Vinod Giri Goswami . vs The State Of Uttarakhand

by this Court on 11.03.2015, the Government of

Uttarakhand determined the year-wise vacancies for direct

recruits and promotees from 2000 onwards. On the basis of

the Office Memorandum dated 21.10.2015, the final

Seniority List of Deputy Collectors was prepared by the

State Government on 11.01.2017. Thereafter, during the

course of the hearing of the Appeals on 25.04.2018, an

objection was taken on behalf of the Respondents/

promotees to the Office Memorandum dated 21.10.2015

that the quota earmarked for promotees was shown to have

been occupied by officers who continued to work in the

[6] State of Uttar Pradesh till their retirement. The promotees

contended that the personnel who did not join in the State

of Uttarakhand in spite of their allocation cannot be shown

to have occupied the quota for promotees to the detriment

of the Respondents in the above Appeals. As the dispute

relating to the correctness of the Office Memorandum dated

21.10.2015 was raised for the first time by both sides, this

Court permitted the promotees to approach the High Court

for resolution of their grievances.

4. Writ Petition No.299 of 2018 was filed by Bhagwat

Kishore Mishra and 11 others questioning the Office

Memorandum dated 21.10.2015 relating to the

determination of year-wise vacancies of Deputy Collectors

w.e.f. 2000-2001 to 2006-2007. By a judgment dated

22.05.2019, the High Court disposed of the Writ Petition

holding that the year-wise vacancy position of Deputy

Collectors (Entry Level) of the promotees and the direct

recruit quota for the period from 2000-2001 to 2006-2007

has been correctly reflected in the Office Memorandum

dated 21.10.2015. According to the High Court, final

allotment orders under the Uttar Pradesh Reorganization

Act, 2000 (hereinafter referred to as ‘the Act’) started from

[7] 23.04.2004 and ended on 02.10.2015. As per Section 73(2)

of the said Act, the officers in the cadre of Deputy Collectors

(Entry Level) have been deemed to be allotted to State of

Uttarakhand w.e.f. 09.11.2000. Thereafter, the High Court

was satisfied with the exercise conducted by the

Government in computation of the year-wise vacancy

position for direct recruits and allottees from 2000-2001 to

2006-2007. In such view, the High Court upheld the Office

Memorandum dated 21.10.2015. Civil Appeal @ S.L.P.(Civil)

No.18604 of 2019 has been filed by the unsuccessful

promotee Deputy Collectors challenging the judgment of the

High Court which upheld the Office Memorandum dated

21.10.2015.

5. It was contended on behalf of the promotees that the

judgment of the High Court dated 07.09.2011 directing the

benefit of the ad hoc service to be given to the promotees

does not call for interference. They relied upon the proviso

to sub-rule (4) of Rule 24 of the 2005 Rules to submit that

they have a right to claim that the period of continuous

officiation prior to the dates of their regular appointment

should be counted for seniority. It was argued that the

initial promotion on ad hoc basis in the year 2004 was after

[8] a process of selection. They were continuously discharging

their duties as Deputy Collectors till they were selected by

the Public Service Commission and regularly appointed in

the year 2007. If their service from 2004 is treated as

regular, the direct recruits who were appointed in 2005

cannot be shown as seniors to them in the seniority list of

Deputy Collectors. The grievance raised by them regarding

the Office Memorandum that was issued by the Government

of Uttarakhand on 21.10.2015 is that the Deputy Collectors

who were allotted to the State of Uttarakhand but continued

to work in the State of Uttar Pradesh were shown to have

occupied the post of Deputy Collectors in the promotee

quota. According to them, some of the Deputy Collectors

who continued to work in the State of Uttar Pradesh have

retired on attaining the age of superannuation. For all

practical purposes including the payment of pension, they

cannot be treated to have held a civil post in the State of

Uttarakhand. Inclusion of their names in the seniority list of

Deputy Collectors has been done only to deprive the

promotees the legitimate seniority to which they were

entitled. The implementation of the judgments dated

30.11.2011 in Writ Petition No.58 of 2011 and 07.09.2011 in

[9] Writ Petition Nos.187 of 2010, 188 of 2010, 220 of 2010 and

the deletion of those Deputy Collectors who never worked in

the State of Uttarakhand from the promotee quota would

result in the promotees being accorded their rightful place

in the seniority list.

6. On the other hand, the direct recruits submitted that

the promotee Deputy Collectors are not entitled to claim

benefit of their ad hoc service as their initial appointments

in 2004 were contrary to the Rules. They alleged that some

of the promotees were not confirmed in the post of Tehsildar

and in any event, the recruitment process as prescribed by

the relevant rules was not followed while making the stop

gap arrangement in the year 2004. It was the case of the

direct recruits that the substantive appointment of the

promotees was only in 2007 and in no event could they

claim the benefit of services rendered by them in

accordance with the Uttaranchal Government Servant

Seniority Rules, 2002 (hereinafter referred to as ‘the 2002

Rules’). The direct recruits justified the judgment of the

High Court dated 22.05.2019 by arguing that the

adjustment of the direct recruits and promotees was done

strictly in accordance with the Act and the applicable Rules.

