REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.10829 of 2014

AJAY KUMAR SINGH & ANR. ….APPELLANTS

Versus

THE STATE OF UTTAR PRADESH & ORS. ….RESPONDENTS

With

Civil Appeal No.10828/2014

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. This is one more of the perennial disputes between the

promotees and the direct appointees – this time to the post of

the ‘Assistant Engineer (Electrical & Mechanical)’ in the U.P.

Development Authorities Centralised Services. Both the set of

appointments were initially made on an ad hoc basis but were

subsequently confirmed. The core dispute relates to the

requirement of consultation with the Uttar Pradesh Public Service

Commission (for short ‘UPPSC’) provided in Article 320(3) of the

Constitution of India at the time when these ad hoc appointments

were confirmed. It is the say of the direct appointees that no

such consultation took place at the time when the ad hoc

promotees-appointees were confirmed, in breach of a mandatory

requirement and thus, their appointment is illegal. The sequitur

to this is the prayer made by the direct appointees that all such

promotees, even if the service were to be regularised now through

1

a consultative process with the UPPSC, would be liable to be

placed below the direct appointees.

2. The factual matrix of the dispute arose much earlier but the

culmination is stated to be the seniority list dated 15.5.2007

for the post of the ‘Assistant Engineer’, in terms whereof the

promotees have been placed above the direct appointees. It is in

the year 1985 that the U.P. Development Authorities Centralised

Services was created by virtue of the U.P. Urban Planning &

Development (Amendment & Validation) Act, 1985. The Amendment

Act to amend the parent Act, i.e., U.P. Urban Planning &

Development Act, 1973 (hereinafter referred to as the ‘said Act’)

was enacted with a view to provide better development by the

local authorities in the State of Uttar Pradesh, and in the

process, a centralised service was created to man these

authorities. To facilitate this, Section 5A was inserted by the

Amendment Act to create the centralised services of all

development authorities. The U.P. Development Authorities

Centralised Services Rules, 1985 (hereinafter referred to as the

‘said Rules’) were enacted under the said Section 5A and were

notified and came into effect on 25.6.1985. Rule 8 of the said

Rules provides for the source of recruitment to various posts

mentioned in Schedules I to VI. Promotion to the post of

‘Assistant Engineer’ is enlisted in Schedule III. The relevant

portion of Schedule III reads as under:

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Name of the

Centralised

Service

Name of the

Post

Post from

which

Promotion

to be Made

Minimum Qualifying

Service Required for

Promotion

Engineering Sahayak

Abhiyanta

(Rs. 850-

1720)

Avar

Abhiyanta

(Rs. 485-

860)

Must possess the

requisite

qualifications of a

qualified Junior

Engineer and must

have completed a

minimum service of

10 years as

qualified Junior

Engineer on first

July of recruitment

year.

Sahayak Abhiyanta :: Assistant Engineer

Avar Abhiyant :: Junior Engineer

It may be noted that Schedule III provides for the post to

be filled in by the Public Service Commission in the ratio of

50% through promotion and 50% through direct recruitment.

3. An advertisement was published on 11.7.1987 for direct

recruitment to 9 posts of ‘Assistant Engineer (Electrical &

Mechanical)’ with educational qualifications as a degree in

Electrical or Mechanical Engineering. The appointment was so

made as per Office Memorandum dated 25.8.1987 on the basis of a

selection done on 13.8.1987 by a Selection Committee. The

appointment is on “fully temporary and ad hoc basis.” Clause 3

of the Office Memorandum states that such appointments are fully

temporary for a period of maximum one year or up to the period

until the regular candidates are selected by the Public Service

Commission and are made available, whichever is earlier. It was

also stated that the services could be terminated at any time

without any prior information. We may note here that the two

3

appellants in Civil Appeal No.10829/2014 and the one appellant in

Civil Appeal No.10828/2014 are amongst the persons so appointed

on an ad hoc basis, as direct recruits.

