2019 Supreme(SC) 1360

SUPREME COURT OF INDIA
S.A. BOBDE, CJI., B.R. GAVAI, SURYA KANT, JJ
Siraj Ahmad – Appellant
Versus
State Of Uttar Pradesh & Anr. – Respondents
Civil Appeal No.9412 of 2019 (Arising out of SLP(C) No. 30061 of 2017)
Decided on : 13-12-2019

IMPORTANT POINTS
(1) Appointment – There is clear distinction between irregular appointment and illegal appointment.
(2) If appointment is made after considering claims of all eligible candidates and appointee continues in post uninterruptedly till regularisation of his service in accordance with rules made for regular substantive appointments, there is no reason to exclude officiating service for purpose of seniority.

Headnote:

(A) Service Law – Appointment – Distinction between irregular appointment and illegal appointment – In the event appointment is made in total disregard to constitutional scheme and recruitment rules framed by employer, where employer is a “State” within meaning of Article 12 of Constitution of India, recruitment will be illegal one – However, where although, substantial compliance with constitutional scheme, as also rules have been made, appointment would become irregular in as much as some provisions of some rules have been adhered to – Where appointment are not made or continued against sanctioned posts or where persons appointed do not possess prescribed minimum qualifications, appointment will be considered to be illegal – However, when person employed possessed prescribed qualifications and is working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. (Paras 12 and 14)

(B) Service Law – Promotion – Appellant had applied in pursuance to advertisement issued by State for the post in Centralised Services under provisions of rules – Appellant had participated in selection process along with other competitors – Appellant was possessing requisite qualification and was selected after competing with others and was appointed against sanctioned posts for a period of one year – Appellant thereafter has continuously rendered his services, till date of regularisation of his services and even thereafter till date – Appointment of appellant at the most can be termed as irregular and not illegal – If an appointment is made by way of stopgap arrangement without considering claims of all eligible persons and without following rules of appointment, experience of such appointment cannot be equated with experience of a regular appointee because of qualitative difference in appointment – However, if appointment is made after considering claims of all eligible candidates and appointee continues in post uninterruptedly till regularisation of his service in accordance with rules made for regular substantive appointments, there is no reason to exclude officiating service for purpose of seniority – Initial appointment is not made by following procedure laid down by rules, but appointee continues in post uninterruptedly till regularisation of his service in accordance with rules, period of officiating service will be counted – Petitioner is entitled to promotion to post of Assistant Engineer (Civil) from the date on which his junior possessing Bachelor of Engineering /A.M.I.E. has been promoted with all consequential benefit. (Paras 15, 16, 18, 20, 29 and 30)

Facts of the case:

Present appeal challenges Judgment and Order dated 11.09.2017, passed by the division bench of Allahabad High Court in W.P.(Service Bench) No. 1020 of 2015, thereby dismissing the Writ Petition filed by appellant. Since the appellant was not promoted, he made various representations to the State seeking promotion. The appellant had claimed the promotion from 18.01.1995, i.e. date on which the juniors to the appellant were promoted. The appellant’s claim for promotion came to be rejected on 16.04.2015. Hence appellant approached division bench of the High Court by way of Writ Petition. The petition came to be rejected. Hence, present appeal.

Findings of Court:

In view of the office memorandum dated 11.03.1994, the appellant was entitled to be promoted immediately after the issuance of the said office memorandum as he possessed the requisite degree when the said office memorandum was issued. In any case appellant is entitled to be promoted with effect from 18.01.1995 i.e. the date on which the juniors to him were promoted.

Result : Appeal allowed.