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Supreme Court of India
Vinod Giri Goswami . vs The State Of Uttarakhand on 14 February, 2020Author: L. Nageswara Rao
Bench: L. Nageswara Rao, Hemant Gupta
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 1606 of 2020
[Arising out of Special Leave Petition (Civil) No.2779
of 2012]
Vinod Giri Goswami & Ors. …. Appellant(s)
Versus
The State of Uttarakhand & Ors. ….Respondent(s)
WITH
Civil Appeal Nos. 1607-1608 of 2020
[Arising out of S.L.P. (Civil) Nos.6847-6848 of 2012]
Civil Appeal Nos. 1609-1610 of 2020
[Arising out of S.L.P. (Civil) Nos.9885-9886 of 2012]
Civil Appeal Nos.1611-1612 of 2020
[Arising out of S.L.P. (Civil) Nos.9910-9911 of 2012]
Civil Appeal Nos.1614-1615 of 2020
[Arising out of S.L.P. (Civil) Nos.33762-33763 of 2012]
Civil Appeal Nos.1617-1618 of 2020
[Arising out of S.L.P. (Civil) Nos.33750-33751 of 2012]
Civil Appeal Nos.1619-1620 of 2020
[Arising out of S.L.P. (Civil) Nos.33759-33760 of 2012]
AND
Civil Appeal No.1621 of 2020
[Arising out of S.L.P. (Civil) Nos.18604 of 2019]
[1]
JUDGMENT
L. NAGESWARA RAO, J.
1. The above Appeals relate to the inter se seniority
dispute between the direct recruits and the promotee
Deputy Collectors in the State of Uttarakhand.
2. Civil Writ Petition No.187 of 2010 was filed by
3 promotee Deputy Collectors challenging the final
Seniority List dated 09.08.2010. They sought a
direction to the Principal Secretary, Department of
Appointment and Personnel, Government of
Uttarakhand, Dehradun to count the entire period of
their continuous service from the dates of their ad hoc
appointment for the purpose of seniority in accordance
with the proviso to Rule 24(4) of the Uttaranchal Civil
Services (Executive Branch) Rules, 2005 (hereinafter
referred to as ‘the 2005 Rules’). It was averred in the
Writ Petition that the Respondents were initially
appointed as Naib Tehsildars and thereafter promoted
[2]
and confirmed as Tehsildars. They pleaded that the
vacancies of Deputy Collectors in the promotion quota
were not filled up due to the allocation of Provincial Civil
Services Officers not being finalised after the formation
of the State of Uttarakhand. According to them, a
number of vacancies in the promotion quota of Deputy
Collectors were available but not filled up. The Writ
Petitioners were promoted on ad hoc basis on
11.02.2004, 28.02.2004 and 14.07.2004 and the direct
recruits who were appointed in the year 2005 were
shown as seniors to them in the final Seniority List that
was prepared on 09.08.2010. They relied upon the
proviso to Rule 24(4) of the 2005 Rules to claim that the
entire continuous officiating service rendered by them
should be taken into account for the purpose of
determining their seniority as Deputy Collectors. Writ
Petition Nos.188 of 2010 and 220 of 2010 were filed by
the promotee Deputy Collectors seeking relief similar to
the one prayed for in Writ Petition No.187 of 2010. All
the three Writ Petitions were heard together. The High
[3]
Court of Uttarakhand at Nainital allowed the Writ
Petitions and struck down the seniority list dated
09.08.2010. The State Government was directed to
prepare a final seniority list of Deputy Collectors within
six months from the date of the judgment while treating
the Writ Petitioners as having been appointed on a
regular basis with effect from the respective dates of
their initial ad hoc appointment in 2004. Relying upon
the proviso to sub-rule (2) of Rule 20 of the U.P. Civil
Servant (Executive Branch) Rules, 1982 (hereinafter
referred to as ‘the 1982 Rules’), the High Court held that
the Petitioners were entitled to count their seniority
from the date of their initial appointments. By referring
to the judgment of this Court in Direct Recruit Class II
Engineering Officers’ Association v. State of
Maharashtra & Ors.1, the High Court was of the
opinion that an ad hoc appointee shall be entitled to
count the entire service for seniority from the date of ad
hoc appointment to the date of regularisation if he was
in continuous service, without any interruption, till the
1 (1990) 2 SCC 715
[4]
date of his regularisation. The High Court observed that
although the initial appointments of the Writ Petitioners
were not in accordance with the procedure prescribed
for making appointment, they cannot be deprived of the
benefit of the service rendered by them on ad hoc basis
for the purpose of seniority and promotion. Accordingly,
the High Court by its judgment dated 07.09.2011
allowed the Writ Petition Nos.187 of 2010, 188 of 2010
and 220 of 2010. Later, Writ Petition No.58 of 2011 on
30.11.2011 was disposed of in terms of the judgment in
Writ Petition No187 of 2010 and other Writ Petitions.