4. The said Rules were amended from time to time. As per the

3

rd

Amendment of the Rules by Notification dated 7.2.1992 a new

Rule 20-A was inserted with the object of regularising ad hoc

appointment of direct recruits, who were so recruited on or

before 1.10.1986. However, this amendment did not come to the

aid of the appellants as the cut-off date was 1.10.1986, while

the appellants were recruited on 25.8.1987. It was only the 7

th

amendment to the 1985 Rules, published on 2.8.2001, which amended

the cut-off date, under Rule 20-A, from 1.10.1986 to 29.6.1991

for regularisation of the ad hoc direct recruits, which

facilitated the regularisation of the appellants, who were

recruited before 29.6.1991. The appellants were, thus,

subsequently regularised in terms of the Office Memorandum dated

20.11.2001.

5. In the meantime, parallelly, another story was unfolding in

respect of the promotees. The seed of the dispute was laid by

the 4

th

amendment to the Rules notified on 8.9.1993 by which Rule

21, which laid down the procedure for recruitment by promotion,

was amended to the extent that it did away with consultation with

the UPPSC for certain posts. The relevant amendment showing the

existing and amended Rules is extracted hereinunder:

4

COLUMN – I COLUMN – II

Existing rule

Procedure for recruitment

by promotion

Rule as hereby substituted

Procedure for recruitment

by promotion

21. Recruitment by

promotion shall be made on

the basis of seniority

subject to the rejection

of unfit in accordance

with the “Uttar Pradesh

promotion by selection in

consultation with Public

Service Commission

(Procedure) Rules, 1970”

as amended from time to

time

21. Recruitment by

promotion shall be made by

the State Government on

the basis of seniority

subject to the rejection

of unfit and it shall not

be necessary to consult

the Uttar Pradesh Public

Service Commission on the

principles to be followed

in making promotion or on

the suitability of

candidates for promotion

to the posts of Apar

Sachiv, Sanyukt Sachiv,

Sampatti Adhikari, Varisht

Kar evam Rajaswa

Adhikshak, Mukhya

Abhiyanta Adhishashi

Abhiyanta, Lekha Adhikari,

Mukhya Nagar Niyojak,

Nagar Niyojak, Karyalaya

Adhikshak and Niji Sachiv

mentioned in Schedule-I.

It may be relevant to note that while doing away with the

necessity of consultation with the UPPSC, the same was

confined to the posts mentioned in the amended Rule, and the

post of the ‘Assistant Engineer’ was not mentioned in the

same.

6. The next development was on 7.9.1994, when the 13

th

Amendment to the Uttar Pradesh Public Service Commission

(Limitation of Function) Regulations, 1954 (hereinafter referred

to as the ‘said Regulations’) were brought into force which did

away altogether with the consultative process with the UPPSC

regarding suitability of candidates in making promotion to a post

5

in the State Service. Taking into aid this amendment, a

Departmental Promotion Committee for regular promotion of the

Junior Engineers to the post of ‘Assistant Engineer’ was held on

27.5.1995, which specifically recorded that in view of this

amendment, there was no need to consult the UPPSC. However, the

endeavour made to do away with the process of consultation

regarding suitability for promotion to services and posts, across

the board, did not meet with the approval of the Allahabad High

Court, in the case of Sushil Chandra Srivastava vs. State of

U.P. and Ors

1

., where it was held to be constitutionally invalid

and the challenge to the aforementioned amendment was upheld,

striking down as ultra vires the said Regulations regarding

promotion to the State services and posts. The judgment took

note of Article 320(3) of the Constitution, which reads as under:

“320. Functions of Public Service Commissions. –

xxxx xxxx xxxx xxxx xxxx

(3) The Union Public Service Commission or the State Public

Service Commission, as the case may be, shall be consulted —

(a) on all matters relating to methods of recruitment to civil

services and for civil posts;

xxxx xxxx xxxx xxxx xxxx

Provided that the President as respects the all-India services

and also as respects other services and posts in connection

with the affairs of the Union, and the Governor, as respects

other services and posts in connection with the affairs of a

State, may make regulations specifying the matters in which

either generally, or in any particular class of case or in any

particular circumstances, it shall not be necessary for a

Public Service Commission to be consulted.”

