No Universal Rule That Vacancies Must Be Filled As Per Rules Which Existed When Vacancies Arose : Supreme Court

The Supreme Court has recently held that government employees do not possess a vested right to be considered for promotion under recruitment rules that existed when vacancies arose. Instead, the applicable rules are those in force on the date when the promotion process is actually considered.

“An employee only has the right to be considered for promotion based on the statutory rules in force on the date the actual consideration for promotion takes place, not retrospectively.”, the Court held in approval with State of Odisha & Ors. v. Sreepati Ranjan Dash, 2026 LiveLaw (SC) 514.

A bench of Justice Pankaj Mithal and Justice S.V.N. Bhatti set aside the judgment of the Port Blair Circuit Bench of the Calcutta High Court, which had upheld the claim of certain Head Constables to be considered for promotion to the post of Assistant Sub-Inspector (Executive) under the Old recruitment rules. The High Court had proceeded on the basis that vacancies must be filled in accordance with the rules in force when those vacancies arose, thereby protecting the respondents' ad hoc promotions.

Disagreeing with the High Court's approach, the judgment authored by Justice Bhatti observed that since the law in force as of the date of consideration applies to the filling of vacancies or promotional posts, therefore, with the substitution of New Rules in 2016, the old rule gets repealed, rendering the filling of the promotional posts in accordance with the New Rules.

The respondents contended that since the 2016 Recruitment Rules came into force only after the vacancies had arisen and after their ad-hoc promotions were granted in 2014, the promotional process ought to be governed by the rules that were in force when those vacancies accrued.

Rejecting the contention, the Court observed that the promotions granted in 2014 were purely ad hoc and expressly made subject to the outcome of the pending litigation. Such promotions did not confer any vested right and were liable to be reversed if the litigation concluded against the promotees.

Consequently, the Court, citing Sreepati Ranjan Dash (supra), held that once the 2016 Rules came into force, the promotional exercise had to be governed by those rules, which constituted the applicable legal framework at the time the matter was finally considered.

The judgment also extracted the principles in Sreepati Ranjan Dash as follows :

• The government, acting as the appointing authority, has the prerogative the prerogative not to fill vacancies by promotion, especially during a change in cadre or restructuring of posts. In such policy matters, the State cannot be compelled to carry out appointments.
• There is no universal rule that vacancies must be filled in accordance with the rules that existed on the date the vacancies arose.
• An employee only has the right to be considered for promotion based on the statutory rules in force on the date the actual consideration for promotion takes place, not retrospectively.
• There is a difference between an automatic “promotional post” and a “selection post” . For a “selection post”, promotion is not automatic merely based on seniority or ranking in a Gradation List; merit is the primary criterion. Since it is a selection post, the Government is competent to change the selection method for the “selection post”.
• When new rules supersede old instructions “except as respects things done or omitted to be done,” the protection only applies to completed acts. Merely writing a letter to request the convening of a DPC is not a completed act.

In view of the aforesaid, the appeal was allowed.

Cause Title: JAGDISH PRASAD AND OTHERS VERSUS P.M. MANOJ KUMAR AND OTHERS

Citation : 2026 LiveLaw (SC) 596

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Appearance:

For Appellant(s) Mr. P.C. Das, Adv. (argued by) Mr. Sukesh Ghosh, Adv. Ms. Tanusri Maity, Adv. Mr. Prathvi Raj Chauhan, AOR Mr. Anil Kumar Verma, AOR

For Respondent(s) Mr. Debajyoti Basu, Sr. Adv. (argued by) Mr. Aditya Kashyap, Adv. Mr. Shantanu Bhowmick, Adv. Mr. Gautam Barua, Adv. Ms. Anjali Akhariya, Adv. Mr. Abhaya Nath Das, Adv. Mr. Piyush Sharma, Adv. Ms. Swati, Adv. Mr. Satish Kumar, AOR Mr. Rohit Amit Sthalekar, AOR Mr. Siddhant Singh, Adv. Mr. Vikramjeet Banerjee, A.S.G.(argued earlier) Ms. Mrinal Mazumdar, Adv. Mr. Mukesh K Verma, Adv. Ms. Indira Bhakar, Adv. Mr. Yogesh Vats, Adv. Mr. Vineet Singh, Adv. Mr. Osheen Jan, Adv. Mr. Shreekant Neelappa Terdal, AOR (argued by)

For Intervenor Mr. John Mathew, AOR (argued by) Mr. Sachin Mana, Adv.