[10]

7. On behalf of the State of Uttarakhand, it was

contended that no final order with respect to allocation of

Deputy Collectors could be passed in view of the interim

orders passed by the Uttarakhand High Court and this Court.

Though the allotment of Deputy Collectors commenced in

2000, the exercise ultimately was concluded only on

02.09.2015. All allotments made of the Deputy Collectors

who were shown to have occupied the promotee quota were

made w.e.f. 09.11.2000. Though it is a fact that some

officers who were allotted to the State of Uttarakhand

continued to work in the State of Uttar Pradesh and retired

there, for all practical purposes they would have to be

treated as employees of the State of Uttarakhand after the

final allotment has been made. It was submitted by the

learned counsel for the State of Uttarakhand that due care

and caution was taken in ensuring that the allotment of

promotees and direct recruits was done year-wise by taking

into account the vacancies that were available within the

quota earmarked for direct recruits and the promotees.

8. Before we proceed further, it is relevant to refer to the

statutory regime. The reorganization of the State of Uttar

[11] Pradesh was undertaken in the year 2000 pursuant to which

the Uttaranchal State was formed. The Uttar Pradesh

Reorganization Act, 2000 (referred to as ‘the Act’) came into

effect from 09.11.2000. Section 73 of the Act of 2000 deals

with the allotment of public servants who were serving in

the State of Uttar Pradesh before the Act of 2000 came into

force. According to sub-Section 2 of Section 73, the Central

Government is empowered to determine final allotment of

personnel to the respective successor State and is entitled

to specify the date with effect from which such allotment

would take effect or deemed to have taken effect.

9. Recruitments to the post of Deputy Collector were

originally governed by the U.P. Civil Servant (Executive

Branch), Rules, 1982. A Deputy Collector is appointed by

direct recruitment through a competitive examination

conducted by the Public Service Commission and by

promotion from amongst the permanent Tehsildars. Rule 16

provides the procedure for recruitment under the 1982

Rules in respect of promotions according to which the

criteria for promotion would be merit which would be

determined in accordance with the Uttar Pradesh Promotion

by Selection in consultation with Public Service Commission

[12] (Procedure) Rules, 1970. Part VI of the 1982 Rules dealt

with the Appointment, Probation, Confirmation and Seniority.

Rule 23 thereof pertains to Seniority which shall be

determined from the date of substantive appointment. The

proviso to Rule 23 postulates that persons appointed in

excess of their quota shall be brought down in seniority.

10. The Uttarakhand Civil Services (Executive Branch)

Rules, 2005 were notified on 17.01.2006. ‘Substantive

appointment’ is defined in Rule 3(i) which is as follows:

“(i) “Substantive appointment” means an appointment not being an ad hoc appointment, on a post in the cadre of the service and made after selection in accordance with the rules and, if there are no rules, in accordance with the procedure prescribed for the time being by executive instruction issued by the Government.”

Rule 24(4) which is in pari materia with Rule 20(2) of

the 1982 Rules empowers the appointing authority to make

appointments on temporary or ad hoc basis according to the

list prepared under sub-Rule 1. Sub-Rule 1 of Rule 24

provides that appointment by promotion shall be made on

the basis of the list prepared under Rule 16. The list

prepared under Rule 16 is on the basis of the merit

[13] determined in accordance with the Uttar Pradesh Promotion

by Selection in consultation with Public Service Commission

(Procedure) Rules, 1970. In case no candidate is available

according to the list prepared under Rule 24(1),

appointments can be made on an ad hoc basis from

amongst the qualified candidates. Such appointments can

be made only for a period of one year. A person who is

promoted on a temporary basis, and subsequently approved

by the Commission is conferred a benefit under the proviso

to sub-rule (4) of Rule 24 to claim the entire continuous

service rendered by him on a post within the promotee

quota.

11. It is also relevant to refer to the Uttaranchal

Government Servant Seniority Rules, 2002. ‘Substantive

appointment’ is defined in Rule 4(h) as :

“An appointment not being an ad hoc appointment on a post in the cadre of the service made after selection in accordance with the service rules relating to that service. Seniority shall be determined from the date of the order of substantive appointment when appointments are made by them by promotion or by direct recruitment.”

[14]

12. Essentially, two points require to be determined in

these Appeals. The first relates to the right of the

promotees to count the period of their ad hoc service for the

purpose of seniority. The second pertains to the correctness

of the Office Memorandum dated 21.10.2015. In Direct

Recruit Class II Engineering Officers’ Association

(supra), this Court held that the seniority of a person

has to be counted from the date of his initial

appointment if he was appointed in a post in

accordance with the Rules. The corollary is that where

the initial appointment is only ad hoc and not according

to Rules and made as a stop gap arrangement, the

officiation in such post cannot be taken into account for

determining seniority. It was further held that the

period of officiation can be counted if the initial

appointment is not made by following the procedure laid

down by the Rules but the appointees continued in the

post uninterruptedly till the regularisation of his service

in accordance with the Rules. This Court settled a

controversy relating to the application of the principles

[15] laid down in Direct Recruit Class II Engineering

Officers’ Association (supra) by a judgment in State

of West Bengal & Ors. v. Aghore Nath Dey & Ors.2

It was held as follows:

“22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ‘according to rules’. The corollary set out in conclusion (A), then is, that ‘where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority’. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ

2 (1993) 3 SCC 371

[16] petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority.