3. Civil Appeal @ S.L.P. (Civil) Nos.6847-6848 of 2012,
Civil Appeal @ S.L.P. (Civil) Nos.9885-9886 of 2012, Civil
Appeal @ S.L.P. (Civil) Nos.9910-9911 of 2012, Civil Appeal
@ S.L.P. (Civil) Nos.33762-33763 of 2012, Civil Appeal @
S.L.P. (Civil) Nos.33759-33760 of 2012 and Civil Appeal @
S.L.P. (Civil) Nos.33750-33751 of 2012 and Civil Appeal @
S.L.P. (Civil) No. 2779 of 2012 were filed by the direct recruit
Deputy Collectors and the State of Uttarakhand assailing
the legality of the judgment dated 07.09.2011 in Writ
[5]
Petition Nos.187 of 2010, 188 of 2010, 220 of 2010 and the
judgment dated 30.11.2011 in Writ Petition No.58 of 2011.
During the course of hearing of the above Special Leave
Petitions, this Court by an order dated 11.03.2015 directed
the State Government to determine the deficiencies in the
direct recruit/ promotee quota in the category of Deputy
Collectors from year to year since the formation of the State
in the year 2000. This Court was of the opinion that the said
exercise was necessary for the purpose of deciding the
adjustment of the direct recruits/ promotees in the quota
earmarked for them. In compliance of the directions issued
by this Court on 11.03.2015, the Government of
Uttarakhand determined the year-wise vacancies for direct
recruits and promotees from 2000 onwards. On the basis of
the Office Memorandum dated 21.10.2015, the final
Seniority List of Deputy Collectors was prepared by the
State Government on 11.01.2017. Thereafter, during the
course of the hearing of the Appeals on 25.04.2018, an
objection was taken on behalf of the Respondents/
promotees to the Office Memorandum dated 21.10.2015
that the quota earmarked for promotees was shown to have
been occupied by officers who continued to work in the
[6]
State of Uttar Pradesh till their retirement. The promotees
contended that the personnel who did not join in the State
of Uttarakhand in spite of their allocation cannot be shown
to have occupied the quota for promotees to the detriment
of the Respondents in the above Appeals. As the dispute
relating to the correctness of the Office Memorandum dated
21.10.2015 was raised for the first time by both sides, this
Court permitted the promotees to approach the High Court
for resolution of their grievances.
4. Writ Petition No.299 of 2018 was filed by Bhagwat
Kishore Mishra and 11 others questioning the Office
Memorandum dated 21.10.2015 relating to the
determination of year-wise vacancies of Deputy Collectors
w.e.f. 2000-2001 to 2006-2007. By a judgment dated
22.05.2019, the High Court disposed of the Writ Petition
holding that the year-wise vacancy position of Deputy
Collectors (Entry Level) of the promotees and the direct
recruit quota for the period from 2000-2001 to 2006-2007
has been correctly reflected in the Office Memorandum
dated 21.10.2015. According to the High Court, final
allotment orders under the Uttar Pradesh Reorganization
Act, 2000 (hereinafter referred to as ‘the Act’) started from
[7]
23.04.2004 and ended on 02.10.2015. As per Section 73(2)
of the said Act, the officers in the cadre of Deputy Collectors
(Entry Level) have been deemed to be allotted to State of
Uttarakhand w.e.f. 09.11.2000. Thereafter, the High Court
was satisfied with the exercise conducted by the
Government in computation of the year-wise vacancy
position for direct recruits and allottees from 2000-2001 to
2006-2007. In such view, the High Court upheld the Office
Memorandum dated 21.10.2015. Civil Appeal @ S.L.P.(Civil)
No.18604 of 2019 has been filed by the unsuccessful
promotee Deputy Collectors challenging the judgment of the
High Court which upheld the Office Memorandum dated
21.10.2015.
