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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL No.9412    OF 2019 (Arising out of SLP(C) No. 30061 of 2017)

SIRAJ AHMAD    ...APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH & ANR.     .... RESPONDENT(S)

J U D G M E N T   

Leave granted.

2. Heard the learned Counsels for the parties.  

3. The appeal challenges the Judgment and Order dated

11.09.2017, passed by the division bench of Allahabad

High Court in W.P.(Service Bench) No. 1020 of 2015,

thereby dismissing the Writ Petition filed by appellant.  

4. The facts giving rise to the  present  appeal  are  as

under: The appellant was appointed on ad­hoc basis on the

post of Junior Engineer in the pay scale of Rs. 485­860/­

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by order dated 30.03.1987, issued by Respondent No. 1. It

is not in dispute that the said Order was issued with prior

approval of the Governor of Uttar Pradesh. It is also not in

dispute, that the said appointment was made after the post

was advertised and after the appellant underwent the

selection process conducted by the State under the

provisions of U.P. Development Authorities Centralized

Services Rules, 1985 (hereinafter referred as “the said

Rules”). Pursuant to the selection  and  appointment, the

appellant  joined with the Agra Development Authority on

08.04.1987. While in service the appellant obtained the

degree in B.Sc.­Engineering from Aligarh Muslim

University, Aligarh on 08.06.1987. The appellant thereafter

through proper channel communicated the respondents the

fact regarding obtaining of requisite qualification and being

eligible for consideration for promotion, to the post of

Assistant Engineer (Civil), in the Centralised Services under

Sub Rule (3) of Rule 24 of the said Rules. It is the case of

the appellant, that the State Government had sought

information from all the Development Authorities vide

communication dated 25.09.1987 with regard to the

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number of Junior Engineers possessing the degree of

Bachelor  of  Engineering  /  A.M.I.E. In  compliance to the

said communication the Vice­Chairman of Agra

Development Authority informed the State Government that

in Agra Development Authority appellant was the only

Junior Engineer, who was possessing the degree of

Bachelor of Engineering.

5. Since the appellant was not promoted, he made

various representations to the State seeking promotion. The

appellant had claimed the promotion from 18.01.1995, i.e.

the date on which the juniors to the appellant were

promoted. The appellant’s claim for promotion came to be

rejected  on 16.04.2015.  Hence the  appellant  approached

the division bench of the High Court by way of Writ

Petition. The petition came to be rejected. Hence, the

present appeal.

6. Shri P.S. Patwalia, learned Senior Counsel appearing

on behalf of appellant submits, that the appellant’s services

already stood regularised from 23.11.2002 and as such in

view of the law laid down by the Constitution Bench of this

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Court in the case of Direct Recruit Class – II Engineering

Officers Association vs. State of Maharashtra and

others1,  the appellant was entitled for promotion by

treating  his continuous service from the date of initial

appointment.

7. The learned Senior Counsel further submits that, as

a matter of fact the Allahabad High Court itself, in the case

of  Rajendra Prasad Dwivedi vs. State of U.P. and

others2,  vide  judgment and order dated 19.08.2011, had

directed the State Government to consider the case of said

Shri Dwivedi for promotion to the post of Assistant

Engineer after completion of 10 years of service as Junior

Engineer, provided they had a B.E./A.M.I.E. degree.  

8. It is further submitted, that vide subsequent Order

dated 09.11.2011, the Allahabad High Court had modified

its Order in view of the Judgment of the Constitution Bench

of this Court in  Direct Recruitment of Class – II

Engineering Officers  Association  (supra),  wherein it is

observed, that the petitioner therein, i.e. Rajendra Prasad

11990 (2) SCC 715 2Writ Petition No. 3421 of 1996

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Dwivedi, became eligible for promotion to the post of

Assistant Engineer as soon as he obtained qualification of

A.M.I.E. in 1993. He submits, that vide said Order, it was

held that if the promotion was given to any other Junior

Engineer, junior to the petitioner therein, the petitioner

therein was also eligible for promotion from the said date

along with consequential benefits. The learned Senior

Counsel submits that the learned Single Judge who passed

the Order in the case of Rajendra Prasad Dwivedi was the

same learned Judge heading the bench in the case of

present appellant and, as such, there was no reason as to

why the appellant ought not to have been given the same

benefit.

