August 11, 2018
A Supreme Court Bench of Judges Justice Kurian Joseph and Justice Sanjay Kishan Kaul in Ajay Kumar Singh & Anr v. The State of Uttar Pradesh & Ors, Civil Appeal No. 10829 of 2014 disposed of the appeal filed by the Direct appointees disputing promotion to the post of Assistant Engineer (Electrical & Mechanical) with a direction to consult UPPSC for promotion to Ad hoc appointees.
Facts of the case
This is a dispute between the promotees and the direct appointees 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 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 a
consultative process with the UPPSC, would be liable to be placed below the
direct appointees.
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.
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 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.
The said Rules were amended from time to time. As per the 3rd 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 7th 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.
In the meantime, parallelly, another story was unfolding in respect of the
promotees. The seed of the dispute was laid by the 4th 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 next development was on 7.9.1994, when the 13th 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 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 Ors1., 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."
The High Court noticed the Constitution Bench judgment of this Court in
State of U.P. v. Manbodhan Lal, 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."
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.
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 4th
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 could not be seriously disputed before us. The regularisation of these promotees was, however, made in pursuance of the
14th Amendment to the Rules, inserting Rule 21A, providing for
regularisation of services of ad hoc promotees working prior to 30.6.1998.
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."
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 7th 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.
Learned counsel for the appellants sought to contend before us that in the
absence of consultation with the UPPSC, the 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 13th 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 4th
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.
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 4th 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 of the Commission and thus, consultation is necessary insofar as the
case of the promotion from 'Junior Engineer' to 'Assistant Engineer' is
concerned.
While disposing of the petition the apex court said that "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
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 3rd 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 7th 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.
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 normal process, but were appointments made
by a stop gap arrangement, which was regularised.
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 13th 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 Lal5 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."
"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 further litigation should
be entertained in this behalf, in case the UPPSC concur."
Read the Judgment of Supreme Court of India in Ajay Kumar Singh & Anr v. The State of Uttar Pradesh & Ors, Civl Appeal No. 10829 of 2014 dated 9.8.2018
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