistant Regional Transport Officer for Sambalpur, Koraput,
Sundargarh and Mayurbhanj regions. The post, which was a
gazetted post, had been created for collection and assessment of
Motor Vehicle Tax and Passenger Tax. This instruction was to the
Transport Commissioner, Orissa, and declaring him as the authority
competent to make appointments on such post. For promotion to
the post of Assistant Regional Transport Officer, a Grade I Assistant
(Senior Assistant) with 5 years’ service as such (Grade I Assistant)
was eligible. Promotion was to be based on merit and suitability.
Pending finalisation of the recruitment rules, selection was to be
made on the basis of the above principles. These instructions held
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the field with modifications effected on 23 August, 1991 and 04
6
Dash
7
Sahoo
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Executive Instructions
2
July, 1995.
b. In the absence of any rule, the posts of Assistant Regional Transport
Officer were being filled by selection from different cadres under
the administrative control of the Transport Department in terms of
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the Executive Instructions. On 16 March, 2013, both Dash and
Sahoo were appointed as Junior Assistant. Dash and Sahoo joined
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duty on 18 March, 2013. On 10 June, 2016, both of them were
promoted to the post of Senior Assistant, whereupon they joined on
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13 June, 2016.
c. In April, 2017, all border check gates were abolished for free
passage of inter-State movement of vehicles on the advice of the
Central Government. This required adjustment of the posts of
Assistant Regional Transport Officer in the different Regional
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Transport Offices. On 17 October, 2017, vide a Resolution issued
by the Commerce & Transport (Transport) Department,
Government of Odisha, the officers – Assistant Regional Transport
Officer, Additional Regional Transport Officers (General) and
Regional Transport Officers (General) – whose services till now had
been governed by Executive Instructions were now made a part of
the Odisha Transport Service. The Odisha Transport Service cadre
now consisted of Assistant Regional Transport Officer, Additional
Regional Transport Officer (General) and Regional Transport Officer
(General). The post of Assistant Regional Transport Officer was
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restructured from Group C to Group B w.e.f. 17 October, 2017 and
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appointments to this post were now to be made by the Government
of Odisha. The pay of this post was upgraded from level 9 of Pay
Matrix under Odisha Revised Scale of Pay Rules, 2017 to level 10.
Pending finalisation of the cadre rules, recruitment to the post of
Assistant Regional Transport Officer was made by way of selection
from different posts such as Senior Assistant of Secretariat in the
Transport Department, Senior Assistant of the State Transport
Authority, Odisha and other non-ministerial posts under the State
Transport/Regional Transport officers.
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d. On 24 January, 2019, the Government of Orisha, in the General
Administration and Public Grievance Department, restructured the
Odisha Ministerial Services (Assistant and Section Officers) cadre in
the offices of the Heads of Department and the Odisha Heads of
Departments Establishment Officers cadre by a resolution, in the
manner as follows:
- The Junior Assistant was the base level post.
- The post of Senior Assistant was re-designated as Assistant
Section Officer (ASO) with existing level of pay, i.e. Level 09 in
Pay Matrix as per Odisha Revised Scale of Pay (ORSP) Rules
2017.
- The posts of Section Officer and Establishment Officer were
created.
- The post of Senior Establishment Officer was re-designated as
Administrative Officer.
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The post of Assistant Section Officer (ASO) was to be filled up by
promotion from eligible Junior Assistants and the post of Section
Officers would be filled up from eligible Assistant Section Officers.
The posts of Junior Assistant, Assistant Section Officer and Section
Officer were under the administrative control of the respective
Heads of Departments. The posts of Establishment Officer,
Administrative Officer and Senior Administrative Officer were to be
filled by the Home Department.
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e. Significantly, there is no challenge to this resolution dated 24
January, 2019.
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f. On 16 February, 2019, Dash and Sahoo were redesignated as
Assistant Section Officer pursuant to the said resolution and they
continued to discharge their duties on regular basis.
