IMPORTANT POINT
Appointment to hold additional charge of superior post.

JUDGMENT

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