STATE OF JHARKHANDversusBHADEY MUNDA & ANR.

                     (2014] 7 S.C.R. 765


                   STATE OF JHARKHAND                           A
                               v.
                   BHADEY MUNDA & ANR.
               (Civil Appeal No. 8616 OF 2014)
                    SEPTEMBER 10, 2014
                                                                 B
       [MADAN B. LOKUR AND C. NAGAPPAN, JJ.]

       Service law: Promotion - Names of respondents
  ·ecommended for.promotion along with other functional
  managers - Bifurcation of State - Services qf respondents C
  allocated to State of Jharkhand - Others whose names
  recommended for promotions and allocated to State of Bihar
  promoted - However respondents not promoted on the ground
 /that recommendations of DPC of State of Bihar not binding
/ on State of Jharkhand and vacancy for promotion also did not D
· exist - Held: If there is no vacant post for the appointment of
  a direct recruit or for the promotion of an employee,
  recruitment or promotion cannot be made
  Recommendations of the DPC held anterior to the date of the
  constitution of the Jharkhand High Court and the State of E
  Jharkhand could not be implemented and the exercise of
  accepting the recommendation of the DPC from a date prior
  to the date of formation of tf,a State of Jharkhand could have
  been taken only by the State of Bihar and not by the State of
  Jharkhand.                                                      F
     · Allowing the appeal, the Court

      HELD: 1. Mere chance of a promotion is not a
 condition of service In the instant case, service condition
 had not been varied to the disadvantage of the                  G
 respondents. A vacancy can be filled up only if it exists.
 If there is no vacant post for the appointment of a direct
 recruit or for the promotion of an empioyee, a promotion
 or recruitment cannot be made .. The Jharkhand High
                            765                                  H
    766      SUPREME COURT REPORTS             [2014] 7 S.C.R.,

A Court could not have directed implementation of the
  recommendations of the DPC held on 15th February,
  1999 that is from a date anterior to the date of the.
  constitution of the Jharkhand High Court and the State'
  of Jharkhand and the exercise of accepting the'
B recommendation of the DPC held on 15th February, 1999
  that is from a date anterior to the date of the constitution
  of the Jharkhand High Court and the State of Jharkhand
  and the exercise of accepting the recommendation of the
  DPC from a date prior to the date of formation of the State
c of Jharkhand could have been taken only by the State of
  Bihar and not by the State of Jharkhand. [Paras 19,20, 26,
  29) [773-G; 774-8-C; 776-D-E]

         Mohd. Shujat Ali vs. Union of India (1975) 3 SCC
    76:1975 (1) SCR 449; Mohammad Bhakar v. Y. Krishna
D . Reddy 1970 SLR 768; State of Mysore v. G.B. Purohit (1967)
    1 SLR 753; Ramchandra Shankar Deodhar v. The State of
    Maharashtra (1974) 1 SCC 317: 1974 (2) SCR 216; Madan
    Lal v. State of J&K (1995) 3 sec 486:1995 (1) SCR 908;
    Debabrata Dash v. Jatindra Prasad Das (2013) 3 SCC 658:
E 2013 (2) SCR 331; State of Uttarakhand v. Umakant Joshi
    (2012) 11 sec 164 - relied on.

                         Case Law Reference:
          1975 (1) SCR 449      Relied on           Para 19
F
          1970 SLR 768          Relied on           Para 19
          (1967) 1 SLR 753      Relied on           Para 19
          1974 (2) SCR 216      Relied on           Para 19
G         1995 (1) SCR 908      Relied on           Para 21
          2013 (2) SCR 331      Relied on.          Para 21
          (2012) 11 sec 164     Relied on           Para 22

H
  . STATE OF JHARKHAND v. BHADEY MUNDA                   767


    CIVIL APPELLATE JUJRISDICTION : Civil Appeal                 A
No.8q16 of 2014

    From the Judgment and Order dated 17-02-2012 of the
High Court of Jharkhand at Ranchi in LPA No.394 of 2011.

    A. Sharan, Kunal Verma for the Appellant.                    B

    Sumeet Gadodia, Kaushik ~oddar for the Respondents.