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g. On 16 June, 2021, Sahoo submitted a representation to the
Government of Odisha for promotion to the post of Assistant
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Regional Transport Officer under the Executive Instructions. On 24
June, 2021, the Additional Commissioner Transport requested the
FA-cum-Additional Secretary to the Government of Odisha,
Commerce & Transport (Transport) Department, to convene a
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Departmental Promotion Committee to fill up 16 vacant posts of
Assistant Regional Transport Officer lying vacant, as Dash and
Sahoo as well as one Smt. Ritushree Baral had completed five years
of regular service in the post of Senior Assistant Officer and were
9
DPC
5
eligible for promotion as Assistant Regional Transport Officers.
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h. Dash filed a writ petition before the High Court seeking a direction
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to the authorities to consider his representation. On 13 July, 2021,
a Single Judge of the High Court disposed of the writ petition of
Dash directing the appellants to consider the representation and
pass orders within three months.
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i. On 26 July, 2021, the Government of Odisha rejected the proposal
for holding of DPC to fill up the post of Assistant Regional Transport
Officer.
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j. On 23 August, 2021, Sahoo invoked the writ jurisdiction of the
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High Court seeking quashing of the order dated 26 July, 2021
whereby the proposal for holding DPC was rejected. The High Court
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disposed of the writ petition on 23 August, 2021 by setting aside
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the order dated 26 July, 2021 as it was passed without recording
any reason. The matter was remanded to the Government of Odisha
for reconsideration to hold DPC to fill up the vacant posts of
Assistant Regional Transport Officer and to pass a reasoned order.
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k. On 3 September, 2021, the Transport Commissioner referred the
names of eligible Assistant Section Officers including the names of
both Dash and Sahoo for promotion to the post of Assistant
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Regional Transport Officer with the request to hold a DPC. On 11
October, 2021, the Commerce and Transport (Transport)
Department, Government of Odisha rejected the recommendation
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W.P.(C) No.19531 of 2021
6
of the State Transport Authority, Odisha to convene the DPC. It was
held inter alia that the post of Assistant Regional Transport Officer
was a selection and ex-cadre post in the past. There was sufficient
scope for promotion in the respondents’ cadre like Section Officer,
Establishment Officer, Administrative Officer and Senior
Administrative Officer. The post of Assistant Regional Transport
Officer was not in the promotional hierarchy, and the Executive
Instructions were not applicable.
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l. On 11 November, 2021, Dash filed another writ petition before
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the High Cout challenging the rejection order dated 11 October,
2021.
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m. Similarly, on 10 December, 2021, the Government of Odisha in the
Commerce and Transport (Transport) Department, rejected the
recommendation of the State Transport Authority, Odisha to
convene the DPC.
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n. Sahoo then invoked the writ jurisdiction on 24 December, 2021,
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challenging the rejection order dated 10 December, 2021.
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o. On 5 January, 2022, the Odisha Transport Service (Method of
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Recruitment and Conditions of Service) Rules, 2021 came to be
framed in exercise of power conferred by the proviso to Article 309
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of the Constitution of India , in consultation with the Odisha Public
11
W.P.(C) No.35645 of 2021
12
W.P.(C) No.41042 of 2021
13
2021 Rules
14
Constitution
7
15
Service Commission .
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p. On 30 December, 2022, the OPSC issued an advertisement for
filling up Group B posts in the Orissa Transport Service Cadre
including the post of Assistant Regional Transport Officer.
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q. Close on the heels thereof, on 24 February, 2023, the Single Judge
allowed the writ petition of Dash by holding as under:
29. In view of the aforesaid analysis of fact as well as law and
upon a conspectus of the materials placed before this Court and
upon hearing the learned counsel appearing for the respective
parties, this court is of the considered view that the impugned
order under Annexure-9 is unsustainable in law and the same is
here by quashed. Further, the opposite party No.2 i.e. The
Transport Commissioner-cum-Chairman STA, Odisha is directed
to immediately convene the DPC and consider the case of the
petitioner along with two other persons found eligible by him
vide his letter dated 03.09.2021 under Annexure-7 in the light
of executive instruction dated 17.11.1981 and take a decision
within a period of four weeks from the date of production of the
copy of the judgement. It is further directed that in the event,
the opposite parties are planning to fill up the vacant post of
ARTO in view of the new Rule 2021, which was notified on
03.01.2022, they are free to do so, however, three posts of
ARTO as has been recommended under Annexure-7 by the
Transport Commissioner shall not be filled up till a final decision
is taken by the opposite party No.2 as has been directed
hereinabove. In the event, any advertisement Has been
published to fill up such posts, suitable modification be made in
the said advertisement by way of corrigendum forthwith.
