U.P. Development Authorities Centralised Service Rules, 1985 – Sub.r.(3) of r.24 – Promotion – Claim for – Appellant underwent the selection process conducted by the State under the provision of the Rules, 1985 and was appointed on ad-hoc basis on the post of Junior Engineer by Respondent No.1 – While in service appellant obtained the degree in B.Sc.-Engineering – Thereafter, appellant sought promotion u/sub. r.(3) of r.24 of the Rules – Appellant was not promoted – Writ petition by appellant was rejected by the High Court – The State contended that the appointment was not made with the concurrence of U.P. Public Service Commission, therefore, appellant’s appointment was illegal – Appellant contended that he was entitled for promotion as he was continuously employed from the date of initial appointment – On appeal, held: The case of appellant was squarely covered by the judgment of the Constitution Bench in the case of Direct Recruit Class II Engineering Officers Association – It was not in dispute that except the concurrence of the U.P. Public Service Commission the appointment of the appellant was made after following the procedure prescribed under the said Rules – The appointment of the appellant at the most can be termed as irregular and not illegal – The appellant had uninterruptedly served till the regularisation of his service which was made in accordance with the Rules – Further, the Respondent had issued an office memorandum dated 11.03.1994 providing for relaxation of the condition which prescribed minimum 10 years service on the post of Junior Engineer – By the said office memorandum, the government provided that 5% of the posts out of 50% promotional quota were to be reserved for such Junior Engineers, who had passed B.E. or A.I.M.E. Examination – Appellant possessed the said qualification – The High Court in another similarly circumstanced case had directed for consideration for the purpose of promotion to the higher post – However, the High Court in the case of the appellant rejected his claim for promotion – The High Court had considered the case of two employees differently when they were similarly circumstanced – Therefore, in view of the office memorandum dated 11.03.1994, the appellant was entitled to be promoted immediately after the issuance of the said office memorandum as he possessed the requisite degree when the said office memorandum was issued – The High Court erred in dismissing the petition of the appellant – Service Law. Allowing the appeal, the Court
HELD: 1. The Constitution Bench in Direct Recruit Class II Engineering Officers Association case in unequivocal terms holds that, if an appointment is made by way of stopgap arrangement without considering the claims of all the eligible persons and without following the rules of appointment, the experience of such appointment cannot be equated with the experience of a regular appointee, because of qualitative difference in the appointment. It however holds, that if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. [Para 18] [1140-E-G]
2. It can thus clearly be seen, that the Constitution Bench in unequivocal terms holds that, if the initial appointment is not made by following the procedure laid down by the rules, but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. [Para 20] [1141-D]
3. It is not in dispute, that except the concurrence of the U.P. Public Service Commission the appointment of the appellant has been made after following the procedure prescribed under the said Rules. The appellant has uninterruptedly served till the regularisation of his service which was made in accordance with the rules. It can thus be seen that the case of present appellant is squarely covered by the judgment of the Constitution Bench in the case of Direct Recruit Class II Engineering Officers Association. [Para 21] [1141-E-F]
4. It is further to be noted that the Respondent had issued an office memorandum dated 11.03.1994 thereby, providing for relaxation of the condition which prescribed minimum 10 years service in the post of Junior Engineer. Schedule-3 to the said Rules provided, that for being eligible to the promotion of Assistant Engineer along with the educational qualification a candidate must possess 10 years service, in the post of Junior Engineer on 01st July of the selection year. By the said office memorandum, the Government provided that 5% of the posts out of 50% promotional quota are to be reserved by extending relaxation to such of the Junior Engineers, who have passed B.E. or A.M.I.E. examination. It further provided, that in case candidates possessing B.E./A.M.I.E. examination were not available, the post should be filled in from non Graduate Junior Engineers. It is to be noted that the Government had also sought information from the Development Authorities with regard to the number of persons possessing the requisite B.E./A.M.I.E. degree. In response to the said communication the Agra Development Authority had intimated the respondent state the name of the appellant being the only person possessing the said qualification. [Para 22] [1141-G-H; 1142-A-B]
5. This Court fails to appreciate as to how the same High Court could have considered the case of two employees differently when they were similarly circumstanced. It is not in dispute that the present appellant as well as other employee were selected through the same selection process though their orders of appointment differs. The only ground on which the High Court has refused to consider the case of the appellant is that in the case of the other employee, the court had not considered the issue with regard to non-concurrence of the U.P. Public Service Commission. At the cost of repetition as discussed herein above the appointment of the appellant at the most can be considered as irregular and not illegal [Paras 23 and 26] [1142-C; 1143-E-F]
6. It is to be noted that the appellant has obtained the Bachelor of Science (Engineering) degree in the year 1987 and though the other three employees had obtained the degree of A.M.I.E. in the year 1993 and 1994, they were held entitled for promotion as Assistant Engineer from Junior Engineer. This Court fails to appreciate the approach of the High Court in denying the promotion to the appellant when all the other three employees were appointed in the year 1987 through the same selection process and though one of them had obtained the degree in 1993 and other two had obtained the same in 1994 whereas the appellant had obtained the said degree in 1987. [Para 27] [1143-G-H; 1144-A]
7. It could thus be seen that, in view of the office memorandum dated 11.03.1994, the appellant was entitled to be promoted immediately after the issuance of the said office memorandum as he possessed the requisite degree when the said office memorandum was issued. In any case the appellant is entitled to be promoted with effect from 18.01.1995 i.e. the date on which the juniors to him were promoted. [Para 28] [1144-B-C]
Direct Recruit Class – II Engineering Officers Association v. State of Maharashtra and others (1990)
2 SCC 715 : [1990] 2 SCR 900 ; Secy., State of Karnataka v. Uma Devi (2006) 4 SCC 1 : [2006] 3 SCR 953 – followed.
State of M.P. and ors. v. Lalit Kumar Verma (2007) 1 SCC 575 : [2006] 9 Suppl. SCR 591 ; State of Karnataka and Others v. M. L. Kesari and Others (2010) 9 SCC 247 : [2010] 9 SCR 543 – relied on.
Rajendra Prasad Dwivedi v. State of U.P. and others Writ Petition No. 3421 of 1996 ; State of U.P. v. R. P. Dwivedi in its Order dated 13.02.2014 in Special Appeal No. 75 of 2012 – 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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