5. It was contended on behalf of the promotees that the
judgment of the High Court dated 07.09.2011 directing the
benefit of the ad hoc service to be given to the promotees
does not call for interference. They relied upon the proviso
to sub-rule (4) of Rule 24 of the 2005 Rules to submit that
they have a right to claim that the period of continuous
officiation prior to the dates of their regular appointment
should be counted for seniority. It was argued that the
initial promotion on ad hoc basis in the year 2004 was after
[8]
a process of selection. They were continuously discharging
their duties as Deputy Collectors till they were selected by
the Public Service Commission and regularly appointed in
the year 2007. If their service from 2004 is treated as
regular, the direct recruits who were appointed in 2005
cannot be shown as seniors to them in the seniority list of
Deputy Collectors. The grievance raised by them regarding
the Office Memorandum that was issued by the Government
of Uttarakhand on 21.10.2015 is that the Deputy Collectors
who were allotted to the State of Uttarakhand but continued
to work in the State of Uttar Pradesh were shown to have
occupied the post of Deputy Collectors in the promotee
quota. According to them, some of the Deputy Collectors
who continued to work in the State of Uttar Pradesh have
retired on attaining the age of superannuation. For all
practical purposes including the payment of pension, they
cannot be treated to have held a civil post in the State of
Uttarakhand. Inclusion of their names in the seniority list of
Deputy Collectors has been done only to deprive the
promotees the legitimate seniority to which they were
entitled. The implementation of the judgments dated
30.11.2011 in Writ Petition No.58 of 2011 and 07.09.2011 in
[9]
Writ Petition Nos.187 of 2010, 188 of 2010, 220 of 2010 and
the deletion of those Deputy Collectors who never worked in
the State of Uttarakhand from the promotee quota would
result in the promotees being accorded their rightful place
in the seniority list.
6. On the other hand, the direct recruits submitted that
the promotee Deputy Collectors are not entitled to claim
benefit of their ad hoc service as their initial appointments
in 2004 were contrary to the Rules. They alleged that some
of the promotees were not confirmed in the post of Tehsildar
and in any event, the recruitment process as prescribed by
the relevant rules was not followed while making the stop
gap arrangement in the year 2004. It was the case of the
direct recruits that the substantive appointment of the
promotees was only in 2007 and in no event could they
claim the benefit of services rendered by them in
accordance with the Uttaranchal Government Servant
Seniority Rules, 2002 (hereinafter referred to as ‘the 2002
Rules’). The direct recruits justified the judgment of the
High Court dated 22.05.2019 by arguing that the
adjustment of the direct recruits and promotees was done
strictly in accordance with the Act and the applicable Rules.
[10]
7. On behalf of the State of Uttarakhand, it was
contended that no final order with respect to allocation of
Deputy Collectors could be passed in view of the interim
orders passed by the Uttarakhand High Court and this Court.
Though the allotment of Deputy Collectors commenced in
2000, the exercise ultimately was concluded only on
02.09.2015. All allotments made of the Deputy Collectors
who were shown to have occupied the promotee quota were
made w.e.f. 09.11.2000. Though it is a fact that some
officers who were allotted to the State of Uttarakhand
continued to work in the State of Uttar Pradesh and retired
there, for all practical purposes they would have to be
treated as employees of the State of Uttarakhand after the
final allotment has been made. It was submitted by the
learned counsel for the State of Uttarakhand that due care
and caution was taken in ensuring that the allotment of
promotees and direct recruits was done year-wise by taking
into account the vacancies that were available within the
quota earmarked for direct recruits and the promotees.