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r. In view of the Single Judge’s order dated 24 February, 2023 in
W.P.(C) No.35645 of 2021, W.P.(C) No.41042 of 2021 of Sahoo also
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came to be disposed of on 28 February, 2023 by holding as under:
2. In view of the judgment passed in W.P.(C) No.35645 of 2021
dated 23.02.2023, the present writ petition is disposed of
accordingly.
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OPSC
8
16 th
s. The State preferred an appeal on 13 April, 2023 challenging the
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Single Judge’s order. On 7 November, 2023, the Division Bench
dismissed the appeal and upheld the Single Judge’s order by the
impugned judgment.
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t. On 23 February, 2024, both Dash and Sahoo instituted contempt
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petitions whereupon the High Court granted time of 4 (four)
weeks for securing compliance of its order. Immediately thereafter,
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on 23 March, 2024, the State invoked this Court’s jurisdiction by
presenting the special leave petitions, whereupon notice came to
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be issued on 22 April, 2024 by this Court and the impugned orders
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were stayed. On 2 August, 2024, this Court in I.A. No.148567 of
2024 directed that any appointment that is made in the
interregnum would be subject to the outcome of the special leave
petitions.
RGUMENTS N EHALF F HE PPELLANTS
A O B O T A
3. Learned counsel for the State argued as follows:
a. The High Court erred in directing the Transport Commissioner to
convene a DPC for promotion to the post of Assistant Regional
Transport Officer, despite the fact that the appointing authority for
the said post is the Government of Odisha and the Transport
Commissioner has no power or jurisdiction to convene such DPC.
b. After the restructuring of the post of Assistant Regional Transport
16
Writ Appeal No.658 of 2023
17
CONTC No.1111 & 1110 of 2024
9
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Officer vide resolution dated 17 October, 2017, the appointing
authority and the power to convene DPC shifted from the Transport
Commissioner to the Government of Odisha, rendering reliance on
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the earlier Executive Instruction dated 17 November, 1981 legally
untenable.
c. Recommendation of the Transport Commissioner could not confer
any vested or enforceable right of promotion upon Dash and Sahoo,
particularly when the State Government is the competent
appointing authority and had passed reasoned orders rejecting their
claim.
d. Upon restructuring of the cadre, Dash and Sahoo ceased to be
eligible for promotion to the post of Assistant Regional Transport
Officer, as the said post no longer forms part of the promotional
hierarchy of the cadre, which instead provides internal promotional
avenues.
e. The directions of the High Court are contrary to the 2021 Rules,
under which the post of Assistant Regional Transport Officer is to be
filled only through competitive examination, and earlier instructions
including the Executive Instructions stand superseded.
f. The existence of vacancies does not confer a right to promotion,
and an employee is entitled only to consideration for promotion in
accordance with the rules in force when the competent authority
decides to undertake such consideration, which had not occurred
prior to the 2021 Rules coming into effect.
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g. The impugned order as well as the orders of the Single Judge are
contrary to the judgment of this Court in the case of State of H.P.
18
v. Raj Kumar .
A RGUMENTS O N B EHALF O F T HE R ESPONDENTS
4. Learned counsel appearing for Dash submitted as follows:
a. The date of consideration and rejection of Dash’s claim for
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promotion was 11 October, 2021.
b. Respondents were admittedly eligible as per available vacancies and
gradation list.
c. The Executive Instructions were still in force till the 2021 Rules
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came into force on 5 January, 2022.
d. Executive instructions have statutory force under Article 162 of the
Constitution in the absence of recruitment rules under Article 309
proviso.
