Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3153 OF 2012
(Arising out of SLP (c) No. 31935 of 2011)
NARSING PRASAD ..............Appellant
Versus
ANIL KUMAR JAIN & ORS. ............Respondents
J U D G M E N T
Dipak Misra, J
Leave granted.
2. The present appeal by way of special leave under Article 136 of
the Constitution of India is directed against the Judgment and Order
dated 21.10.2011 passed by the High Court of Judicature at Allahabad
Bench at Lucknow in Writ -
Petition No. 1793 (SB) of 2011 whereby the Division Bench of the High
Court quashed the Order dated 30.09.2011 of the Uttar Pradesh Avas
Evam Vikas Parishad (for short, 'the Parishad') whereby it had decided
that the present appellant, a Superintending Engineer, shall hold the
post of Chief Engineer on officiating basis till the regular selection
was made.
3. The factual expose', as has been unfurled, is that the post of
Chief Engineer fell vacant and the Parishad, after deliberation,
appointed the appellant to officiate as the Chief Engineer. The
respondent, Anil Kumar Jain, invoked the extraordinary jurisdiction of
the High Court challenging the said appointment on many a ground. It
was contended before the High Court that he was senior in the cadre of
the Superintending Engineer and, therefore, the charge should have
been given to him and not to a junior person; that he had an excellent
service record and there was no reason to supersede him and compel a
senior officer to work under a junior; that in the absence of merit
selection or regular selection being made, a senior most person was to
be given -
charge unless he had any other disqualification, and that when there
was no disqualification as far as he was concerned, it was obligatory
on the part of the Parishad to appoint him to function on officiating
basis on higher post. In oppugnation to the stand put forth by the
first respondent, the appellant as well as the Parishad urged that
while appointing the appellant herein by the Uttar Pradesh Avas Evam
Vikas Prishad (Appointment and Conditions of Service of Chief
Engineer) Regulations, 1990 (for short, "the Regulations"), especially
Regulations 8 and 11 were kept in view; that the respondent in the
Writ Petition was found more suitable to function on the higher post
on officiating basis; that in the Parishad, most of the work is of
civil nature and as the Writ Petitioner belongs to electrical cadre
and not to the civil cadre the present appellant who has excellent
track record in the civil cadre was selected to hold the post on
officiating basis; and that even for a stop-gap arrangement, the merit
for such a higher post is to be considered and that having been done,
the action of the Parishad could not be flawed.
4. The High Court took note of the rival submissions and opined
that at no point of time, the criteria of merit had been considered
before passing the Order; that in the absence of merit selection, a
senior most person is entitled to hold the charge unless there is any
legal impediment; that if the relevant regulations are properly
understood, the Writ Petitioner would be eligible to be considered for
the post of the Chief Engineer as no distinction can be made between
the electrical and civil cadre; and that the Writ Petitioner was not
ousted from the zone of consideration as has been admitted by the
Parishad. Being of this view, the High Court axed the Order passed by
the Parishad and directed that in case any officiating arrangement is
to be made, the Writ Petitioner's case shall be first considered and
he shall be given the charge unless there is any legal impediment till
the regular selection is made. The High Court further directed that
the selection shall be made within a maximum period of two months.
5. We have heard the learned counsel for the parties and perused
the record.
-
6. The central issue that arises for consideration is whether the
High Court is justified in expressing the view that the first
respondent was entitled to hold the post of Chief Engineer till
regular selection was made on the ground that he was the senior most
in the feeding cadre. Mr. Rohtagi, learned senior counsel, contended
that regard being had to the sensitive nature of the post, the
selection procedure was undertaken and, thereafter, the petitioner was
found suitable to hold the post. He has commended us to Regulation 11
of the Regulations to highlight that even for officiating purpose the
selection procedure is to be adopted. He has invited our attention to
the findings of the competent authority dated 30.09.2009 to
substantiate the stand that there has been a selection. Per contra,
Mr. Garg, learned counsel for the respondent, would contend that
Regulation 11 would not be attracted as additional charge given for
higher post was given to the respondent. That apart, the learned
counsel would urge that the factum of any kind of procedure being
taken recourse to by the selection committee was not brought to the
notice of the High Court and in any event, the findings of the
competent -
authority on which reliance has been placed do not really reflect that
the appropriate committee has taken the decision.
7. On a perusal of the Order passed by the High Court, it is not
clear that the finding of the selection committee was brought to the
notice of the High Court. For the first time, a document contained in
Annexure P-6 showing the order of the respondent No. 2 has been
brought before this Court. The respondent No. 2 is the Chairman of
the Uttar Pradesh Avas Evam Vikas Parishad. Regulation 8 of the
Regulations lays down the procedure for selection for promotion.
Regulation 11 stipulates for preparation of list by the selection
committee. The selection committee is required to be constituted by
the Board as per Regulation 7. On a perusal of Annexure A-6, it
appears that the decision is taken by the Chairman but not by the
Board. The High Court had directed that if any officiating
appointment is to be made, the case of the first respondent shall be
first considered and he shall be given the charge unless there is any
legal impediment. There is further -
direction to hold a regular selection within a maximum period of 2
months.
8. This Court had passed an order of status quo relating to
promotional posts in certain civil appeals and the said order is still
in force. Thus, a regular promotion cannot take place and, therefore,
the direction of the High Court in that regard is untenable.
However, as in the interest of the administration, someone has to
remain in charge, the employer, i.e., the Parishad can choose someone
to hold the officiating charge. Regard being had to the sensitive
nature of the post and the duties to be performed by the incumbent, we
think it appropriate to direct that the selection committee be
constituted by the Board within a period of four weeks which shall
consider the suitability of all the eligible candidates for the
purpose of holding the additional charge of the post of the Chief
Engineer. It is hereby made clear that the decision in favour of any
candidate to hold the additional charge would not enure to his benefit
and no claim can be put forth on the said base at the time of
consideration for regular promotion.
Be it noted, before the High Court passed the order, the present
appellant was holding the charge. This Court, on 24.11.2011, while
issuing notice, had directed status quo as of that day to be
maintained by the parties.
9. Keeping in view the totality of circumstances, it is directed
that till the Board takes a decision after getting the report of the
selection committee, the interim order passed in this case shall
remain in force.
10. In the result, the appeal is allowed to the extent indicated
hereinabove and the order of the High Court is set aside leaving the
parties to bear their respective costs.
.....................................J.
[Dalveer Bhandari]
.....................................J.
[Dipak Misra]
New Delhi;
March 27, 2012.