8. Before we proceed further, it is relevant to refer to the
statutory regime. The reorganization of the State of Uttar
[11]
Pradesh was undertaken in the year 2000 pursuant to which
the Uttaranchal State was formed. The Uttar Pradesh
Reorganization Act, 2000 (referred to as ‘the Act’) came into
effect from 09.11.2000. Section 73 of the Act of 2000 deals
with the allotment of public servants who were serving in
the State of Uttar Pradesh before the Act of 2000 came into
force. According to sub-Section 2 of Section 73, the Central
Government is empowered to determine final allotment of
personnel to the respective successor State and is entitled
to specify the date with effect from which such allotment
would take effect or deemed to have taken effect.
9. Recruitments to the post of Deputy Collector were
originally governed by the U.P. Civil Servant (Executive
Branch), Rules, 1982. A Deputy Collector is appointed by
direct recruitment through a competitive examination
conducted by the Public Service Commission and by
promotion from amongst the permanent Tehsildars. Rule 16
provides the procedure for recruitment under the 1982
Rules in respect of promotions according to which the
criteria for promotion would be merit which would be
determined in accordance with the Uttar Pradesh Promotion
by Selection in consultation with Public Service Commission
[12]
(Procedure) Rules, 1970. Part VI of the 1982 Rules dealt
with the Appointment, Probation, Confirmation and Seniority.
Rule 23 thereof pertains to Seniority which shall be
determined from the date of substantive appointment. The
proviso to Rule 23 postulates that persons appointed in
excess of their quota shall be brought down in seniority.
10. The Uttarakhand Civil Services (Executive Branch)
Rules, 2005 were notified on 17.01.2006. ‘Substantive
appointment’ is defined in Rule 3(i) which is as follows:
“(i) “Substantive appointment” means an
appointment not being an ad hoc appointment, on
a post in the cadre of the service and made after
selection in accordance with the rules and, if there
are no rules, in accordance with the procedure
prescribed for the time being by executive
instruction issued by the Government.”
Rule 24(4) which is in pari materia with Rule 20(2) of
the 1982 Rules empowers the appointing authority to make
appointments on temporary or ad hoc basis according to the
list prepared under sub-Rule 1. Sub-Rule 1 of Rule 24
provides that appointment by promotion shall be made on
the basis of the list prepared under Rule 16. The list
prepared under Rule 16 is on the basis of the merit
[13]
determined in accordance with the Uttar Pradesh Promotion
by Selection in consultation with Public Service Commission
(Procedure) Rules, 1970. In case no candidate is available
according to the list prepared under Rule 24(1),
appointments can be made on an ad hoc basis from
amongst the qualified candidates. Such appointments can
be made only for a period of one year. A person who is
promoted on a temporary basis, and subsequently approved
by the Commission is conferred a benefit under the proviso
to sub-rule (4) of Rule 24 to claim the entire continuous
service rendered by him on a post within the promotee
quota.
11. It is also relevant to refer to the Uttaranchal
Government Servant Seniority Rules, 2002. ‘Substantive
appointment’ is defined in Rule 4(h) as :
“An appointment not being an ad hoc appointment
on a post in the cadre of the service made after
selection in accordance with the service rules
relating to that service. Seniority shall be
determined from the date of the order of
substantive appointment when appointments are
made by them by promotion or by direct
recruitment.”