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e. Relying on Dr. Sharmad vs. State of Kerala , it was contended
that Executive Instructions bind the respondents.
f. Availability of alternate channels of promotion cannot be denied in
the absence of Cadre Rules and specific exclusion in cadre
restructuring. An eligible officer can opt for promotion to a post
when opportunity comes earlier.
g. Mere change in designation without any change in role or function
is of no consequence when considered for promotion.
18
(2023) 3 SCC 773
19
2025 SCC OnLine SC 71
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h. Even after re-designation, Assistant Section Officer remained at
Level 09 of the Pay Matrix while Assistant Regional Transport Officer
was upgraded to Level 10; as such promotion from Level 09 to Level
10 is a natural progression.
i. Decision not to fill up vacancies must be taken for bona fide reasons
supported by appropriate reasons ( Shankarshan Dash vs. Union
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of India & Ors ).
j. Raj Kumar (supra) will not apply because the judgment came on
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20 March, 2022 and will have prospective effect and neither the
judgment nor the recruitment rules were in force when the case of
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the Dash was considered on 11 October, 2021.
5. Learned counsel appearing for Sahoo adopted the submissions made
on behalf of Dash.
A NALYSIS
6. The common grievance of Dash and Sahoo was that despite being
eligible for promotion to the post of Assistant Regional Transport
Officer, they were not promoted to such post for which they
approached the High Court by invoking its writ jurisdiction. This was
despite a previous order of the High Court directing consideration of
the representation of Sahoo.
7. A Single Judge of the High Court had granted such relief to both, Sahoo
and Dash, which was upheld by the Division Bench, directing that the
20
(1991) 3 SCC 47 (para 7)
12
DPC be convened and their promotion be considered.
8. At the outset, a glaring fallacy discernible from the order impugned
before us must be noticed. Despite the learned counsel for the State
having cited a recent decision of this Court in Raj Kumar (supra)
before the High Court, the Division Bench cursorily held that it would
not be applicable. The relevant observations of the Division Bench read
as under:
14. Taking into consideration the position that the Division Bench
does not sit in re-appreciating the Judgment of the learned Single
Judge in an intra-Court appeal on finding of fact, unless it is
demonstrated by the appellants that the conclusion on set of facts
based on material on record arrived at by the learned Single Judge
is perverse. Thus, this Court does not feel it expedient to disturb
the findings settled by the learned Single Judge. Furthermore, the
ratio of Raj Kumar (supra) is not applicable on the factual matrix
discussed by the learned Single Judge.
(emphasis ours)
9. Evidently, Raj Kumar (supra) was not cited before the Single Judge
though the said decision came to be delivered by a bench of 3 judges
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on 20 May, 2022, thus preceding reservation of judgment by the
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Single Judge on 10 November, 2022.
10. Be that as it may, when the State in its appeals before the Division
Bench, did bring the decision in Raj Kumar (supra) to its notice, it
came to be summarily rejected as noticed above.
11. This assumes primacy for two reasons: first , the Single Judge while
arriving at the conclusion that it did, did not refer to any decision of
this Court or any court for that matter. Particularly so, when there has
been a long line of settled judgments of this Court on the point of law.
Secondly , when a precedent is cited before the Division Bench, it was
13
imperative for the Bench to take notice of the fact that the same not
having been cited before the Single Judge, it deserved due
consideration as to its applicability or the lack of it. Instead, the
Division Bench proceeded to dismiss the appeals on the ground that
an intra-court appellate bench does not interfere with the order of a
Single Judge unless perversity in regard to findings of fact are shown.
12. We are mindful of the limited scope of interference in intra-court
appeal jurisdiction of a high court. The Division Bench, albeit correctly
discussed the limited scope of intra-court appeals by relying on the
21
decisions in Union of Inda v. Arulmozhi Iniarasu , N.
22
Ramachandra Reddy v. State of Telangana , Management of
23
Narendra & Company v. Workmen of Narendra & Company , it
requires no reiteration that the ratio laid down in a precedent must
hold good in the set of facts before the court. However, how or why
the facts of Raj Kumar (supra) were different from the facts at hand
and the law laid down therein had no applicability, was a question left
lingering in the air.