    The Judgment of the Court was delivered by

    MADAN B. LOKUR, J. 1. Leave granted.                         c
     2. From sometime in 1990, both the respondents were
holding the post of Functional Manager in the Department of
Industries in the erstwhile State of Bihar. Later, they were
working as in-charge General Manager/Deputy Director of          D
Industries with effect from 9th November, 1998 and 1st
November, 1996 respectively.

    3. On 15th February, 1999 a meeting of the Departmental
Promotion Committee (DPC) was convened for recommending
promotions of Functional Managers to the next higher post of     E
General Manager/Deputy Director of Industries. The DPC
recommended seven Functional Managers (including both the
respondents) be promoted to the post of General Manager/
Deputy Director of Industries.
                                                                 F
     4. For one reason or another, the recommendation of the
DPC was neither accepted nor rejected. Consequently, four of
the seven persons recommended for promotion, including
Bindeshwari Das, filed a writ petition in the Patna High Court
being C.W.J.C. No. 115 of 2004. It was prayed in this writ       G
petition filed against the State of Bihar that a direction be
issued to the State of Bihar to promote them to the post of
General Manager/D.eputy Director of Industries.

    5. In the meanwhile, a significant development took place    H
    768      SUPREME COURT REPORTS                    [2014] 7 S.C.R.


A on 15th November, 2000 namely that by virtue of the Bihar
  Reorganization Act, 2000 (for s.hort the Act), the State of Bihar
  was bifurcated into the State of Bihar and the State of
  Jharkhand. However, as mentioned above, Bindeshwari Das
  and others did not implead the State of Jharkhc:nd as one of
B the respondents in their writ petition, apparently bei;ause their
  cadre controlling .authority remained the State of Bihar, the
  service not having been bifurcated at that time.

        6. Be that as it may, the writ petition filed by Bindeshwari
  Das and others was disposed of by the Patna High Court on
C 30th April, 2004. The operative portion of the order passed by
  the learned Single Judge of the Patna High Court reads, inter
  alia, as follows:-

          "The claims of the petitioners are being admitted by the
D         State authorities for their promotion to the posts of General
          Managers/Deputy Directors of different District' Industries
          Centers. The State authorities should take a decision in
          the matter as early as it is possible. It appears that approval
          is being sought for from the Cabinet Secretariat right from
E         1999 and one pretext or the other, the matter is being
          delayed for untenable reasons. It is not the case of the
          State respondents that queries made by the Cabinet
          Secretariat have not b~en satisfied rather it appears that
          when the matter was· returned with certain queries, the
          approval was again sought for in 2002 which necessarily
F
          implies that the queries were satisfied and the matter was
          again ser;it. ·             •

      Considering the facts and circumstances of the case, the
      State authorities are directed to take final pecision
G     pertaining to promotion of the petitioners, as referred
      above, within a period of three months from the date of
      receipUproduction of a copy·of this order.".
                                                             •
      The order of the High Court passed on 30th April, 2004
H was not complied with by the State of Bihar.
     STATE OF JHARKHAND v. BHADEY MUNDA                       769
              [MADAN B. LOKUR, J.]
     7. About a year later, sometime in April 2005, the A
Government of India issued Office Order No. 17(8)/2005 in
exercise of powers conferred by Section 72 of the Act. The
Order was to the effect that the services of every person
mentioned in the annexure to the Order (which included both
the respondents and Bindeshwari Das) who had been working B
in connection with the functioning of the State of Bihar just
before 15th November, 2000 and has been working in the
Northern Bihar State or the State of Jharkhand finally since 15th
November, 2000 shall be considered to have been allocated
to the State of Jharkhand. The result of this Order was that now c
the Stat~ of Jharkhand became the cadre controlling authority
of the respondents leading to necessary consequential steps
including the transfer of records etc.

     8. The bifurcation of the State of Bihar complicated the
matter insofar as the respondents are concerned inasmuch as D
the State of Jharkhand apparently took the view that it was not
bound by the recommendations made by the DPC on 15th
February, 1999 when the State of Bihar was the cadre
controlling authority of the respondents.
                                                                E
Proceedings before the learned Single Judge

        9. The change of fortunes led the respondents to file Writ
  Petition (S) No. 2530 of 2010 in the High Court of Jharkhand.
  In the writ petition it was prayed-that the State of Jharkhand be
                                                                      F
  directed to promote the respondents with all consequential
  benefits from the post of Functional Manager to the post of
  General Manager/Deputy Director of Industries with effect from
  the date from which they had been working as officers-in-charge
  of the post of General Manager/Deputy Director (that is from
  1998 and 1996 respectively, well before the bifurcation of the      G
· State of Bihar).

