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Friday, August 23, 2013

Promotion by considering the period of service done on adhoc basis = No = whether the applicant has any legal right to be considered for the post of Executive Engineer (Mechanical). It is seen he was an ad-hoc appointee for various periods of time from 23.3.1999 till his regularization as Assistant Engineer on 29.4.2005. His orders on 29.4.2005 appointing him as an Assistant Engineer on regular basis also stipulated that he would be on probation for two years. The applicant at the time of such regularization on 29.4.2005 did not challenge the same nor did he make a representation at that time for treating his previous service on ad-hoc basis from 23.3.99 to 29.4.2005 as regular service. He accepted the order as per Annexure-A/1 together with the probation of two years period. Having done this he cannot now come and make a claim that his entire period from 23.3.99 onwards should be regularized so that he can avail of the recruitment rules for being promoted as Executive Engineer on the promotion quota. As per recruitment of Executive Engineer, the applicant is not eligible since 8 years of regular service is required.”= as per the extant rules for promotion to the post of Executive Engineer (Mechanical) 8 years regular service as Assistant Engineer is imperative. The Rules do not provide for any relaxation in this behalf. This is clear from the reading of the said rules which provide for appointment to the post of Executive Engineer (Mechanical). As per the Recruitment Rules, post of Executive Engineer (Mechanical) is a selection post. The mode of recruitment stated in the Rules is as under: “By promotion failing which by transfer on deputation (including short-term contract) and failing both by direct recruitment.” The Recruitment Rules also stipulate eligibility condition in all the three circumstances, namely, promotion, transfer on deputation as well as direct recruitment. In so far as filling up of this post by way of promotion is concerned, following requirements are stipulated for a candidate to be eligible in that category: “PROMOTION: Assistant Engineer (Mechanical) with 8 years regular service in the grade.”- there are three alternate modes of recruitment to the Post, namely, (1) by promotion, failing which (2) by transfer on deputation (including short term contract) and failing both (3) by direct recruitment. No doubt, if some departmental candidate is available and eligible to be considered, the promotion method is to be resorted to in the first instance. However, no departmental candidate was available. Concededly, the respondent had not completed 8 years regular service as Assistant Engineer. In such circumstances only out of sympathy the High Court could not have given the impugned direction. This judicial sympathy resulting into a right in favour of respondent to appoint him contrary to the recruitment rules framed under proviso to Article 309 of the Constitution of India which are statutory in nature is clearly misplaced and needs to be denounced. Such a direction is clearly unsustainable and is accordingly set aside. As a result, the appeal is allowed restoring the order of the Tribunal dismissing the O.A. filed by the respondent. No costs.

                   published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40684                                 
  [REPORTABLE]

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                          CIVIL APPEAL NO.7032/2013
              (arising out of S.L.P.(Civil) No. 20506 OF 2011)

Union of India & Ors.
            ….Appellants

                 Vs.

Shri G.R.Rama Krishna & Anr.
…..Respondents



                               J U D G M E N T



A.K.SIKRI,J.

1.    Leave granted.

2.     The  respondent  No.1  herein  (hereinafter  referred   to   as   the
respondent) was appointed as Engineering Assistant  (Mechanical) in  Andaman
Lakshdeep Harbour Works (ALHW) on ad-hoc basis with effect  from  17.4.1979.
Though this ad-hoc period was of one year, the respondent continued to  work
in the capacity even  thereafter  without  obtaining  the  approval  of  the
Department of Personnel and Training.   The    services  were  continued  as
ALHW was facing lots of  problems  due  to  shortage  of  staff  at  various
levels.  He was later on promoted as  Inspector  of  Works  on  ad-hoc  with
effect from 11.11.1984.  This post was later on merged with that  of  Junior
Engineer  and  thus  the  respondent  was  accorded  the  status  of  Junior
Engineer.

3.    Next promotion from Junior  Engineer  is  to  the  post  of  Assistant
Engineer.  Again on  ad-hoc basis, the respondent was promoted as  Assistant
Engineer with effect from 23.9.1999.  He  was  given  regular  promotion  as
Assistant Engineer (Mechanical) on 2.6.2005 and was put on probation  for  a
period  of  two  years  from  that  date.   The  respondent  submitted   his
representation dated 13.10.2008 for treating the ad-hoc period of  Assistant
Engineer from the 23.9.1999 to 24.8.2005 as regular  service  for  promotion
to  the  next  higher  post  i.e.  Executive  Engineer  (Mechanial).    This
representation was turned down by the authorities with the result  that  the
respondent was treated as regularly appointed Assistant Engineer  only  from
24.8.2005.

4.     On 10/16.1.2009, the   U.P.S.C.  advertised  the  post  of  Executive
Engineer (Mechanical) for filling up on direct recruitment basis  and  fixed
the date of interview as 27.2.2009.  This move for filling up  of  the  post
of Executive Engineer (Mechanical) adopting the mode of  direct  recruitment
was taken on the  premise  that  no  departmental  candidate  was  available
inasmuch as 8 years regular service as Assistant  Engineer  was  needed  for
promotion to the post of Executive Engineer, and  no  departmental  employee
fulfilled this condition.

5.    The respondent filed O.A. before the Central  Administrative  Tribunal
challenging the proposal of the UPSC to fill the post on direct  recruitment
basis contending that he was eligible to be considered for such a  promotion
as after counting the ad-hoc period he had completed  the  requisite  number
of years as Assistant Engineer.