13. Having held thus, we now proceed to see whether Raj Kumar (supra)
has any application in the present facts. The proposition of law laid
down in Raj Kumar (supra) and the decisive stroke given therein
being necessary for the adjudication of the present matter, are
reproduced hereunder:
21
(2011) 7 SCC 397
22
(2019) 11 SCR 792
23
(2016) 3 SCC 340
14
82. A review of the fifteen cases that have
distinguished Rangaiah [ Y.V. Rangaiah v. J. Sreenivasa Rao ,
(1983) 3 SCC 284 : 1983 SCC (L&S) 382] 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 as under:
82.1. 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 case must be understood in the
context of the rules involved therein. [ Deepak Agarwal v. State of
U.P. , (2011) 6 SCC 725, para 26; Union of India v. Krishna Kumar ,
(2019) 4 SCC 319, para 10].
82.2. It is now a settled proposition of law that a candidate has a
right to be considered in the light of the existing rules, which
implies the “rule in force” as on the date consideration takes place.
The right to be considered for promotion occurs on the date of
consideration of the eligible candidates. [ Deepak Agarwal v. State
of U.P. , Union of India v. Krishna Kumar ].
82.3. 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 in view of the policy decision taken by the Government . [ K.
Ramulu v. S. Suryaprakash Rao , (1997) 3 SCC 59, paras 12 &
13; Shyama Charan Dash v. State of Orissa , (2003) 4 SCC 218,
para 9; State of Punjab v. Arun Kumar Aggarwal , (2007) 10 SCC
402, para 38; Deepak Agarwal v. State of U.P. , (2011) 6 SCC 725,
para 28]. 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. [ G.
Venkateshwara Rao v. Union of India , (1999) 8 SCC 455, para 4].
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. [ Rajasthan Public Service
Commission v. Chanan Ram , (1998) 4 SCC 202, para 15; K.
Ramulu v. S. Suryaprakash Rao , (1997) 3 SCC 59, para 15].
82.4. 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. [ Delhi Judicial
Services Assn. v. Delhi High Court , (2001) 5 SCC 145, para 5].
82.5. 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
[ Deepak Agarwal v. State of U.P. , (2011) 6 SCC 725, para 25].
83. The above-referred observations made in the fifteen decisions
that have distinguished Rangaiah 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
15
when they arose. This only implies that decision in Rangaiah is
confined to the facts of that case.
84. The decision in Deepak Agarwal v. State of U.P. is a complete
departure from the principle in Rangaiah inasmuch as the Court
has held that a candidate has a right to be considered in the light
of the existing rule . That is the rule in force on the date the
consideration takes place. This enunciation is followed in many
subsequent decisions including that of Union of India v. Krishna
Kumar [ Union of India v. Krishna Kumar , (2019) 4 SCC 319]. In
fact, in Krishna Kumar Court held that there is only a “right to be
considered for promotion in accordance with rules which prevail on
the date on which consideration for promotion takes place ”.
85. The consistent findings in these fifteen decisions
that Rangaiah 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 on which
they arose, compels us 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, as we have
indicated hereinabove. For clarity and certainty, it is, therefore,
necessary for us to hold:
85.1. The statement in Y.V. 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 under Part XIV of the Constitution. It is hereby overruled.
85.2. The rights and obligations of persons serving the Union and
the States are to be sourced from the rules governing the services.
(italics in original)
(underlining for emphasis ours)
14. We are pained to observe that a bare perusal of the law laid down in
Raj Kumar (supra) would have set the entire controversy at rest,
particularly when the portion extracted above was set out in the
arguments on behalf of the State. Reliance placed by learned counsel
for the State on a precedent, having a bearing on the issue, ought to
receive due judicial consideration. Mere reference of the precedent in
the passing without engaging with it in the analysis is not sufficient
compliance with the duty to assign reasons.
16
15. This Court has observed that an employee does not have a vested right
to be promoted nor does he possess a legitimate expectation to be
24
promoted ( See: Haryana SEB v. Gulshan Lal ). The limited right that
an employee can legitimately claim is for consideration of his
candidature. However, should the government, being the appointing
authority choose, in its wisdom, to not fill up vacancies by promotion,
especially when there is a change in cadre and restructuring of posts,
it cannot be compelled to carry out the appointments.
