R.S. GARG versus STATE OF U.P. AND ORS.

Citation: [2006] SUPP. 4 S.C.R. 120 · Decided: 27-07-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
R.S. GARG 
v. 
STATE OF U.P. AND ORS. 
JULY 27, 2006 
B 
[S.B. SINHA AND P.P. NAOLEKAR, JJ.] 
Service law-Regularisation-Ad hoc e111ployee appointed in violation 
of the Service rules does not hold any post-Such appointment is void ab 
C initio and cannot be regularized 
Service Law---Promotion--Service Rules provided that the candidate for 
promotion 11111st have been appointed substantively-3rd Respondent was 
appointed on ad hoc basis de'hors the Rules--£i:perience gained by him 
while acting in ad hoc capacity would not subserve the requirement of 
D promotion under the Rules-UP. Labour Department (Factories and Boilers 
Division) Officers Sen-'ice (Second Amendment) Rules, 1992--Rule 5(iii). 
Service Law-.Promotion·--Promotional post converted with a view to 
provide promotional avenues for Scheduled Caste candidates-Relaxation 
accorded in qualifoing service for the post so converted and 3rd Respondent, 
E a Scheduled Caste candidate promoted-Promotion challenged-On facts, held: 
Promotion was granted in undue haste-Documentary evidence showed that 
concerned authorities had 111ade up their mind to promote 3rd Respondent 
from the very beginning-Such action s111acked of mala fide--Besides case of 
3rd respondent was considered alone although 2 other candidates fulfilled the 
F same criteria-Even no seniority list was prepared at the time of constitution 
of the Departmental Promotion Commillee-Entire approach of the authorities 
was on~v for achieving a private interest--/n that sense, the a..:tion suffered 
from the vice of malice in law-Administrative Law-Natural Justice-Malice 
in law. 
G 
H 
Service Law-Promotion-Gross illegalities commilled by the State in 
granting promotion to 3rd Re~pondent thereby causing deprivation of legitimate 
right of promotion of 111ore meritorious and senior candidates -In the 
circumstances, fact that 3rd Respondent is working for about 9 years on the 
120 
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4 
R.S. GARG v. STATE OF U.P. 
121 
promotional post or that he would retire ajier one year whol~v immaterial- A 
Challenge against the order of promotion upheld-Directions passed by 
Supreme Court in exercise of its discretionGIJ' jurisdiction under Article 136 
of the Constitution-Constitution of India, 1950-Artic/e 136. 
Service Law-Reservation-Roster prepared to fill up posts by reserved 
categ01:V candidates-Jn terms of the 1994 Act, reservation was to be confined B 
to 2 J'Yrr-Conflict between the percentage of reservation and the roster-Held: 
Jn that event, the former shall prevail-Uttar Pradesh Public Services 
(Reservation for Scheduled Castes, Scheduled Tribes and Other Backward 
Classes) Act, 1994-Section 3. 
3rd Respondent, who belonged to the Scheduled Caste, was appointed 
as Assistant Director of Factories in the State of U.P. on ad-hoc basis in 
1987. In 1995, the appointment wa~.regularized. Subsequently, in 1997, 
c 
the post of Deputy Director of Factories (Chemical) was converted to the 
post of Deputy Director of Factories (Administration) with a view to 
provide promotional avenues for Scheduled Caste candidates. On the D 
ground that under the provisions of the Uttar Pradesh !'ublic Services 
(Reservation for Scheduled Castes, Scheduled Tribes and Other Backward 
Classes) Act, 1994, relaxation could be given to fulfil reservation quota, 
relaxation was given in qualifying service for the aforesaid post so 
converted and 3rd Respondent was promoted as Deputy Director of E 
Factories (Administration). Appellant, a colleague of 3rd Respondent, filed 
writ petition questioning the order of promotion passed in favour of 
Respondent No.3. High Court dismissed the petition. Hence the present 
appeal. 
In appeal before this Court it was contended (i) that the purported F 
conversion of the post of Deputy Director of Factories (Chemical) to 
Deputy Director of Factories (Admn.) was contrary to the Uttar Pradesh 
Labour Department (Factories and Boilers Division) Officers Service 
(Second Amendment) Rules, 1992 and it having been done with a view to 
favour the 3rd respondent, was illegal; ii) that the 3rd respondent was not G 
eligible to be promoted, as he did not complete 5 years' substantive service 
on the date of selection in terms of Rule S(iii) of the 1992 Rules and iii) 
that the order of promotion passed in his favour was malafide. It was 
contended that the promotion of 3rd Respondent was also illegal and 
unjust since by reason thereof the percentage of reservation in promotion 
H 
122 
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