6.     This  O.A.  was  dismissed  by  the  Tribunal  taking  note  of   the
recruitment rules as per which regular service of 8 years  is  mentioned  as
qualifying service to become eligible for the post  of  Executive  Engineer.
The relevant portion of the order of the Central Administrative Tribunal  in
this behalf reads as under:

                 “The point to be considered here is
  whether the  applicant
           has any legal right to be considered for the post  of  Executive
           Engineer (Mechanical).  It is seen he was  an  ad-hoc  appointee
           for  various  periods  of   time   from   23.3.1999   till   his
           regularization as Assistant Engineer on 29.4.2005.   His  orders
           on 29.4.2005 appointing him as an Assistant Engineer on  regular
           basis also stipulated that he would  be  on  probation  for  two
           years. The applicant at  the  time  of  such  regularization  on
           29.4.2005  did  not  challenge  the  same  nor  did  he  make  a
           representation at that time for treating his previous service on
           ad-hoc basis from 23.3.99 to 29.4.2005 as regular  service.   He
           accepted  the  order  as  per  Annexure-A/1  together  with  the
           probation of two years period. Having done this  he  cannot  now
           come and make a  claim  that  his  entire  period  from  23.3.99
           onwards should be regularized  so  that  he  can  avail  of  the
           recruitment rules for being promoted as  Executive  Engineer  on
           the promotion quota.  As per recruitment of Executive  Engineer,
           the applicant is not eligible since 8 years of  regular  service
           is required.”



The Tribunal thus opined that the respondent  had  not  made  any  case  for
quashing  the steps taken by the U.P.S.C. for filling up  the  post  of  the
Executive Engineer (Mechanical) through direct  recruitment  as  recruitment
rules.

7.    Against the judgment of the Tribunal, the respondent  filed  the  Writ
Petition in the High Court of  Calcutta  (District  :  Andaman).   The  High
Court has allowed the Writ Petition and modified the order of  the  Tribunal
by directing that the respondent be appointed as  Executive  Engineer  after
observing all other formalities.  This direction is given by the High  Court
as a special case, without setting it as precedence,  as is clear  from  the
operative portion of this order:

            “In this case the petitioner by way of a  stop  gap  arrangement
           worked in an ad-hoc basis which in  other  words  amounted  to  a
           permanent arrangement since he was allowed to perform for a  long
           time since the post is still vacant.  There is no  reason  as  to
           why the petitioner who had put in such a length of service should
           be denied an opportunity of being promoted in the absence of  any
           adverse situation against him.

            Keeping in view peculiar facts and circumstances of the  present
           case, without setting it as a precedence and as  a  very  special
           case more so as the Petitioner has been working since  1990  till
           date in the capacity of Assistant Engineer which is a feeder post
           of the Executive Engineer (Mechanical), we would direct  that  he
           be  appointed  as  Executive   Engineer   (Mechanical)   in   the
           establishment of the Respondent No.1 after  observing  all  other
           formalities.”







8.    We are unable to appreciate the aforesaid approach of the High  Court.
 It is not disputed before us that as per the extant rules for promotion  to
the post of Executive Engineer  (Mechanical)  8  years  regular  service  as
Assistant Engineer  is  imperative.   
The  Rules  do  not  provide  for  any
relaxation in this behalf.  This is clear  from  the  reading  of  the  said
rules which provide for  appointment  to  the  post  of  Executive  Engineer
(Mechanical).  As per the Recruitment  Rules,  post  of  Executive  Engineer
(Mechanical) is a selection post.  The mode of  recruitment  stated  in  the
Rules is as under:

            “By promotion failing which by transfer on deputation (including
          short-term contract) and failing both by direct recruitment.”




      The Recruitment Rules also stipulate eligibility condition in all  the
 three circumstances, namely, promotion, transfer on deputation as  well  as
 direct recruitment.  In so far as  filling  up  of  this  post  by  way  of
 promotion  is  concerned,  following  requirements  are  stipulated  for  a
 candidate to be eligible in that category:

      “PROMOTION:
      Assistant Engineer (Mechanical) with 8 years regular  service  in  the
 grade.”




9.     From  the  aforesaid,  it  becomes  apparent  that
there  are  three
alternate modes of recruitment  to  the  Post,  namely,  
(1)  by  promotion, failing which 
(2) by transfer on deputation (including short term  contract) and failing both 
(3) by direct recruitment.  
No doubt, if some  departmental
candidate is available and eligible to be considered, the  promotion  method
is to be resorted to  in  the  first  instance.   
However,  no  departmental candidate was available.  
Concededly, the respondent  had  not  completed  8 years regular service   as Assistant Engineer.  In such  circumstances  only
out of sympathy the High Court could not have given the impugned  direction.
  
This judicial sympathy resulting into a right in favour of  respondent  to
appoint him contrary to  the  recruitment  rules  framed  under  proviso  to
Article 309 of the Constitution of India which are statutory  in  nature  is
clearly misplaced and needs to be denounced.    
Such a direction is  clearly
unsustainable and is accordingly set aside.  
As  a  result,  the  appeal  is
allowed restoring the order of the Tribunal dismissing  the  O.A.  filed  by
the respondent.  No costs.



                                         ……………………………….J.
                                           (K.S.Radhakrishnan)



                                        …………………………………J.
                                           (A.K. Sikri)
New Delhi,
Dated: 23rd   August, 2013

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