    · 10. It is important to note that the State of Bihar was a
 respondent in the writ petition filed by the respondents in the
 Jharkhand High Court, but apparently did not contest it.             H
    770         SUPREME COURT REPORTS                            [2014] 7 S.C.R.


A         11. The writ petition came to be heard by a learned Single
    Judge and by an order dated 10th/15th July, 2011 the writ
    petition was allowed with a direction that "the concerned
    authority" shall look into the griev(!nces of the respondents.

       12. The learned Single Judge held that Section 73 of the
8
  Act 1 prohibited a change in the conditions of service as
  applicable to the respondents immediately before the
  appointed date that is 15th November, 2000. It was held that
  by that date the respondents had already acquired a right for
C promotion and therefore no action detrimental to the interests
  of the respondents could be taken by the State Government.

       13. The learned Single Judge also noted that of the seven
  officers recommended for promotion by the DPC, four had
  been allocated the Bihar cadre and they were granted
D promotion by that State. However, since the respondents were
  allocated the Jharkhand cadre, they were deprived of the
  benefit that was given to those who were recommended for
  promotion along with them. It was held that the mere allocation
    1.     Section 73. Other provisions relating to services.- Nothing in Section 72
E        shall be deemed to affect on or after the appointed day the operation of the
         provisions of Chapter I of Part XIV of the Constifution in relation to
         determination of the conditions of service of persons serving in connection
         with the affairs of the Union or any State :
         Provided that the conditions of service applicable immediately before the
         appointed day in the case of any person deemed to have been allocated
F        to the State of Bihar or to the State of Jharkhand under Section 72 shall not
         be varied to his disadvantage except with the previous approv;ll of the
         Central Government.
    (2) All services period to the appointed day rendered by a person,-
    (a) If he is deemed to have been allocated to any State under Section 72, shall
        be deemed to have been rendered in connection with the affairs of that
G       State;
    (b) If he is deemed to have been allocated to the Union in connection with tile
        administration of the Jharkhand s,!lall be deemed to have been rendered
        in connection with the affairs of the Union, for 'the purposes of the rules
        regulating his conditions of servici;i.
    (3) The provisions of Section 72, shall not apply in reh;1tion to members of any
H       All India Service.
         STATE OF JHARKHAND v. BHADEY MUNDA                     771
                  [MADAN B. LOKL)~. J.]
of the Jha.rkhand cadre to the respondents could not work to          A
their detriment, nor could they be deprived of the rightful claim
for promotion to the post of General Manager/Deputy Director.

         14~· Under these circumstances the learned Single Judge
directed "the concerned authority" to look into the matter and ·B
ensure that ~he respondent~ ,were not discriminated against.

Proceedings before the Division Bench
     15. Feeling aggrieved by the decision rendered by the
learned Single :Judge, the State of Jharkhand preferred a C
Letters Patent Appeal being LPA No.394 of2011 in the High ·
Court of Jharkharid. The Division Bench affirmed the.order of
the learned Single Judge by the judgment under appeal.

    · · · 16.LThe Division Bench held that a right had accrued in
 the favour of the respondents for being. promoted· and this right    D
 could not be taken away from them since it was protected by
 Sections 72 and 73 of the Act.· It was also noted that the
 recommendations of the DPC had been implemented by the
 State of Bihar in respect of ~ome Functional Managers similarly
 situate as the respondents. As such the respondents had been         E
 illegally placed in a disadvantageous position. Accordingly, the
  Division 1Bench upheld the C:irection of the learned Single Judge
'effectivelyjpronioting the respondents in'accordance with the
-recommendations of theJDPC held on 15tlllFetirlfa!'Y~ 1999.
     J                                                .   - i         F
Discussion ,                              · , '· ·1
 .                                   .