9. Per contra, Mr. V. Shekhar, learned Senior Counsel,

appearing on behalf of the State submits that, under the

rules it was necessary that the appointment was made with

concurrence of U.P. Public Service Commission. He

submits, undisputedly the appellant’s appointment was not

made with the  concurrence  of U.P. Public Service

Commission. It is therefore  submitted, that  as  such the

appellant’s appointment will  have to be termed as illegal.

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He therefore submits, that the High Court has rightly

refused  to take into consideration  the services of the

appellant, prior to the date on which his services came to

be regularised.  

10. The facts in the present case are not in dispute.

Undisputedly the appellant’s initial appointment in the year

1987 was after the advertisement was issued for the posts

in Centralised Services constituted under the said Rules. It

is also not in dispute, that the appellant was selected after

he  underwent the entire selection  process  by competing

with other persons, who had also applied for the said post.

The only issue that the learned Judges of the division

bench have found against the appellant is that the

appellant’s selection was not made in due consultation with

the U.P. Public Service Commission.

11. This court in the case of State of M.P. and ors. vs.

Lalit Kumar Verma3,  after  considering the Judgment of

Constitution Bench of this Court in the case of  Secy.,

State of Karnataka vs. Uma Devi(3)4, observed thus :

3(2007)1 SCC 575 4 (2006) 4 SCC 1

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“12. The question which, thus, arises for consideration, would be: Is there any distinction between “irregular appointment” and “illegal appointment”? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is “State”  within the  meaning  of  Article  12  of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional  scheme as  also  the  rules  have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to.”

12. It can thus be seen that this court has held that the

distinction between irregular appointment and illegal

appointment  is  clear. It  has been held  that in  the event

appointment is made in total disregard to the constitutional

scheme and the recruitment rules framed by the employer,

where the employer is a “State” within the meaning of

Article 12 of the Constitution of India, the recruitment will

be illegal one. It has however been held, that where

although, substantial compliance  with the constitutional

scheme, as also the rules have been made, the appointment

would become irregular in as much as the some provisions

of some rules have been adhered to.

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13. Subsequently another bench of this Court in the case

of State of Karnataka and Others vs. M. L. Kesari and

Others5  also had an occasion to consider the issue. The

Court observed thus :   

“7. It is evident  from the above that there  is an exception to the general principles against “regularisation” enunciated in Umadevi  (3) [(2006) 4 SCC 1] , if the following conditions are fulfilled:

(i)  The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments  will  be considered to  be illegal.  But where the person employed possessed the prescribed qualifications  and  was  working  against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.”

14. This court held, that where the appointment are not

made or continued against sanctioned posts or where the

5(2010) 9 SCC 247

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persons appointed do not possess the prescribed minimum

qualifications, the appointment  will be considered to be

illegal. However, when the person employed possessed the

prescribed qualifications and is working against the

sanctioned posts, but had been selected without

undergoing the process of open competitive selection, such

appointments are considered to be irregular.  

15. As already discussed herein above, the appellant had

applied in pursuance to the advertisement issued by State

for the post in the Centralised Services under the

provisions of the said rules. The appellant had participated

in the selection process along with the other competitors.

The appellant was possessing the requisite qualification

and was selected after competing with others and was

appointed against the sanctioned posts for a period of One

year. Undisputedly the appellant thereafter has

continuously rendered his services, till the date of

regularisation of his services i.e. on 23.11.2002 and even

thereafter till date. As such appellant’s case would be on a

much better pedestal that the one which fall for

consideration in the case of M.L. Kesari (Supra).

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16. It can thus  be seen that the only issue  which is

found against the appellant is that  prior to appointment

there was no concurrence of the U.P. Public Service

Commission. It can thus be seen that the appointment of

the appellant at the most can be termed as irregular and

not illegal.

