KUMAR SINGH & ANR. versus THE STATE OF UTTAR PRADESH & ORS.

Citation: [2018] 9 S.C.R. 503 · Decided: 09-08-2018 · Supreme Court of India · Bench: KURIAN JOSEPH · Disposal: Disposed off

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Judgment (excerpt)

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AJAY KUMAR SINGH & ANR.
 v.
THE STATE OF UTTAR PRADESH & ORS.
(Civil Appeal No. 10829 of 2014)
AUGUST 09, 2018
[KURIAN JOSEPH AND SANJAY KISHAN KAUL, JJ.]
Service Law:
Seniority – Inter-se seniority between promotees and direct
recruits – Promotees placed higher than direct recruits in seniority
list for the post of ‘Assistant Engineer’ – Direct recruits challenged
the seniority list contending that the appointment of promotees were
constitutionally invalid as the same were without consultation with
Uttar Pradesh Public Service Commission (UPPSC) as envisaged
in Art.320(3) of the Constitution – Held: The promotees as well as
direct recruits were initially appointed on ad hoc basis as a stop-
gap arrangement – Appointment of direct recruits, thus was not
through a regular process of UPPSC – They were later regularised
in terms of Office Memorandum dated 20.11.2001 – The High Court
was not justified in relying on 4th amendment to the Centralised
Services Rules, 1985 because therein post of ‘Assistant Engineer’
was not mentioned as the post for which consultation with UPPSC
was exempted – Such consultation was mandatory – However, this
is irregularity and not illegality, and such irregularity can be cured
through prospective consultation – The relevant date for inter-se
seniority for the direct recruits would be their date of regularisation
and for the promotees would be date of their continuous officiation
– The dates of officiation of promotees are prior to the appointment
of the direct recruits – State is directed to move UPPSC for
consultation – Constitution of India – Art. 320(3) – Uttar Pradesh
Urban Planning and Development Act, 1973 [as amended by Uttar
Pradesh Urban Planning and Development (Amendment and
Validation) Act, 1985] – s. 5A – Uttar Pradesh Development
Authorities Centralised Services Rules, 1985 – rr. 8, 21 and 28,
Schedule III – Uttar Pradesh Public Service Commission (Limitation
of Function) Regulations, 1954.
  [2018] 9 S.C.R. 503
        503
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SUPREME COURT REPORTS
[2018] 9 S.C.R.
Disposing of the appeals, the Court
HELD:  1. The dispute is a result of ad hocism, which took
place at the inception when the amendment was made to the Uttar
Pradsesh Urban Planning and Development Act, 1973, 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.
The appellants were regularised in terms of the Office
Memorandum dated 20.11.2001. Thus, it is not as if the appellants
are persons who have been appointed through a normal process.
It is 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.[Paras 18, 19 and 25]
[514-E-G; 515-B-C; 516-F-G]
Sushil Chandra Srivastava v. State of U.P. and Ors
1996 All LJ 1171 ; State of U.P. v. Manbodhan Lal
[1958] SCR 533 – referred to.
2. Private respondents 5-10 are promotees. The
Departmental Promotion Committee for promotion of the Junior
Engineers to the post of the ‘Assistant Engineer’ was held on
27.5.1995. At the relevant time, the 13th Amendment to Uttar
Pradesh Public Service Commission (Limitation of Function)
Regulations, 1954, 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
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down by Allahabad High Court. Interpretation of Article 320(3)
of the Constitution in *Manbodhan Lal case, 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
manda

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