NARSINGH PRASAD Vs ANIL KUMAR JAIN .
Bench: DALVEER BHANDARI,DIPAK MISRA
Case number: C.A. No.-003153-003153 / 2012
Diary number: 36158 / 2011
Advocates: Vs
DINESH KUMAR GARG
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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.