Policy Changes Before Appointment Can't Be Challenged As No Vested Right Exists Prior To Issuance Of Appointment Letter : Jharkhand HC

Background Facts

The Jharkhand Staff Selection Commission published an advertisement inviting applications for appointment on the post of Compounder and Pharmacist. As per the advertisement, the pay scale of Compounder and Pharmacist was shown as Rs.5200-20200, Grade Pay Rs.2800. The essential qualification and syllabus for the posts of Compounder and Pharmacist was identical.

The petitioners being eligible, applied for the advertised posts. They appeared in the examination and after document verification, final result was published on 16.4.2019 where petitioners were declared successful. The respondent-Department, Home, Jail and Disaster Management, vide notification dated 4.9.2019 amended Rule 16 (ii) of the Jharkhand Para Medical Staff Cadre (Appointment, Promotion and other Service Conditions), 2016 and reduced the pay scale of Compounder to Grade Pay Rs.1900 from Rs.2800.

Aggrieved by the amendment of pay scale, the petitioners filed the writ petitions. It was contended by the petitioners that the pay scale of Compounder and Pharmacist was same and further the eligibility criteria, syllabus for both posts were also identical, therefore the Grade pay of Compounder cannot be reduced. On the other hand it was contended by the respondent-State that the petitioners joined the post on the reduced scale of pay. Therefore, they cannot claim for a higher pay scale since the decision to reduce the scale of pay was taken before the petitioners joined the post. The Division Bench by the order dated 15.07.2024 dismissed the claims of petitioners.

Aggrieved by the same, the petitioners filed the instant review petition against the division bench order.

It was contended by the petitioners that in terms of the government order issued in the year 1987, the Compounders were redesigned as Pharmacist, therefore, the petitioners were entitled for the grade pay of Rs.2800 which was being paid to the Pharmacist. It was further contended that the respondent had advertised that the Compounder and the Pharmacist will get the grade pay of Rs.2800, thereby, the respondent had all knowledge of post of Compounder was redesigned at Pharmacist by the Pharmacy Council of India, but the respondent in the mid of the appointment had amended the rules and reduced the grade pay, only with respect to Compounder, in deviation with the notification issued by the department.

On the other hand it was contended by the respondent that once the reduced pay scale had been accepted by the petitioners, they cannot question it. It was argued that the advertisement was issued but the pay scale mentioned therein was reduced prior to joining of the petitioners and it was well within petitioners' knowledge.

Findings of the Court

It was observed by the court that petitioners cannot question the policy decision of the State Government merely because they participated in the selection process. It was observed that an accrued right arises only when an offer of appointment is issued in favour of the petitioners. Since the State reduced the pay scale before the petitioners entered into service, they cannot claim a right to question that decision.

It was further observed by the court that if the pay scale had been reduced after the issuance of the appointment, it could not be said that the petitioners had accepted it. However, a mere recommendation made by the recruiting agency does not create any accrued or vested right in favour of the petitioners. In the absence of such a right, the petitioners have no ground to question the decision of the competent authority to reduce the pay scale.

It was further observed by the court that rights are considered 'vested' when the right to enjoyment, whether present or future has become the property of a specific person as a present interest. A mere expectation of future benefits based on the anticipated continuation of existing laws, does not amount to a 'vested right.' Therefore, a vested right is one that is independent of any condition. Such a right cannot be taken away without the consent of the person concerned. Unless a party has acquired an accrued or vested right, the State is free to change its policy or scheme.

The case of MGB Gramin Bank v. Chakrawarti Singh was relied upon by the court wherein the Supreme Court defined the term “vested right” which means a right that is fixed, complete, and not dependent on any future condition or contingency. It implies absolute ownership or entitlement, meaning the right cannot be defeated or taken away without the consent of the holder. Further that if no vested or accrued right has been obtained, a policy or scheme can be lawfully changed.

Further the case of Chairman, Railway Board v. C.R. Rangadhamaiah, was also relied upon by the court wherein the Supreme Court has talked about the question of taking away the vested right. It was held that the terms “vested rights” or “accrued rights” refer to rights that employees already had in place at the time. It was held that it will be unfair if a law is amended and applied retrospectively in a way that takes away these rights.

It was held by the court that prior to issuance of offer of appointment the pay scale has been reduced by amending the rule. Therefore, there is no accrual of right. It was further held that no appointment letter had been issued in favour of the petitioners. In such a case, the pay scale cannot be granted solely on the basis of what was mentioned in the advertisement. Instead, the pay scale that existed at the time of appointment will be applicable, as per the amended rules.

It was held by the court that the writ petitioners have accepted the reduced pay scale and once the reduced pay scale has been accepted, it is not available for one or the other petitioners to turn around and question the said decision.

With the aforesaid observations, the instant review petition was dismissed.

Case Name: Faiyaz Ahmad & Ors. v. State of Jharkhand & Ors.

Case No.: Civil Review No. 107 of 2024

Counsel for the Petitioner: Indrajit Sinha, Ajay Kumar Sah, Advocates

Counsel for the Respondents: Sahbaj Akhtar, AC to AAG-III