16. In Raj Kumar (supra) this Court, speaking through P.S. Narasimha,
J., overruled the law laid down in Y.V. Rangaiah (supra) which had
held the field for nearly four decades though it was consistently
doubted in prior precedents.
17. If one were to analyse the law laid down in paragraph 82 of Raj Kumar
(supra) in the present set of facts, all the requirements set out therein
are squarely covered. The Government, in the present case, chose not
to fill the posts of Assistant Regional Transport Officer. This was in view
of restructuring of the cadre and to enforce the 2021 Rules, which is
in conformity with the law. The proposition that vacancies must be
filled up by promotion in accordance with the rules which existed on
the date such vacancies arose has also been negatived. Thus, the
decision of the Government to fill up these vacancies in accordance
with the 2021 Rules cannot be faulted. The order impugned, though
without reference to, proceeded on the law laid down in Y.V.
24
(2009) 12 SCC 231
17
Rangaiah (supra), which expressly stood overruled by Raj Kumar
(supra).
18. Having observed thus, the 2021 Rules also must be adverted to,
particularly in consonance with the Executive Instructions. The
Executive Instructions, under which the respondents claimed
appointment, were valid and operative till the enactment of the 2021
Rules. The Executive Instructions provided the Transport
Commissioner as the authority competent to make appointments to
the post of Assistant Regional Transport Officer. Paragraph 4 of these
instructions assume significance and is extracted hereunder:
4. Pending finalization of the cadre rules for recruitment to the
posts of Asst. Regional Transport Officer, selections may be made
according to the above principles through the Departmental
Promotion Committee whose composition will be as follows:
Transport Commissioner …Chairman
Deputy Transport Commissioner …Member
Deputy Secretary, Transport …Member
Secretary, State Transport Authority …Member-Secretary
(emphasis ours)
19. Thus, paragraph 4 makes it clear as crystal that the instructions were
put in force as a pro-tem arrangement till the finalization of the cadre
rules, which were brought in force by way of the 2021 Rules. Intent of
paragraph 4 of the Executive Instructions stood fulfilled by framing of
the 2021 Rules, in exercise of the power conferred by the proviso to
Article 309 of the Constitution.
20. Notably, the 2021 Rules did not specifically repeal the Executive
Instructions; however, the preamble did recite supersession of all
previous rules, instructions and orders. On this basis, the Division
18
Bench of the High Court, proceeded to interpret the preamble to the
2021 Rules. For convenience, the preamble is reproduced as under:
No. 45-TRN-FE-MISC-0044-2017/T.─ In exercise of the powers
conferred by the proviso to Article 309 of the Constitution of India
and in supersession of all rules framed, instructions or orders
issued in this respect except as respect things done or omitted to
be done before such supersession, the Governor of Odisha hereby
makes the following rules to regulate the method of recruitment
and conditions of service of persons appointed to the Odisha
Transport Services, namely:─
21. The Division Bench proceeded to interpret application of the term
‘ supersession’ and the expression ‘ except as respect things done or
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omitted to be done before such supersession’ . It referred to the 5
edition of Black’s Law Dictionary as well as Union of India v. Glaxo
25
India Ltd. to hold it akin to repealing and replacing the Executive
Instructions.
22. To that extent, there is no quarrel. The 2021 Rules superseded the
Executive Instructions.
23. However, what is saved , or in this case exempted , is an act done or
omitted to be done before such supersession. The Division Bench
proceeded, in our view erroneously, to hold that the action for
convening the DPC would be saved by the 2021 Rules.