[14]
12. Essentially, two points require to be determined in
these Appeals. The first relates to the right of the
promotees to count the period of their ad hoc service for the
purpose of seniority. The second pertains to the correctness
of the Office Memorandum dated 21.10.2015. In Direct
Recruit Class II Engineering Officers’ Association
(supra), this Court held that the seniority of a person
has to be counted from the date of his initial
appointment if he was appointed in a post in
accordance with the Rules. The corollary is that where
the initial appointment is only ad hoc and not according
to Rules and made as a stop gap arrangement, the
officiation in such post cannot be taken into account for
determining seniority. It was further held that the
period of officiation can be counted if the initial
appointment is not made by following the procedure laid
down by the Rules but the appointees continued in the
post uninterruptedly till the regularisation of his service
in accordance with the Rules. This Court settled a
controversy relating to the application of the principles
[15]
laid down in Direct Recruit Class II Engineering
Officers’ Association (supra) by a judgment in State
of West Bengal & Ors. v. Aghore Nath Dey & Ors.2
It was held as follows:
“22. There can be no doubt that these two
conclusions have to be read harmoniously, and
conclusion (B) cannot cover cases which are
expressly excluded by conclusion (A). We may,
therefore, first refer to conclusion (A). It is clear
from conclusion (A) that to enable seniority to
be counted from the date of initial appointment
and not according to the date of confirmation,
the incumbent of the post has to be initially
appointed ‘according to rules’. The corollary set
out in conclusion (A), then 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 posts
cannot be taken into account for considering the
seniority’. Thus, the corollary in conclusion (A)
expressly excludes the category of cases where
the initial appointment is only ad hoc and not
according to rules, being made only as a
stopgap arrangement. The case of the writ
2 (1993) 3 SCC 371
[16]
petitioners squarely falls within this corollary in
conclusion (A), which says that the officiation in
such posts cannot be taken into account for
counting the seniority.
23. This being the obvious inference from
conclusion (A), the question is whether the
present case can also fall within conclusion (B)
which deals with cases in which period of
officiating service will be counted for seniority.
We have no doubt that conclusion (B) cannot
include, within its ambit, those cases which are
expressly covered by the corollary in conclusion
(A), since the two conclusions cannot be read in
conflict with each other.
24. The question, therefore, is of the category
which would be covered by conclusion (B)
excluding therefrom the cases covered by the
corollary in conclusion (A).
[17]
25. In our opinion, the conclusion (B) was added
to cover a different kind of situation, wherein
the appointments are otherwise regular, except
for the deficiency of certain procedural
requirements laid down by the rules. This is
clear from the opening words of the conclusion
(B), namely, ‘if the initial appointment is not
made by following the procedure laid down by
the ‘rules’ and the latter expression ‘till the
regularisation of his service in accordance with
the rules’. We read conclusion (B), and it must
be so read to reconcile with conclusion (A), to
cover the cases where the initial appointment is
made against an existing vacancy, not limited to
a fixed period of time or purpose by the
appointment order itself, and is made subject to
the deficiency in the procedural requirements
prescribed by the rules for adjudging suitability
of the appointee for the post being cured at the
time of regularisation, the appointee being
eligible and qualified in every manner for a
regular appointment on the date of initial
appointment in such cases. Decision about the
nature of the appointment, for determining
whether it falls in this category, has to be made
on the basis of the terms of the initial
appointment itself and the provisions in the
[18]
rules. In such cases, the deficiency in the
procedural requirements laid down by the rules
has to be cured at the first available
opportunity, without any default of the
employee, and the appointee must continue in
the post uninterruptedly till the regularisation of
his service, in accordance with the rules. In such
cases, the appointee is not to blame for the
deficiency in the procedural requirements under
the rules at the time of his initial appointment,
and the appointment not being limited to a fixed
period of time is intended to be a regular
appointment, subject to the remaining
procedural requirements of the rules being
fulfilled at the earliest. In such cases also, if
there be any delay in curing the defects on
account of any fault of the appointee, the
appointee would not get the full benefit of the
earlier period on account of his default, the
benefit being confined only to the period for
which he is not to blame. This category of cases
is different from those covered by the corollary
in conclusion (A) which relates to appointment
only on ad hoc basis as a stopgap arrangement
and not according to rules. It is, therefore, not
correct to say, that the present cases can fall
within the ambit of conclusion (B), even though
[19]
they are squarely covered by the corollary in
conclusion (A).”