17. It will be apposite to refer to the following

observations of the constitution bench judgment of this

Court in the case of Direct Recruit Class II Engineering

Officers Association  (supra), the constitution bench has

observed thus  “13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid  down in Patwardhan case [(1977)  3  SCC 399: 1977 SCC (L&S) 391: (1977) 3 SCR 775] was unsound and fit to be overruled, but no attempt was made to substantiate the plea. We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se

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seniority has to conform to the principles of equality spelt out by Articles 14 and 16. In Baleshwar Dass v. State of U.P. [(1980) 4 SCC 226: 1980 SCC (L&S) 531: (1981) 1 SCR 449] and Delhi Water Supply and Sewage Disposal Committee v. R.K. Kashyap [1989 Supp (1) SCC 194: 1989 SCC (L&S) 253: (1989) 9 ATC 784] , with which we are in agreement. In Narender Chadha v. Union of India [(1986) 2 SCC 157: 1986 SCC (L&S) 226: (1986) 1 SCR 211] the officers were promoted although without following the procedure prescribed under the rules,  but they continuously worked  for long periods of nearly 15­20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force  in  this view also.  We, therefore, confirm the principle of  counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed  for regular  substantive  appointments  in the service.”

18. The constitution bench  in unequivocal terms holds

that, if an appointment is made by way of stopgap

arrangement  without considering the claims of all the

eligible persons and without following the rules of

appointment, the experience of such appointment cannot

be equated with the experience of a regular appointee,

because of qualitative difference in the appointment. It

however holds, that if the appointment is made after

considering the claims of  all eligible  candidates  and the

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appointee continues in the post uninterruptedly till the

regularisation of his service  in accordance with the rules

made for regular substantive appointments, there is no

reason to exclude the officiating service for purpose of

seniority.

19. The constitution bench concludes thus : “47. To sum up, we hold that:

A)  Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.  

The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop­gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

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. …….”

20. It can thus clearly  be seen, that the  Constitution

Bench in unequivocal terms holds that, if the initial

appointment  is not made by following the procedure laid

down by the rules, but the appointee continues in the post

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uninterruptedly till the regularisation of his service in

accordance with the rules, the period of officiating service

will be counted.   

21. It is not in dispute, that except the concurrence of

the U.P. Public Service Commission the appointment of the

appellant has been made after following the procedure

prescribed under the said Rules. The appellant has

uninterruptedly served till the regularisation of his service

which was made in accordance with the rules. It can thus

be seen that the case of present appellant is squarely

covered by the judgment of the Constitution Bench in the

case of  Direct Recruit Class II Engineering Officers

Association (supra).

22. It is further to  be  noted that the  Respondent  had

issued an office memorandum dated 11.03.1994 thereby,

providing for relaxation of the condition which prescribed

minimum 10 years service in the post of Junior Engineer.

Schedule­3 to the said Rules provided, that for being

eligible to the promotion of Assistant Engineer along with

the educational qualification a candidate must possess 10

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years service, in the post of Junior Engineer on 01st July of

the selection year.  By the said  office  memorandum, the

Government provided that 5% of the posts out of 50%

promotional quota are to be reserved by extending

relaxation to such of the Junior Engineers, who have

passed B.E. or  A.M.I.E.  examination. It further  provided,

that in case candidates possessing B.E. / A.M.I.E.

examination were not available, the post should be filled in

from non Graduate Junior Engineers. As discussed herein

above, it is to be noted that the Government had also

sought information from the Development Authorities with

regard to the number of persons possessing the requisite

B.E. / A.M.I.E. degree. In response to the said

communication the Agra Development Authority had

intimated the respondent state the name of the appellant

being the only person possessing the said qualification.

23. We further fail to appreciate as to how the same High

Court could  have considered the case of two employees

differently when they were similarly circumstanced. It is not

in dispute that the present appellant as well as Rajendra

Prasad Dwivedi were selected through the same selection

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process though their orders of appointment differs. It will

be appropriate to refer to the observation  made  by the

Allahabad High Court in Writ Petition No. 3421 of 1996 in

the case of  Rajendra Prasad Dwivedi vs. State of U.P.

which reads thus:

“Upon perusal of the Government Orders dated 26th of August, 1992 as well as 11th of March, 1994, I find force in the submission of the petitioner, therefore,  I am of the view that as soon as the petitioner obtained the qualification of AMIE in 1993, he became eligible for promotion to the post of Assistant Engineer. Though only gaining the qualification does not create right of promotion, but I am of the view that if thereafter any promotion has been given to others particularly junior to the petitioner, the petitioner is liable to be considered for promotion from the said date alongwith consequential benefits.