- , 17. The State of Jharkhand is now in appeal before us
 challenging the order of the Division Bench.
    · 1·a. Learned courisei for the ·state of Jharkh"and made three : ,G
submissions before us and we are of the opinion that all the
submissions are· well founded. It was submitted: firstly, that the
respondents had only a right to be considered for promotion -
_they did not h~ve any right to get promoted; secondly, the
                                                                      H
                            ~
    772       SUPREME COURT REPORTS                  [2014] 7 S.C.R.

A service conditions of the respondents had not been varied to
   their detriment and therefore Section 73 of the Act had no
   application to the facts of the case; thirdly, a promotion can only
 · be made if there is an existing vacancy. It was submitted that
   there is nothing on record to suggest that there were existing
B vacancies in the post of General Manager/Deputy Director in
   the State of Jharkhand and, therefore, there is no question of
   promoting the respondents to that post.

      19. The first issue is no longer res integra the matter having
C been put to rest long ago by a Constitution Bench of this Court
  which held that the mere chance of a promotion is not a
  condition of service. It was said in Mohd. Shujat Ali v. Union
    of lndia 2 :

          "It is true that a rule which confers a right of aclual
D         promotion or a right to be considered for promotion is a
          rule prescribing a condition of service. This proposition can
          no longer be disputed in view of several pronouncements
          of this Court on the point and particularly the decision in
          Mohammad Bhakar v. Y. Krishna Reddy3 where this
          Court, speaking through Mitter, J., said: "Any rule which
          affects the promotion of a person relates to his condition
          of service". But when we speak of a right to be considered
          for promotion, we must not confuse it with mere chance of
          promotion - the latter would certainly not be a condition of
F         service. This Court pointed out in State of Mysore v. G.B.
          Purohit4 that though a rig ht to be considered for promotion
          is a condition of service, mere chances of promotion are
          not. A rule which merely affects chances      of   promotion
          cannot be regarded as varying a condition of service. What
          happened in State of Mysore v. G.B. Purohit4 was that the
G
          districtwise seniority of Sanitary Inspectors was changed
          to State wise seniority and as a result of this change, the
    2.   (1975) 3 sec 76, 95.
    3.   1970 SLR 768.
H 4. (1967) 1 SLR 753.
     STATE OF JHARKHAND v. BHADEY MUNDA                      773
              [MADAN B. LOKUR, J.]

     respondents went down in seniority and became very A
     junior. This, it was urged, affected their chances of
     promotion which were protected under the proviso to
     Section 115 sub-section (7) [of the States Reorganization
     Act, 1956]. This contention was negatived and Wanchoo,
     J. as he then was, speaking on behalf of this Court B
     observed: "It is said on behalf of the respondents that as
     their chances of promotion have been affected their
     conditions of service have been changed to their
     disadvantage. We see no force in this argument because
      chances of promotion are not conditions of service". Now,     c
      here in the present case, all that happened as a result of
      the application of the Andhra Rules and the enactment of
      the Andhra Pradesh Rules was that the number of posts
      of Assistant Engineers available to non-graduate
      Supervisors from the erstwhile Hyderabad State for D
      promotion, was reduced: originally it was fifty per cent, then
      it became thirty-three and one-third per cent, then one in
      eighteen and ultimately one in twenty-four. The right to be
      considered for promotion was not affected but the chances
      of promotion were severely reduced. This did not
      constitute variation in the condition of service applicable E
      immediately prior to November 1, 1956 and the proviso
      to Section 115 sub-section (7) was not attracted. This view
       is completely supported by the decision of a Constitution
       Bench of this Court in Ramchandra Shankar Deodhar v.
       The State of Maharashtra 5 ."                                 F

     20. As far as the second issue is concerned, learned
counsel for the respondents was not able to point out any
service condition that had been varied to the disadvantage of
the respondents. All that was submitted (for the first time and     G
that too orally) is that the reservation percentage as it existed
in the State of Bihar for scheduled caste and scheduled tribe
candidates had been varied in the State of Jharkhand, thereby
reducing the possibility of their promotion. Even this issue is
s.   (1974) 1 sec 317.                                              H
     774       SUPREME COURT REPORTS                 [2014] 7 S.C.R.

A     relatable to the chances of promotion as noted in the second
      part of the passage cited above from Mohd. Shujat Ali and
      therefore cannot form a legitimate basis for challenging the
    · actions of the State of Jharkhand.

