2006 Supreme(SC) 669

2006(6) Supreme 324
SUPREME COURT OF INDIA
(From Allahabad High Court)
S.B. Sinha and P.P. Naolekar, JJ.
R.S. Garg — Appellant
versus
State of U.P. & Ors. — Respondents
Civil Appeal No. 2903 of 2001
Decided on 27-7-2006
Counsel for the Parties :
For the Appellant : Raju Ramachandran, Sr. Advocate, S. Muralidhar and Amit Sharma, Advocates.
For the Respondents : Dinesh Dwivedi, Sr. Advocate, Prashant Kumar, Rohan Thawani, Pramod Swarup and Pradeep Misra, Advocates.

IMPORTANT POINT
It is trite law that for the purpose of reckoning seniority the ad hoc services would be taken into consideration only if prior to the appointment of the employee the authorities had complied with the statutory requirements of selecting the candidate.

Headnote:(i) SERVICE LAW — U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 — Section 8 — U.P. Labour Department (Factories and Boilers Division) Officers Service (Second Amendment) Rules, 1992 — Rules 5(iii) — Promotion — Appointment purely on ad hoc basis — Claim of reservation — Both appellant and 3rd respondent were appointed on an ad hoc basis to the post of Inspector, re-designated as Assistant Director of Factories, on or about 3-1-1972 and 17-1-1987 respectively — Appointment of appellant was in terms of 1992 Rules indicating selection through Public Service Commission — 3rd respondent was appointed purely on ad hoc basis till the selection of a regular candidate by the Public Service Commission and joining the post or till such time his services were required by the department — Appellant was confirmed in his post on 13-5-1978 — State of UP appointed 3rd respondent as Assistant Director Factories on regular basis by an order dated 15-11-1995 — 3rd respondent who belonged to Scheduled Caste filed representation for promotion to the post of Deputy Director of Factories — By an order of the Chief Minister pursuant to the purported conversion of one temporary post of Deputy Director of Factories (Chemical) into the post of Deputy Director of Factories (Admn.), 3rd respondent was promoted as Deputy Director of Factories (Admn.) — Writ petition filed by appellant challenging promotion of respondent — Whether 3rd respondent was illegally appointed as his services were regularized without referring the matter to the Public Service Commission — (Yes) — Appointment of 3rd respondent was void ab initio — This case points out how the illegalities are committed by the State causing deprivation of legitimate right of promotion of more meritorious and senior candidates.

       Held : The significant question, which now arises, is interpretation of Rule 5(iii) of the 1992 Rules in terms whereof for the purpose of promotion to the post of Deputy Director of Factories (Admn.) at least 5 years service as such from the first day of the year of recruitment is imperative.(Para 15)

       The aforesaid Rule 5(iii), thus, requires that on the date of selection, the candidate should have been substantively appointed as Assistant Director of Factories. It does not speak of experience in the service alone. The submission of Mr. Dinesh Dwivedi that the words "as such" referred to 5 years experience of working in the post and not 5 years experience in the substantive capacity cannot be accepted. An ad hoc employee who has been appointed in violation of the service rules did not hold any post. His experience in the post would mean experience gathered by him after his appointment in the substantive capacity. It is trite law that for the purpose of reckoning seniority the ad hoc services would be taken into consideration only if prior to the appointment of the employee the authorities had complied with the statutory requirements of selecting the candidate. At the relevant point of time, the rule provided for selection through Public Service Commission. The same having not been done, the appointment of the 3rd respondent was void ab initio. The question of regularization of his services, therefore, did not arise.(Para 16)

       We do not subscribe to the views of the High Court that even experience gained by the 3rd respondent while acting in ad hoc capacity would subserve the requirements of Rule 5(iii) of the 1992 Rules. The 3rd respondent, from 1984 to 1995, did not hold even any temporary or any officiating post. The rule of seniority would, thus, be the usual rule for promotion to the post of Deputy Director. The only criteria which appears to have been laid down by reason of 1992 amendment, is that in stead and place of the term permanent, the expression substantively appointed has been inserted. The 3rd respondent was substantively appointed only in 1995, prior whereto he was not holding any post. A person may not be a permanent employee for the purpose of gaining experience as the experience gained by him even during his temporary appointment may also be specific appointment. The expression "as such" clearly is referable to the expression "substantively appointed". It has nothing to do with the period of five years as was submitted by Mr. Dwivedi. The said Rule read in its entirety would mean that the candidate for promotion must be appointed substantively and when so appointed, he has to put in at least five years service as such. The expression "first day of the year of recruitment" is also of significance. By reason of ad hoc appointment dehors the rules, nobody is recruited in the service in the eyes of law. The expression "recruitment" would mean recruitment in accordance with the rules and not dehors the same. Absence of experience in substantive capacity is not a mere irregularity in this case. It would not be a mere irregularity, when a person not eligible therefor would be considered for promotion. It may be that for the purpose of direct appointment, experience and academic qualifications are treated to be at par, but when an eligibility criteria has been provided in the Rules for the purpose of promoting to a higher post, the same must strictly be complied with. Any deviation or departure therefrom would render the action void.(Para 17)

       The original appointment of 3rd respondent being illegal and not irregular, the case would not come within the exception carved out by the Constitution Bench. Furthermore, relaxation, if any, could have been accorded only in terms of Rule 28 of the Rules, Rule 28 would be attracted when thereby undue hardship in any particular case is caused. Such relaxation of Rules shall be permissible only in consultation with the Commission. It is not a case where an undue hardship suffered by the 3rd respondent could legitimately been raised being belonging to a particular class of employee. No such case, in law could have been made out. It, in fact, caused hardship to other employees belonging to the same category, who were senior to him; and thus, there was absolutely no reason why an exception should have been made in his case.(Para 20)

       The entire approach of the authorities of the State of U.P, thus, was only for achieving a private interest and not the public interest. It was in that sense, the action suffered from the vice of malice in law. It has not been disputed that there were other employees also who belonged to scheduled caste and were senior to the 3rd respondent. It has also not been disputed that no relaxation could be granted for promotion in terms of 1994 Act. Five years experience from the date of substantive requirement, thus, being an essential qualification, no relaxation could have been given in that regard to the 3rd respondent.(Paras 27, 28)

       (ii) SERVICE LAW — Promotions — Malice — Concept of malice in law and malice on fact — Distiction.

       The difference in concept of malice in law and malice on fact stand is well known. Any action resorted to for an unauthorized purpose would construe malice in law.(Para 21)

       Malice in its legal sense means malice such as may be assumed for a wrongful act intentionally but without just cause or excuse or for one of reasonable or probable cause. The term malice on fact would come within the purview of aforementioned definition. Even, however, in the absence of any malicious intention, the principle of malice in law can be invoked.(Para 22)