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Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     No.       3153     OF      2012   (Arising out of SLP (c) No.  31935  of 2011)

NARSING PRASAD …………..Appellant

Versus

ANIL KUMAR JAIN & ORS.       …………Respondents  

J     U     D     G     M     E     N     T      

Dipak      Misra,     J   

Leave granted.

2. The present appeal by way of special leave under  

Article 136 of the Constitution of India is directed against the  

Judgment and Order dated 21.10.2011 passed by the High  

Court of Judicature at Allahabad Bench at Lucknow in Writ -

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Petition No. 1793 (SB) of 2011 whereby the Division Bench of  

the High Court quashed the Order dated 30.09.2011 of the  

Uttar Pradesh Avas Evam Vikas Parishad (for short, ‘the  

Parishad’) whereby it had decided that the present appellant,  

a Superintending Engineer, shall hold the post of Chief  

Engineer on officiating basis till the regular selection was  

made.  

3. The factual expose’, as has been unfurled, is that the  

post of    Chief Engineer fell vacant and the Parishad, after  

deliberation, appointed the appellant to officiate as the Chief  

Engineer.  The respondent, Anil Kumar Jain, invoked the  

extraordinary jurisdiction of the High Court challenging the  

said appointment on many a ground.  It was contended  

before the High Court that he was senior in the cadre of the  

Superintending Engineer and, therefore, the charge should  

have been given to him and not to a junior person; that he  

had an excellent service record and there was no reason to  

supersede him and compel a senior officer to work under a  

junior; that in the absence of merit selection or regular

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selection being made, a senior most person was to be given  

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charge unless he had any other  disqualification, and that  

when there was no disqualification as far as he was  

concerned, it was obligatory on the part of the Parishad to  

appoint him to function on officiating basis on higher post.  

In oppugnation  to the stand put forth by the first  

respondent, the appellant as well as the Parishad urged that  

while appointing the appellant herein by the Uttar Pradesh  

Avas Evam Vikas Prishad (Appointment and Conditions of  

Service of Chief Engineer) Regulations, 1990 (for short, “the  

Regulations”), especially Regulations 8 and 11 were kept in  

view; that the respondent in the Writ Petition was found  

more suitable to function on the higher post on officiating  

basis; that in the Parishad, most of the work is of civil nature  

and as the Writ Petitioner belongs to electrical cadre and not  

to the civil cadre the present appellant who has excellent  

track record in the civil cadre was selected to hold the post  

on officiating basis; and that even for a stop-gap  

arrangement, the merit for such a higher post is to be

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considered and that having been done, the action of the  

Parishad could not be flawed.  

4. The High Court took note of the rival submissions and  

opined that at no point of time, the criteria of merit had been  

considered before passing the Order;  that in the absence of  

merit selection, a senior most person is entitled to hold the  

charge unless there is any legal impediment;  that if the  

relevant regulations are properly understood, the Writ  

Petitioner would be eligible to be considered for the post of  

the Chief Engineer as no distinction can be made between  

the electrical and civil cadre; and that the Writ Petitioner was  

not ousted from the zone of consideration as has been  

admitted by the Parishad.  Being of this view, the High Court  

axed the Order passed by the Parishad and directed that in  

case any officiating arrangement is to be made, the Writ  

Petitioner’s case shall be first considered and he shall be  

given the charge unless there is any legal impediment till the  

regular selection is made.  The High Court further directed

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that the selection shall be made within a maximum period of  

two months.  

5. We have heard the learned counsel for the parties and  

perused the record.   

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6. The central issue that arises for consideration is  

whether the High Court is justified in expressing the view  

that the first respondent was entitled to hold the post of  

Chief Engineer till regular selection was made on the ground  

that he was the senior most in the feeding cadre.  Mr.  

Rohtagi, learned senior counsel, contended that regard being  

had to the sensitive nature of the post, the selection  

procedure was undertaken and, thereafter, the petitioner  

was found suitable to hold the post.  He has commended us  

to Regulation 11 of the Regulations to highlight that even for  

officiating purpose the selection procedure is to be adopted.  

He has invited our attention to the findings of the competent  

authority dated 30.09.2009 to substantiate the stand that  

there has been a selection.  Per contra, Mr. Garg, learned

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counsel for the respondent, would contend that Regulation  

11 would not be attracted as additional charge given for  

higher post was given to the respondent.  That apart, the  

learned counsel would urge that the factum of any kind of  

procedure being taken recourse to by the selection  

committee was not brought to the notice of the High Court  

and in any event, the findings of the competent -

authority on which reliance has been placed do not really  

reflect that the appropriate committee has taken the  

decision.    

7. On a perusal of the Order passed by the High Court, it is  

not clear that the finding of the selection committee was  

brought to the notice of the High Court.  For the first time, a  

document contained in Annexure  P-6 showing the order of  

the respondent No. 2 has been brought before this Court.  

The respondent No. 2 is the Chairman of the Uttar Pradesh  

Avas Evam Vikas Parishad.  Regulation 8 of the Regulations  

lays down the procedure for selection for promotion.  

Regulation 11 stipulates for preparation of list by the

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selection committee.  The selection committee is required to  

be constituted by the Board as per Regulation 7.  On a  

perusal of Annexure A-6, it appears that the decision is taken  

by the Chairman but not by the Board.  The High Court had  

directed that if any officiating appointment is to be made,  

the case of the first respondent shall be first considered and  

he shall be given the charge unless there is any legal  

impediment.  There is further -

direction to hold a regular selection within a maximum  

period of 2 months.   

8.  This Court had passed an order of status quo relating  

to promotional posts in certain civil appeals and the said  

order is still in force.  Thus, a regular promotion cannot take  

place and, therefore, the direction of the High Court in that  

regard is  untenable.  However, as in the interest of the  

administration, someone has to remain in charge, the  

employer, i.e., the Parishad can choose someone to hold the  

officiating charge.  Regard being had to the sensitive nature  

of the post and the duties to be performed by the

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incumbent, we think it appropriate to direct that the  

selection committee be constituted by the Board within a  

period of four weeks which shall consider the suitability of all  

the eligible candidates for the purpose of holding the  

additional charge of the post of the Chief Engineer.  It is  

hereby made clear that the decision in favour of any  

candidate to hold the additional charge would not enure to  

his benefit and no claim can be put forth on the said base at  

the time of consideration for regular promotion.  

Be it noted, before the High Court passed the order, the  

present appellant was holding the charge.  This Court, on  

24.11.2011, while issuing notice, had directed status quo as  

of that day to be maintained by the parties.  

9. Keeping in view the totality of circumstances, it is  

directed that till the Board takes a decision after getting the  

report of the selection committee, the interim order passed  

in this case shall remain in force.   

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10. In the result, the appeal is allowed to the extent  

indicated hereinabove and the order of the High Court is set  

aside leaving the parties to bear their respective costs.   

.....................................J.  [Dalveer Bhandari]

.....................................J.  [Dipak Misra]

New Delhi; March 27, 2012.