SIRAJ AHMAD versus STATE OF UTTAR PRADESH & ANR.

Citation: [2019] 16 S.C.R. 1131 · Decided: 13-12-2019 · Supreme Court of India · Bench: S.A. BOBDE, BHUSHAN RAMKRISHNA GAVAI, SURYA KANT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SIRAJ AHMAD
v.
STATE OF UTTAR PRADESH & ANR.
(Civil Appeal No. 9412 of 2019)
DECEMBER 13, 2019
[S. A. BOBDE, CJI., B. R. GAVAI AND SURYA KANT, JJ.]
U.P. Development Authorities Centralised Service Rules, 1985
– Sub.r.(3) of r.24 – Promotion – Claim for – Appellant underwent
the selection process conducted by the State under the provision
of the Rules, 1985 and was appointed on ad-hoc basis on the post
of Junior Engineer by Respondent No.1 – While in service
appellant obtained the degree in B.Sc.-Engineering – Thereafter,
appellant sought promotion u/sub. r.(3) of r.24 of the Rules –
Appellant was not promoted – Writ petition by appellant was
rejected by the High Court – The State contended that the
appointment was not made with the concurrence of U.P. Public
Service Commission, therefore, appellant’s appointment was illegal
– Appellant contended that he was entitled for promotion as he
was continuously employed from the date of initial appointment –
On appeal, held: The case of appellant was squarely covered by
the judgment of the Constitution Bench in the case of Direct Recruit
Class II Engineering Officers Association – It was not in dispute
that except the concurrence of the U.P. Public Service Commission
the appointment of the appellant was made after following the
procedure prescribed under the said Rules – The appointment of
the appellant at the most can be termed as irregular and not illegal
– The appellant had uninterruptedly served till the regularisation
of his service which was made in accordance with the Rules –
Further, the Respondent had issued an office memorandum dated
11.03.1994 providing for relaxation of the condition which
prescribed minimum 10 years service on the post of Junior
Engineer – By the said office memorandum, the government
provided that 5% of the posts out of 50% promotional quota were
to be reserved for such Junior Engineers, who had passed B.E.
or A.I.M.E. Examination – Appellant possessed the said
qualification – The High Court in another similarly circumstanced
case had directed for consideration for the purpose of promotion
   [2019] 16 S.C.R. 1131
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SUPREME COURT REPORTS
[2019] 16 S.C.R.
to the higher post – However, the High Court in the case of the
appellant rejected his claim for promotion – The High Court had
considered the case of two employees differently when they were
similarly circumstanced – Therefore, 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 – The High Court erred in
dismissing the petition of the appellant – Service Law.
Allowing the appeal, the Court
HELD: 1. The Constitution Bench in Direct Recruit Class
II Engineering Officers Association case 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 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. [Para 18] [1140-E-G]
2. 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 uninterruptedly till the
regularisation of his service in accordance with the rules, the
period of officiating service will be counted. [Para 20] [1141-D]
3. 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. [Pa

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