23. This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority.

We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.

24. The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A).

[17]

25. In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, ‘if the initial appointment is not made by following the procedure laid down by the ‘rules’ and the latter expression ‘till the regularisation of his service in accordance with the rules’. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the

[18] rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though

[19] they are squarely covered by the corollary in conclusion (A).”

13. In the instant case, the promotees were appointed

on ad hoc basis in the year 2004. There is no dispute

regarding their appointment on a regular basis in the

year 2007. According to the 1982 Rules and the 2005

Rules, appointment by promotion to the post of Deputy

Collector shall be as per the Promotion for Selection in

consultation with the Uttar Pradesh Promotion by

Selection in Consultation with Public Service

Commission (Procedure) Rules, 1970. Procedure for

promotion is laid down in the 1970 Rules which provide

that the eligibility list or lists have to be forwarded by

the State Government to the Commission which

conducts the selection. The appointment of the

promotees in the year 2004 is on ad hoc basis for a

period of one year without following the procedure

prescribed under the Uttaranchal Promotion by

Selection in consultation with Public Service Commission

(Procedure) Rules, 2003. As the promotions in 2004

[20] were made in clear violation of the Rules, the promotees

are not entitled to claim seniority from the dates of

initial appointments as Deputy Collectors. The High

Court committed an error in treating the ad hoc

appointments of the promotees to be only procedurally

defective to give them the benefit of the ad hoc service

by applying the judgment in Direct Recruit Class II

Engineering Officers’ Association (supra). The High

Court further went wrong in holding that the promotees

were entitled for the benefit of ad hoc service in view of

proviso to sub-rule (4) of Rule 24 of 2005 Rules. No

doubt, according to the proviso to sub-rule (4) Rule 24 a

promotee is entitled to count ad hoc service provided he

continuously worked till he is regularly promoted in a

post within the promotee quota. No finding is recorded

by the High Court on this very important prerequisite

whether promotees appointed on ad hoc basis in 2004

continuously worked in a post within the promottee

quota. On the other hand, it is clear from the Office

Memorandum dated 21.10.2015 that only 2 posts were

[21] available in the promotee quota during 2003-2004.

Those posts also were allotted to promotees who

worked in Uttar Pradesh throughout their career and

never joined in the State of Uttarakhand. Admittedly,

they are seniors to promotees in the instant case.

Therefore, the High Court was not right in giving the

benefit of ad hoc service to the promotees on the basis

that the proviso to Rule 24(4) of 2005 Rules comes into

play. In view of the above, we do not think it necessary

to adjudicate the dispute relating to the proviso to Rule

24 which exists in the English translation and does not

find place in the Hindi copy.

14. A close scrutiny of the Office Memorandum dated

21.10.2015 would show that the exercise done by the

State of Uttarakhand in the matter of identification of

vacancies within the direct recruit and promotee quota

from 2000-2001 to 2006-2007 is correct. The objection

of the promotees is that the Deputy Collectors who were

allotted to Uttarakhand never worked in the State of

Uttarakhand and they continued to work in the State of

[22] Uttar Pradesh from which they retired. The grievance of

the promotees is that if such officers are included in the

seniority list, the promotees will suffer as they would be

placed below the direct recruits who were appointed in

the year 2005. The allotment process was delayed due

to some officers continuing in Uttar Pradesh on the

strength of interim orders in Writ Petitions filed by them

challenging the allotment orders. Some of them have

retired on attaining the age of superannuation while

working in Uttar Pradesh. The allotment process

ultimately was finalised on 02.09.2015. After the final

allocation, persons who did not join in Uttarakhand and

retired in Uttar Pradesh have to be treated as

employees of the successor State of Uttarakhand.

Moreover, the allotment was made w.e.f. 09.11.2000

which leaves no doubt that they cannot be ignored

while finalising the quota for promotees and deciding

the allotment of slots for the personnel in the order of

their seniority.

[23]

15. In view of our conclusion that the promotees are

not entitled to count their ad hoc service for the

purpose of computing their seniority. For the

aforementioned reasons, the Civil Appeal @ S.L.P. (Civil)

No.2779 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.6847-

6848 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.9885-

9886 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.9910-

9911 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.33762-

33763 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.33750-

33751 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.33759-

33760 of 2012 are allowed and the Civil Appeal @ S.L.P.

(Civil) No.18604 of 2019 is dismissed.

……...............................J [L. NAGESWARA RAO]

…....……..........................J. [DEEPAK GUPTA]

New Delhi, February 14, 2020.

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