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[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7032/2013 (arising out of S.L.P.(Civil) No. 20506 OF 2011)

Union of India & Ors.                                                                   ….Appellants

Vs.

Shri G.R.Rama Krishna & Anr.                                                …..Respondents

J U D G M E N T

A.K.SIKRI,J.

1. Leave granted.

2. The respondent No.1 herein (hereinafter referred to as the respondent) was  

appointed as Engineering Assistant  (Mechanical) in Andaman Lakshdeep Harbour  

Works (ALHW) on ad-hoc basis with effect from 17.4.1979.  Though this ad-hoc  

period was of one year, the respondent continued to work in the capacity even  

thereafter  without  obtaining  the  approval  of  the  Department  of  Personnel  and  

Training.  The   services were continued as ALHW was facing lots of problems  

due to shortage of staff at various levels.  He was later on promoted as Inspector of  

Works on ad-hoc with effect from 11.11.1984.  This post was later on merged with  

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that of Junior Engineer and thus the respondent was accorded the status of Junior  

Engineer.

3. Next promotion from Junior Engineer is to the post of Assistant Engineer.  

Again on  ad-hoc basis, the respondent was promoted as Assistant Engineer with  

effect  from 23.9.1999.  He was given regular  promotion as Assistant  Engineer  

(Mechanical) on 2.6.2005 and was put on probation for a period of two years from  

that  date.   The  respondent  submitted  his  representation  dated  13.10.2008  for  

treating the ad-hoc period of Assistant Engineer from the 23.9.1999 to 24.8.2005  

as regular service for promotion to the next higher post i.e. Executive Engineer  

(Mechanial).   This  representation  was  turned down by the  authorities  with  the  

result  that the respondent was treated as regularly appointed Assistant  Engineer  

only from 24.8.2005.   

4.  On 10/16.1.2009, the  U.P.S.C. advertised the post of Executive Engineer  

(Mechanical)  for  filling  up  on  direct  recruitment  basis  and  fixed  the  date  of  

interview as 27.2.2009.  This move for filling up of the post of Executive Engineer  

(Mechanical) adopting the mode of direct recruitment was taken on the premise  

that no departmental candidate was available inasmuch as 8 years regular service  

as Assistant Engineer was needed for promotion to the post of Executive Engineer,  

and no departmental employee fulfilled this condition.

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5. The  respondent  filed  O.A.  before  the  Central  Administrative  Tribunal  

challenging the proposal of the UPSC to fill the post on direct recruitment basis  

contending that he was eligible to be considered for  such a promotion as after  

counting the ad-hoc period he had completed the requisite  number of  years  as  

Assistant Engineer.

6. This O.A. was dismissed by the Tribunal taking note of the recruitment rules  

as  per  which  regular  service  of  8  years  is  mentioned  as  qualifying  service  to  

become eligible for the post of Executive Engineer.  The relevant portion of the  

order of the Central Administrative Tribunal in this behalf reads as under:

“The point to be considered here is whether the applicant  has any legal right to be considered for the post of Executive  Engineer (Mechanical).  It is seen he was an ad-hoc appointee  for various periods of time from 23.3.1999 till his regularization  as Assistant Engineer on 29.4.2005.  His orders on 29.4.2005  appointing him as an Assistant Engineer on regular basis also  stipulated  that  he would be on probation for  two years.  The  applicant at the time of such regularization on 29.4.2005 did not  challenge the same nor did he make a representation at that time  for treating his previous service on ad-hoc basis from 23.3.99 to  29.4.2005  as  regular  service.   He  accepted  the  order  as  per  Annexure-A/1 together with the probation of two years period.  Having done this he cannot now come and make a claim that  his entire period from 23.3.99 onwards should be regularized so  that he can avail of the recruitment rules for being promoted as  Executive  Engineer  on  the  promotion  quota.   As  per  recruitment of Executive Engineer, the applicant is not eligible  since 8 years of regular service is required.”

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The Tribunal thus opined that the respondent had not made any case for quashing  

the steps taken by the U.P.S.C. for filling up the post of the Executive Engineer  

(Mechanical) through direct recruitment as recruitment rules.

7. Against the judgment of the Tribunal, the respondent filed the Writ Petition  

in the High Court of Calcutta (District : Andaman).  The High Court has allowed  

the  Writ  Petition  and modified  the  order  of  the  Tribunal  by  directing  that  the  

respondent  be  appointed  as  Executive  Engineer  after  observing  all  other  

formalities.  This direction is given by the High Court as a special case, without  

setting it as precedence,  as is clear from the operative portion of this order:

“In this case the petitioner by way of a stop gap arrangement  worked in an ad-hoc basis which in other words amounted to a  permanent arrangement since he was allowed to perform for a  long time since the post is still vacant.  There is no reason as to  why the  petitioner  who had  put  in  such  a  length  of  service  should  be  denied  an  opportunity  of  being  promoted  in  the  absence of any adverse situation against him.

Keeping  in  view  peculiar  facts  and  circumstances  of  the  present case, without setting it as a precedence and as a very  special case more so as the Petitioner has been working since  1990 till date in the capacity of Assistant Engineer which is a  feeder post of the Executive Engineer (Mechanical), we would  direct that he be appointed as Executive Engineer (Mechanical)  in the establishment of the Respondent No.1 after observing all  other formalities.”

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8. We are unable to appreciate the aforesaid approach of the High Court.  It is  

not disputed before us that as per the extant rules for promotion to the post of  

Executive Engineer (Mechanical) 8 years regular service as Assistant Engineer is  

imperative.  The Rules do not provide for any relaxation in this behalf.  This is  

clear from the reading of the said rules which provide for appointment to the post  

of  Executive  Engineer  (Mechanical).   As  per  the  Recruitment  Rules,  post  of  

Executive Engineer (Mechanical)  is  a selection post.   The mode of recruitment  

stated in the Rules is as under:

“By  promotion  failing  which  by  transfer  on  deputation  (including  short-term  contract)  and  failing  both  by  direct  recruitment.”

The Recruitment  Rules also stipulate eligibility condition in all  the three  

circumstances,  namely,  promotion,  transfer  on  deputation  as  well  as  direct  

recruitment.  In so far as filling up of this post by way of promotion is concerned,  

following  requirements  are  stipulated  for  a  candidate  to  be  eligible  in  that  

category:

“PROMOTION: Assistant Engineer (Mechanical) with 8 years regular service in the grade.”

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9. From the aforesaid, it becomes apparent that there are three alternate modes  

of recruitment to the Post, namely, (1) by promotion, failing which (2) by transfer  

on  deputation  (including  short  term  contract)  and  failing  both  (3)  by  direct  

recruitment.  No doubt, if some departmental candidate is available and eligible to  

be  considered,  the  promotion method is  to  be  resorted to  in  the  first  instance.  

However, no departmental candidate was available.  Concededly, the respondent  

had  not  completed  8  years  regular  service    as  Assistant  Engineer.   In  such  

circumstances  only  out  of  sympathy  the  High  Court  could  not  have  given the  

impugned direction.   This judicial sympathy resulting into a right in favour of  

respondent to appoint him contrary to the recruitment rules framed under proviso  

to Article 309 of the Constitution of India which are statutory in nature is clearly  

misplaced and needs to be denounced.    Such a direction is clearly unsustainable  

and is accordingly set aside.  As a result, the appeal is allowed restoring the order  

of the Tribunal dismissing the O.A. filed by the respondent.  No costs.

……………………………….J.    (K.S.Radhakrishnan)

…………………………………J.    (A.K. Sikri)

New Delhi, Dated: 23rd   August, 2013

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