13. In the instant case, the promotees were appointed
on ad hoc basis in the year 2004. There is no dispute
regarding their appointment on a regular basis in the
year 2007. According to the 1982 Rules and the 2005
Rules, appointment by promotion to the post of Deputy
Collector shall be as per the Promotion for Selection in
consultation with the Uttar Pradesh Promotion by
Selection in Consultation with Public Service
Commission (Procedure) Rules, 1970. Procedure for
promotion is laid down in the 1970 Rules which provide
that the eligibility list or lists have to be forwarded by
the State Government to the Commission which
conducts the selection. The appointment of the
promotees in the year 2004 is on ad hoc basis for a
period of one year without following the procedure
prescribed under the Uttaranchal Promotion by
Selection in consultation with Public Service Commission
(Procedure) Rules, 2003. As the promotions in 2004
[20]
were made in clear violation of the Rules, the promotees
are not entitled to claim seniority from the dates of
initial appointments as Deputy Collectors. The High
Court committed an error in treating the ad hoc
appointments of the promotees to be only procedurally
defective to give them the benefit of the ad hoc service
by applying the judgment in Direct Recruit Class II
Engineering Officers’ Association (supra). The High
Court further went wrong in holding that the promotees
were entitled for the benefit of ad hoc service in view of
proviso to sub-rule (4) of Rule 24 of 2005 Rules. No
doubt, according to the proviso to sub-rule (4) Rule 24 a
promotee is entitled to count ad hoc service provided he
continuously worked till he is regularly promoted in a
post within the promotee quota. No finding is recorded
by the High Court on this very important prerequisite
whether promotees appointed on ad hoc basis in 2004
continuously worked in a post within the promottee
quota. On the other hand, it is clear from the Office
Memorandum dated 21.10.2015 that only 2 posts were
[21]
available in the promotee quota during 2003-2004.
Those posts also were allotted to promotees who
worked in Uttar Pradesh throughout their career and
never joined in the State of Uttarakhand. Admittedly,
they are seniors to promotees in the instant case.
Therefore, the High Court was not right in giving the
benefit of ad hoc service to the promotees on the basis
that the proviso to Rule 24(4) of 2005 Rules comes into
play. In view of the above, we do not think it necessary
to adjudicate the dispute relating to the proviso to Rule
24 which exists in the English translation and does not
find place in the Hindi copy.
14. A close scrutiny of the Office Memorandum dated
21.10.2015 would show that the exercise done by the
State of Uttarakhand in the matter of identification of
vacancies within the direct recruit and promotee quota
from 2000-2001 to 2006-2007 is correct. The objection
of the promotees is that the Deputy Collectors who were
allotted to Uttarakhand never worked in the State of
Uttarakhand and they continued to work in the State of
[22]
Uttar Pradesh from which they retired. The grievance of
the promotees is that if such officers are included in the
seniority list, the promotees will suffer as they would be
placed below the direct recruits who were appointed in
the year 2005. The allotment process was delayed due
to some officers continuing in Uttar Pradesh on the
strength of interim orders in Writ Petitions filed by them
challenging the allotment orders. Some of them have
retired on attaining the age of superannuation while
working in Uttar Pradesh. The allotment process
ultimately was finalised on 02.09.2015. After the final
allocation, persons who did not join in Uttarakhand and
retired in Uttar Pradesh have to be treated as
employees of the successor State of Uttarakhand.
Moreover, the allotment was made w.e.f. 09.11.2000
which leaves no doubt that they cannot be ignored
while finalising the quota for promotees and deciding
the allotment of slots for the personnel in the order of
their seniority.
[23]
15. In view of our conclusion that the promotees are
not entitled to count their ad hoc service for the
purpose of computing their seniority. For the
aforementioned reasons, the Civil Appeal @ S.L.P. (Civil)
No.2779 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.6847-
6848 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.9885-
9886 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.9910-
9911 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.33762-
33763 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.33750-
33751 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.33759-
33760 of 2012 are allowed and the Civil Appeal @ S.L.P.
(Civil) No.18604 of 2019 is dismissed.
……………………………….J
[L. NAGESWARA RAO]
…….…………………………..J.
[DEEPAK GUPTA]
New Delhi,
February 14, 2020.
[24]
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