24. It would be plausible to accept such a reasoning if the appointment to
the post of Assistant Regional Transport Officer had already been
made. Such appointment would not be displaced in view of the 2021
Rules and would stand saved. On the contrary, in the present facts,
25
(2011) 4 SCR 50
19
not only were the appointments not made, even the DPC was not
constituted. In such a case, there is no act for the 2021 Rules to save
it from ‘supersession’. An act which was permissible and, in fact, done
in pursuance of the Executive Instructions and found inconsistent with
the 2021 Rules could certainly be saved, if so warranted. However, the
Transport Commissioner’s letter, requesting that the DPC be convened
cannot, by any stretch of imagination, be construed as an act done
under the Executive Instructions. The preliminary consideration ought
to have been whether or not the request for the DPC to be convened
was an act completed under the Executive Instructions. Had it done
so, the question of interpreting the term ‘supersession’ would not arise
at all. The High Court, in a classic instance, appears to have missed
the woods for the trees.
25. That apart, rules framed under Article 309 would, even otherwise,
supersede any instructions, circular, memorandum issued by a
department, as held by this Court in Union of India v.
26
Somasundaram Viswanath . We consider it apt to reproduce the
following passage:
6. It is well-settled that the norms regarding recruitment and
promotion of officers belonging to the Civil Services can be laid
down either by a law made by the appropriate legislature or by
rules made under the proviso to Article 309 of the Constitution of
India or by means of executive instructions issued under Article 73
of the Constitution of India in the case of Civil Services under the
Union of India and under Article 162 of the Constitution of India in
the case of Civil Services under the State Governments. If there is
a conflict between the executive instructions and the rules made
under the proviso to Article 309 of the Constitution of India, the
rules made under proviso to Article 309 of the Constitution of India
26
(1989) 1 SCC 175
20
prevail, and if there is a conflict between the rules made under the
proviso to Article 309 of the Constitution of India and the law made
by the appropriate legislature the law made by the appropriate
legislature prevails. …
(emphasis ours)
26. Furthermore, the post of Assistant Regional Transport Officer was not
a promotional post but a selection post. The difference, though
seemingly narrow, is significant. In case of promotion, if the service
rules in force confer an automatic right upon the individual to be
promoted, in such case one may have a right to be promoted. In the
absence thereof, an employee, at best, has a right to be considered
for promotion, strictly in accordance with service rules [see: H.P. SEB
27
v. K.R. Gulati ].
27. The Government as the employer, in its wisdom, chose to select and
appoint Assistant Regional Transport Officers by way of direct
recruitment through combined competitive recruitment examination
conducted by the OPSC. In such case, Dash and Sahoo would have no
right to be appointed or promoted to such post other than in a manner
consistent with the 2021 Rules. A profitable reference may be drawn
to a decision of this Court in Sant Ram Sharma v. State of
28
Rajasthan where it was held thus:
6. … If these three posts are selection posts it is manifest that the
State of Rajasthan is not bound to promote the petitioner merely
because he stood first in the Gradation List. The circumstance that
these posts are classed as ‘Selection Grade Posts’ itself suggests
that promotion to these posts is not automatic being made only on
the basis of ranking in the Gradation List but the question of merit
enters in promotion to selection posts. In our opinion, the
respondents are right in their contention that the ranking or
27
(1998) 2 SCC 624
28
AIR 1967 SC 1910
21
position in the Gradation List does not confer any right on the
petitioner to be promoted to selection posts and that it is a well-
established rule that promotion to selection grades or selection
posts is to be based primarily on merit and not on seniority alone.
The principle is that when the claims of officers to selection posts
is under consideration, seniority should not be regarded except
where the merit of the officers is judged to be equal and no other
criterion is therefore available. …
(emphasis ours)
28. The post being a selection post and not one of promotion, the manner
of selection is a matter of policy which completely vests with the
Government. If the Government deemed it fit to change the method
of selection, it was within its power, authority and competence and
unless the changed policy is proved to be arbitrary, Dash and Sahoo
cannot have a claim to the post.
29. In view of the aforesaid, the view taken by the Division Bench of the
High Court is erroneous and it acted illegally in the exercise of its
jurisdiction in dismissing the intra-court appeals of the State.
30. The appeals, thus, deserve to be and are, accordingly, allowed. The
impugned orders are set aside. Interim orders, if any, stand vacated.
31. Parties shall bear their own costs.
………………………………….J.
(DIPANKAR DATTA)
………………………………………J.
(AUGUSTINE GEORGE MASIH)
NEW DELHI;
MAY 18, 2026.
22