1

1996 All LJ 1171.

6

7. The High Court noticed the Constitution Bench judgment of

this Court in State of U.P. v. Manbodhan Lal,

2

declaring that

Article 320(3)(c) of the Constitution was directory in nature and

making the following observations, which were extracted by the

High Court as follows:

“If it had been intended by the makers of the Constitution

that consultation with the Commission should be mandatory, the

proviso would not have been there, or, at any rate, in the

terms in which it stands. That does not amount to saying that

it is open to the Executive Government completely to ignore

the existence of the Commission or to pick and choose cases

in which it may or may not be consulted. ”

8. The High Court observed that in the instant case, by the

impugned amendment, the process of consultation had been

completely taken away and, thus, it would fall within the caveat

put by this Court itself in the latter part of the aforesaid

observation. This judgment has become final.

9. The effect of the aforesaid judgment was, thus, clear that

the process for promotion of Junior Engineers, would require

consultation with the UPPSC. However, despite this, an Office

Memorandum dated 29.12.1995 was issued promoting Junior Engineers

to the post of ‘Assistant Engineer’. To do so, reliance was

placed on the amendment to Rule 21, carried out by the 4

th

Amendment to the Rules on 8.9.1993, and since the said amendment

to the Rules had not been struck down, the process of

consultation was not required. This, however, completely missed

the aspect of the post of the ‘Assistant Engineer’ not being one

of the posts covered under the said amendment, a position, which

2

1958 SCR 533.

7

could not be seriously disputed before us. The regularisation of

these promotees was, however, made in pursuance of the 14

th

Amendment to the Rules, inserting Rule 21A, providing for

regularisation of services of ad hoc promotees working prior to

30.6.1998.

10.The effect of this was that the regularisation would take

effect from the date of their promotion, i.e., 29.12.1995. We

may add that insofar as the seniority claim for inter se

promotees is concerned, the same is covered by sub-rule (8) of

Rule 21A, which reads as under:

“(8) A person promoted under this rule shall be entitled to

seniority only from the date of order of promotion after

selection in accordance with these rules and shall, in all

cases, be placed below the persons promoted in accordance

with the procedure for promotion contained in sub-rule (5)

prior to the promotion of such person under these rules.”

11.The gravamen of the dispute, thus, is that if the promotees

have been promoted in accordance with law, in pursuance of the

Office Memorandum dated 29.12.1995, then they would rank as

senior to the appellants who were regularised only on 20.11.2001

in pursuance of the 7

th

Amendment dated 2.8.2001. It was in this

background that the impugned seniority list of the ‘Assistant

Engineer’ was published on 15.5.2007 with the promotees being put

above the direct appointees. It is this seniority list that has

been assailed in the writ petition, which has been dismissed by

the impugned order.

12.Learned counsel for the appellants sought to contend before

us that in the absence of consultation with the UPPSC, the

8

appointment of the private respondents cannot be stated to be

regular and, in fact, suffers from an inherent legal defect. The

fact that consultation with the UPPSC was dispensed with

initially under the umbrella of the 13

th

Amendment to the said

Regulations, notified on 7.9.1994, and that umbrella having been

lifted by the said Amendment being struck down by the Allahabad

High Court vide judgment dated 19.10.1995, clearly made the

appointment of the private respondents illegal. The endeavour to

then bring the same within the 4

th

Amendment to the said Rules,

notified on 8.9.1993, is to no avail as the post of ‘Assistant

Engineer’ was not mentioned as one of the posts for which

consultation with the UPPSC had been dispensed with. Thus, while

the blanket lifting of consultation with the UPPSC, as mentioned

aforesaid, was struck down, the other amendment to the said Rules

did not cover the case of the private respondents.