           21. The third issue also need not detain us for long and
B must be decided in favour of the State of Jharkhand. It is trite
  that a vacancy can be filled up only if it exists. If th~re is no
  vacant post for the appointment of a direct recruit or for the
  promotion of an employee, a promotion or recruitment cannot
C be made. This was pithily stated in Madan Lai v. State of J&K6
  and also quite recently in Debabrata Dash v. Jatindra Prasad
  Das 7 in the following words:

      "Thus, in the absence of any vacancy in the Senior Branch
  Cadre of Superior Judicial Service to be filled up by promotion, ,
D no appointment to the Senior Branch of service by way of ·
  promotion can be made. It is as fundamental as this."

        22. We may finally refer to State of Uttarakhand v.
     Umakant Joshi8 in which a situation somewhat similar to the
E present case had arisen.

          23. While he was an employee of the State of Uttar
     Pradesh, Joshi was subjected to departmental inquiries which
     resulted in the award of a punishment to him. He represented
     against the punishment and also filed a writ petition challenging
F    the punishment in the Allahabad High Court. He was also given
     adverse entries in his annual confidential reports fpr several
     years. He represented the adverse entries as well.

       24. Pending the consideration of his·representations and
G the writ petition, the State of Uttar Pradesh was bifurcated into
  Uttar Pradesh and Uttarakhand by the Uttar Pradesh
  Reorganization Act, 2000 with effect from 9th November, 2000.
     6.   (1995) 3 sec 486
     7.   (2013) 3 sec 658
H s.      (2012) 11 sec 164
    ·'
     STATE OF JHARKHAND v. BHADEY MUNDA                     775
              [MADAN B. LOKUR, J.]
Josh~i's serviees were then allocated to the State of A
Uttarakhand.




         27. This Court considered the provisions of Sections 73
  and 74 of the Uttar Pradesh Reorganization Act, 2000, which E
  are in pari materia with the provisions of Sections 72 and 73
  of the Bihar Reorganization Act. While dealing with these
  provisions, this Court concluded that the High .Court of
  Uttarakhand, which came into existence on 9th November, 2000
  when the State of Uttarakhand was. formed by the Uttar Pradesh F
1
  Reorganization Act did not have the jurisdiction to entertain
  Joshi's writ petition to promote him with effect from a date prior
  to the constitution of the State of Uttarakhand. The exercise of
  promoting Joshi from a date prior to the formation of the State
  of l'.Jttarakhand could only be undertaken by the State of Uttar G
  Pradesh. That apart, it was also noted that direction given by
  the Uttarakhand High Court could not have been given without
  hearing the State of Uttar Pradesh which was bifurcated with
  effect from 9th November, 2000 resulting in the carving out of
  the State of Uttarakhand from the State of Uttar Pradesh.          H
    776       SUPREME COURT REPORTS                   [2014] 7 S.C.R.


A        28. This Court then allowed the appeal of the State of
    Uttarakhand holding as follows:

          "In view of the above, we hold that the writ petition filed by
          Respondent 1 [Joshi] in 2008 in the Uttarakhand High
          Court claiming retrospective promotion to Class I post with
8
          effect from 16-11-1989 was misconceived and the High
          Court committed jurisdictional error by issuing direction for
          his promotion to the post of General Manager with effect
          from 16-11-1989 and for consideration of his case for
          promotion to the higher posts with effect from the date of
c         promotion of his so-called juniors."

        29. As can be seen, there is a great deal of similarity in
   the facts of Joshi's case and the present appeal. For the.
   additional reasons mentioned in Joshi's case, we hold that the
D Jharkhand High Court could not have directed implementation
   of the recommendations of the DPC held on 15th February,
 · 1999 that is from a date anterior to the date of the constitution
   of the Jharkhand High Court and the State of Jharkhand and
   the exercise of accepting the recommendation of the DPC from
E a date prior to the date of formation of the State of Jharkhand
   could have been taken only by the State of Bihar and not by
   the State of Jharkhand.

    Conclusion
F        30. The appeal of the State of Jharkhand deserves to be
    allowed which we do. The order of the High Court is set aside,
    but without any order as to costs.

       31. However, this will not preclude the respondents from
G taking any other action permissible in law.
    Devika Gujral                                        Appeal allowed.