In light of the law laid down by the Hon'ble Supreme Court, in the case referred to here­in­ above,  I  hereby also observe that the fact that the petitioner was not confirmed in the service, shall not come in the way of the petitioner's promotion as an impediment and the petitioners services even on ad hoc basis  on the post of  Junior Engineer  shall  be taken into consideration for the purpose of promotion to the higher post. Accordingly a direction is issued to the respondents to consider the petitioner's case for promotion to the higher post from the date of promotion of his junior within two months, after receipt of a certified copy of this order”

(emphasis supplied)

24. The above judgment of the learned Single Judge

dated 09.11.2011 was carried in appeal before the division

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bench of the said court. The division bench of the

Allahabad High Court in Special Appeal No. 75 of 2012 in

State of U.P. Vs. R. P. Dwivedi  in its Order dated

13.02.2014 observed thus:

“On due consideration of rival submissions, we find considerable force in the arguments of respondent. The condition of length of ten years' service was relaxed.  The respondent, though appointed  on ad­ hoc  basis  as  Junior  Engineer  on  24.02.1987,  had obtained the degree of  AMIE on 10.10.1993 before Sri Sunil Dutt Sharma and Sri Sajid Hasan who passed  the examination  in 1994. As  the vacancies were available and the private respondent was qualified to be considered for promotion in 1993, he should have been considered even prior to the aforesaid persons. ....”

(emphasis supplied)

 25. The State had also carried the said matter by way of

Special Leave Petition Civil (CC) No. 13830­31 of 2014

before this court. The SLP also came to be dismissed on

12.01.2015. The state thereafter preferred a Review

Petition, seeking review of the Judgment of division bench

in the case of State of U.P. vs. Rajendra Prasad Dwivedi

by way of Review Petition No. 188 of 2015. The said Review

Petition is also dismissed.

26. The only ground on which the High Court has

refused to consider the case of the appellant is that in the

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case of Rajendra Prasad Dwivedi, the court had not

considered the issue with regard to non­concurrence of the

U.P. Public Service Commission. At the cost of repetition as

discussed herein above the appointment of the appellant at

the most can be considered as irregular and not illegal.

27. It  is to be noted that the appellant has obtained

the  Bachelor  of  Science (Engineering)  degree in the  year

1987 and though Rajendra Prasad Dwivedi had obtained

the A.M.I.E. in 1993, taking into consideration that Sunil

Dutt Sharma and Sajid Hasan had obtained the degree of

A.M.I.E. in  1994, the  said  Rajendra Prasad Dwivedi  was

held to be entitled for promotion on 18.01.1995 i.e. the date

on which the said Sajid Hasan and Sunil Dutt Sharma were

promoted as Assistant Engineer from Junior Engineer. We

fail to appreciate the approach of the High Court in denying

the promotion to the appellant when all the other three i.e.

namely Rajendra Prasad Dwivedi,  Sajid Hasan and Sunil

Dutt Sharma were appointed in the year 1987 through the

same selection process and though Rajendra Prasad

Dwivedi had obtained the degree in 1993 and Sajid Hasan

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and Sunil  Dutt  Sharma had obtained  the  same  in 1994

whereas the appellant had obtained the said degree in

1987.  

28. It  could thus  be  seen  that, in  view of the  office

memorandum dated 11.03.1994, the appellant was entitled

to be promoted immediately after the issuance of the said

office memorandum as he possessed the requisite degree

when the said office memorandum was issued. In any case

the appellant is  entitled  to be promoted with effect  from

18.01.1995 i.e. the date on which the juniors to him were

promoted.  

29. As already discussed, the non­concurrence with the

U.P. Public Service Commission, at the most would make

the appointment of the appellant irregular and not illegal.

We are therefore of the considered view that the High Court

erred in dismissing the petition of the appellant. The appeal

deserves to succeed on more than one ground.

30. Hence, the following order:  (i) The appeal is allowed;

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(ii) The Judgment  and Order  passed by  the High

Court dated 11.09.2017 is quashed and set

aside; (iii) The Order passed by the Respondent No. 1,

dated 16.04.2015 is quashed and set aside.  (iv) It is held and  declared that the petitioner is

entitled to  promotion  to the  post  of  Assistant

Engineer (Civil) from the date on which his

junior possessing the Bachelor of Engineering /

A.M.I.E. has been promoted with all

consequential benefit. (v) In the facts and circumstances, there shall be

no order as to costs.

…....................CJI.                              [S.A. BOBDE]

......................J.                                                   [B.R. GAVAI]

......................J.                                                   [SURYA KANT]

NEW DELHI; DECEMBER 13, 2019.