13.On the other hand, the State Government sought to rebut this

argument on the ground that at best this was an irregular

appointment and not an invalid appointment as there could always

be ex post facto consultation with the UPPSC. This was, of

course, an argument in the alternative, however, after not being

able to really establish that the 4

th

Amendment to the Rules

dated 8.9.1993 did not specifically cover the post of the

‘Assistant Engineer’. We may add that there can be no real

quibble with the proposition that such consultation, even as per

the State Government’s answer to the RTI query raised by the

appellants, was required wherever posts come within the purview

9

of the Commission and thus, consultation is necessary insofar as

the case of the promotion from ‘Junior Engineer’ to ‘Assistant

Engineer’ is concerned.

14.The second limb of the submission of Mr. P.N. Mishra,

learned Senior Counsel appearing for the State Government, rested

on the support derived from the Constitution Bench judgment of

this Court in Direct Recruit Class II Engineering Officers’

Association v. State of Maharashtra & Ors.

3

In the concluding

paragraph number 47, laying down the propositions in respect of

inter se seniority of promotees and direct appointees, it was

stated in sub-paragraph (B) as under:

“(B) 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.”

15.Since the challenge has been laid to the seniority list, it

was contended that even the officiating period of the promotees

was liable to be counted for their seniority in the promoted

post. To further support this argument Rule 28(4) was

specifically referred to, which deals with seniority and reads as

under:

“28. Seniority –

xxxx xxxx xxxx xxxx xxxx

(4) Notwithstanding anything in sub-rule (1) the inter se

seniority of persons appointed by direct recruitment and by

promotion shall be determined from the date of joining the

service in the case of direct recruits and from the date of

continuous officiation in the case of promotees and where

the date of continuous officiation of promotee and the date

3

(1990) 2 SCC 715.

10

of joining of the direct recruit is the same, the person

appointed by promotion shall be treated as senior;

Provided that where appointments in any year of recruitment

are made both by promotion and direct recruitment and the

respective quota of the source is prescribed, the inter se

seniority shall be determined by arranging the names in a

combined list in accordance with Rule 17 in such manner that

the prescribed percentage is maintained.”

16.Mr. Amarendra Sharan, learned Senior Counsel for the private

respondents, also sought to canvass the proposition that even

otherwise, consultation with the UPPSC was not mandatory in view

of the provisions of Article 320(3) of the Constitution of India,

as further enunciated by this Court in its Constitution Bench

judgment in State of U.P. v. Manbodhan Lal

4

. Learned counsel

also sought support from the 14

th

Amendment, which incorporated

Rule 21A (sub-rule (8) extracted aforesaid) to state that the

seniority of promotees has to be counted “only from the date of

order of promotion after selection in accordance with these

rules.” We may, however, note that this sub-rule is really in

respect of inter se seniority amongst the promotees.

17.We have examined the submissions of the learned counsel for

the parties.

18.The dispute, in our view, is a result of the ad hocism,

which took place at the inception when the amendment was made to

the said Act, 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

4

Supra.

11

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.

Yet, such a regular process never took place, but on the other

hand such ad hoc appointments were sought to be regularised qua

persons, who were recruited on or before 1.10.1986 as per the 3

rd

Amendment to the said Rules dated 7.2.1992. Even this amendment

was not to the benefit of the appellants as, though they had been

recruited on 25.8.1987, i.e., before the aforesaid amendment to

the Rules, yet the cut-off date was kept as 1.10.1986. It is

only subsequently, through the 7

th

Amendment to the said Rules

dated 2.8.2001, that the bar was further shifted to 29.6.1991 to

regularise persons like the appellants, and the appellants were

regularised in terms of the Office Memorandum dated 20.11.2001.

These amendments were carried out in consultation with the

Governor, who was pleased to amend the Rules.

19.The object of discussing the aforesaid process of the

appointment of appellants is to highlight that it is not as if

the appellants are persons who have been appointed through a

12

normal process, but were appointments made by a stop gap

arrangement, which was regularised.

