Service Law:
Seniority – Inter-se seniority between promotees and direct recruits – Promotees placed higher than direct recruits in seniority list for the post of ‘Assistant Engineer’ – Direct recruits challenged the seniority list contending that the appointment of promotees were constitutionally invalid as the same were without consultation with Uttar Pradesh Public Service Commission (UPPSC) as envisaged in Art.320(3) of the Constitution – Held: The promotees as well as direct recruits were initially appointed on ad hoc basis as a stopgap arrangement – Appointment of direct recruits, thus was not through a regular process of UPPSC – They were later regularised in terms of Office Memorandum dated 20.11.2001 – The High Court was not justified in relying on 4 th amendment to the Centralised Services Rules, 1985 because therein post of ‘Assistant Engineer’ was not mentioned as the post for which consultation with UPPSC was exempted – Such consultation was mandatory – However, this is irregularity and not illegality, and such irregularity can be cured through prospective consultation – The relevant date for inter-se seniority for the direct recruits would be their date of regularisation and for the promotees would be date of their continuous officiation – The dates of officiation of promotees are prior to the appointment of the direct recruits – State is directed to move UPPSC for consultation – Constitution of India – Art. 320(3) – Uttar Pradesh Urban Planning and Development Act, 1973 [as amended by Uttar Pradesh Urban Planning and Development (Amendment and Validation) Act, 1985] – s. 5A – Uttar Pradesh Development Authorities Centralised Services Rules, 1985 – rr. 8, 21 and 28, Schedule III – Uttar Pradesh Public Service Commission (Limitation of Function) Regulations, 1954.
Disposing of the appeals, the Court
HELD: 1. The dispute is a result of ad hocism, which took place at the inception when the amendment was made to the Uttar Pradsesh Urban Planning and Development Act, 1973, with a view to provide better development by the authorities in the State of U.P. The regular process was not undertaken and a stop gap arrangement was made both in terms of promotees and direct appointees. This stop gap arrangement, however, acquired a more permanent feature by continuation over a long period of time, without the regular process being followed. This was in both the channels. The appointment of the appellants themselves was not through a regular process of UPPSC, but was made through a selection done by a selection committee appointed vide Office Memorandum dated 25.8.1987. The appointment was on a fully temporary and ad hoc basis and was to continue for a maximum period of one year or up to the period until regular candidates were selected through the Public Service Commission. The appellants were regularised in terms of the Office Memorandum dated 20.11.2001. Thus, it is not as if the appellants are persons who have been appointed through a normal process. It is rather ironic that the appellants who themselves were on an ad hoc basis originally and not through a regular process, seek to challenge the seniority list on the basis of this technical objection. Their appointment itself has never been through UPPSC, as envisaged under the Rules.[Paras 18, 19 and 25] [514-E-G; 515-B-C; 516-F-G]
Sushil Chandra Srivastava v. State of U.P. and Ors 1996 All LJ 1171 ; State of U.P. v. Manbodhan Lal [1958] SCR 533 – referred to.
2. Private respondents 5-10 are promotees. The Departmental Promotion Committee for promotion of the Junior Engineers to the post of the ‘Assistant Engineer’ was held on 27.5.1995. At the relevant time, the 13th Amendment to Uttar Pradesh Public Service Commission (Limitation of Function) Regulations, 1954, had done away with the requirement of the consultative process with the UPPSC altogether, and it was only subsequently, on 19.10.1995, that such amendments were struck down by Allahabad High Court. Interpretation of Article 320(3) of the Constitution in *Manbodhan Lal case, also makes it clear that while the intention of the makers of the Constitution may not be to provide for consultation with the Commission as mandatory, in view of the proviso, it would not amount to saying that it is open to the Executive Government to completely ignore the existence of the Commission, as was sought to be done in the present case by doing away with such consultation across the board. High Court was not justified in relying on 4th Amendment to the U.P. Development Authorities Centralised Services Rules, 1985 dated 8.9.1993, but runs contrary to the amendment itself. The amendment provides such of the posts for which consultation was not required. Undisputedly, the post of the ‘Assistant Engineer’ is not mentioned as one of such posts. Such consultation was mandatory but was not done. However, this is an irregularity and not an illegality, and such irregularity can always be cured through prospective consultation. [Paras 20-22] [515-C-H; 516-A-B]
*State of U.P. v. Manbodhan Lal [1958] SCR 533 – followed.
3. Rule 28 of the Uttar Pradesh Development Authorities Centralised Services Rules, 1985 no doubt, stipulates that inter se seniority of the persons appointed by direct recruitment would be determined from the date of joining the service. The ad hoc appointment of the appellants was regularised from a subsequent date of 20.11.2001 and, thus, they can only claim appointment for inter se seniority from that date. The rule qua the promotees, stipulates that the date of continuous officiation in the case of promotees would be the relevant date. The private respondents have been officiating from various dates and those would be the relevant dates, and those dates are prior to the appointment of the appellants. The only irregularity is the non-consultation with the UPPSC. [Para 24] [516-D-F]
4. In order to cure the defect which is apparent insofar as the confirmation of the private respondents/promotees is concerned, it would be appropriate to direct that the State Government should move the UPPSC for consultation within a maximum period of two months from the date of present judgment, and dependent on the result of the consultative process, action be taken, and the seniority list should govern accordingly. This would imply that the promotees would continue to maintain their position in the seniority list so long as there is a favourable opinion of the UPPSC, and only in case of such candidates that the UPPSC advises otherwise, i.e., negatively, would that person not be eligible to form a part of the same seniority. [Para 26] [516-G-H; 517-A-B]
Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra & Ors. (1990) 2 SCC 715 : [1990] 2 SCR 900 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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