20.Insofar as private respondents 5-10 are concerned, they are

promotees. They were Junior Engineers. In terms of the 50 per

cent quota as per Rules, they were drawn and promoted as

‘Assistant Engineers’. The Departmental Promotion Committee for

promotion of the Junior Engineers to the post of the ‘Assistant

Engineer’ was held on 27.5.1995. There is some merit in the

contention raised by the learned Senior Counsel for the State

Government that at the relevant time the 13

th

Amendment 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. It is, however, not in

dispute that this judgement of the Allahabad High Court has

become final. Not only that, the interpretation of Article

320(3) of the Constitution as enunciated in State of U.P. v.

Manbodhan Lal

5

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.

21.Faced with the aforesaid position, the course of action was

sought to be justified by resting it on the 4

th

Amendment to the

5

Supra.

13

Rules, dated 8.9.1993, an aspect, which has found favour with the

High Court, 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 the such posts. We, thus, fail to

appreciate as to how the High Court could have taken aid of this

amendment to justify the action of the concerned authorities.

We, thus, have no hesitation in holding that such consultation

was mandatory but was not done. The fact that consultation was

done away as not necessary for certain posts itself implies that

it would be required for the posts not so mentioned.

22.Simultaneously, we are also of the view that the learned

Senior Counsel for the State Government is right in contending

that this is an irregularity and not an illegality, and such

irregularity can always be cured through prospective

consultation.

23.We may also add, as noted above, that insofar as sub-rule

(8) of Rule 21A of the said Rules is concerned, that would not

aid the present dispute as it refers to the inter se seniority

amongst the promotees.

24.Rule 28 of the said Rules, no doubt, stipulates that inter

se seniority of the persons appointed by direct recruitment would

be determined from the date of joining the service. Once again,

as noticed above, the ad hoc appointment of the appellants was

regularised from a subsequent date of 20.11.2001 and, thus, they

14

can only claim appointment for inter se seniority from that date.

This sub-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.

25.We do find it 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.

26.Be that as it may, in order to cure the defect which is

apparent insofar as the confirmation of the private

respondents/promotees is concerned, we consider it appropriate to

direct that the State Government should move the UPPSC for

consultation within a maximum period of two months from today,

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. We make it

clear that with the consultation of the UPPSC, a quietus must be

put to this dispute in terms of what we have observed and no

15

further litigation should be entertained in this behalf, in case

the UPPSC concurs.

27.The appeals are accordingly disposed of in terms aforesaid

leaving the parties to bear their own costs.

..….….…………………….J.

[Kurian Joseph]

...……………………………J.

[Sanjay Kishan Kaul]

New Delhi.

August 09, 2018.

16

ITEM NO.1501 COURT NO.4 SECTION III-A

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Civil Appeal No(s). 10829/2014

AJAY KUMAR SINGH & ANR. Appellant(s)

VERSUS

THE STATE OF UTTAR PRADESH & ORS. Respondent(s)

WITH

C.A. No. 10828/2014 (III-A)

Date : 09-08-2018 These appeals were called on for Judgment today.

For Appellant(s) Mr. Shekhar Kumar, AOR

Mr. Kabir Dixit, AOR

For Respondent(s) Mr. Vishnu B. Saharya, Adv.

Mr. Viresh B. Saharya, Adv.

For M/S. Saharya & Co.

Mr. Chira Ranjan Addy, AOR

M/S. Lawyer S Knit & Co, AOR

Mr. Kamlendra Mishra, AOR

Mr. Rajeev K. Dubey, Adv.

Mr. Gunnam Venkateswara Rao, AOR

Hon’ble Mr. Justice Sanjay Kishan Kaul pronounced the

reportable Judgment of the Bench comprising Hon’ble Mr. Justice

Kurian Joseph and His Lordship.

The appeals are disposed of.

Pending interlocutory application(s), if any, is/are disposed

of.

(JAYANT KUMAR ARORA) (RENU DIWAN)

COURT MASTER ASSISTANT REGISTRAR

(Signed reportable Judgment is placed on the file)

17