KUMAR SINGH & ANR. versus THE STATE OF UTTAR PRADESH & ORS. on 9 August 2018

[2018] 9 S.C.R. 503

AJAY KUMAR SINGH & ANR.

v.

THE STATE OF UTTAR PRADESH & ORS.

(Civil Appeal No. 10829 of 2014)

AUGUST 09, 2018

[KURIAN JOSEPH AND SANJAY KISHAN KAUL, JJ.]

Service Law:

Seniority – Inter-se seniority between promotees and directrecruits – Promotees placed higher than direct recruits in senioritylist for the post of ‘Assistant Engineer’ – Direct recruits challengedthe seniority list contending that the appointment of promotees wereconstitutionally invalid as the same were without consultation withUttar Pradesh Public Service Commission (UPPSC) as envisagedin Art.320(3) of the Constitution – Held: The promotees as well asdirect recruits were initially appointed on ad hoc basis as a stop-gap arrangement – Appointment of direct recruits, thus was notthrough a regular process of UPPSC – They were later regularisedin terms of Office Memorandum dated 20.11.2001 – The High Courtwas not justified in relying on 4[th] amendment to the CentralisedServices Rules, 1985 because therein post of ‘Assistant Engineer’was not mentioned as the post for which consultation with UPPSCwas exempted – Such consultation was mandatory – However, thisis irregularity and not illegality, and such irregularity can be curedthrough prospective consultation – The relevant date for inter-seseniority for the direct recruits would be their date of regularisationand for the promotees would be date of their continuous officiation – The dates of officiation of promotees are prior to the appointmentof the direct recruits – State is directed to move UPPSC forconsultation – Constitution of India – Art. 320(3) – Uttar PradeshUrban Planning and Development Act, 1973 [as amended by UttarPradesh Urban Planning and Development (Amendment andValidation) Act, 1985] – s. 5A – Uttar Pradesh DevelopmentAuthorities Centralised Services Rules, 1985 – rr. 8, 21 and 28,Schedule III – Uttar Pradesh Public Service Commission (Limitationof Function) Regulations, 1954.

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ADisposing of the appeals, the Court

HELD: 1. The dispute is a result of ad hocism, which tookplace at the inception when the amendment was made to the UttarPradsesh Urban Planning and Development Act, 1973, with a viewto provide better development by the authorities in the State ofBU.P. The regular process was not undertaken and a stop gaparrangement was made both in terms of promotees and directappointees. This stop gap arrangement, however, acquired amore permanent feature by continuation over a long period oftime, without the regular process being followed. This was inCboth the channels. The appointment of the appellants themselveswas not through a regular process of UPPSC, but was madethrough a selection done by a selection committee appointed videOffice Memorandum dated 25.8.1987. The appointment was ona fully temporary and ad hoc basis and was to continue for amaximum period of one year or up to the period until regularDcandidates were selected through the Public Service Commission.The appellants were regularised in terms of the OfficeMemorandum dated 20.11.2001. Thus, it is not as if the appellantsare persons who have been appointed through a normal process.It is rather ironic that the appellants who themselves were on anEad hoc basis originally and not through a regular process, seekto challenge the seniority list on the basis of this technicalobjection. Their appointment itself has never been throughUPPSC, as envisaged under the Rules.[Paras 18, 19 and 25][514-E-G; 515-B-C; 516-F-G]

FSushil Chandra Srivastava v. State of U.P. and Ors1996 All LJ 1171 ; State of U.P. v. Manbodhan Lal[1958] SCR 533 – referred to.

2. Private respondents 5-10 are promotees. TheDepartmental Promotion Committee for promotion of the JuniorGEngineers to the post of the ‘Assistant Engineer’ was held on27.5.1995. At the relevant time, the 13th Amendment to UttarPradesh Public Service Commission (Limitation of Function)Regulations, 1954, had done away with the requirement of theconsultative process with the UPPSC altogether, and it was onlysubsequently, on 19.10.1995, that such amendments were struckH

down by Allahabad High Court. Interpretation of Article 320(3)of the Constitution in *Manbodhan Lal case, also makes it clearthat while the intention of the makers of the Constitution maynot be to provide for consultation with the Commission asmandatory, in view of the proviso, it would not amount to sayingthat it is open to the Executive Government to completely ignorethe existence of the Commission, as was sought to be done inthe present case by doing away with such consultation across theboard. High Court was not justified in relying on 4th Amendmentto the U.P. Development Authorities Centralised Services Rules,1985 dated 8.9.1993, but runs contrary to the amendment itself.The amendment provides such of the posts for which consultationwas not required. Undisputedly, the post of the ‘AssistantEngineer’ is not mentioned as one of such posts. Such consultationwas mandatory but was not done. However, this is an irregularityand not an illegality, and such irregularity can always be curedthrough prospective consultation. [Paras 20-22] [515-C-H;516-A-B]

*State of U.P. v. Manbodhan Lal [1958] SCR 533 –

followed.

3. Rule 28 of the Uttar Pradesh Development AuthoritiesCentralised Services Rules, 1985 no doubt, stipulates that interse seniority of the persons appointed by direct recruitment wouldbe determined from the date of joining the service. The ad hocappointment of the appellants was regularised from a subsequentdate of 20.11.2001 and, thus, they can only claim appointment forinter se seniority from that date. The rule qua the promotees,stipulates that the date of continuous officiation in the case ofpromotees would be the relevant date. The private respondentshave been officiating from various dates and those would be therelevant dates, and those dates are prior to the appointment ofthe appellants. The only irregularity is the non-consultation withthe UPPSC. [Para 24] [516-D-F]

4. In order to cure the defect which is apparent insofar asthe confirmation of the private respondents/promotees isconcerned, it would be appropriate to direct that the StateGovernment should move the UPPSC for consultation within a AB

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Amaximum period of two months from the date of present judgment,and dependent on the result of the consultative process, actionbe taken, and the seniority list should govern accordingly. Thiswould imply that the promotees would continue to maintain theirposition in the seniority list so long as there is a favourable opinionof the UPPSC, and only in case of such candidates that the UPPSCBadvises otherwise, i.e., negatively, would that person not beeligible to form a part of the same seniority. [Para 26] [516-G-H;517-A-B]

Direct Recruit Class II Engineering Officers’CAssociation v. State of Maharashtra & Ors. (1990) 2SCC 715 : [1990] 2 SCR 900 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10829of 2014.E

From the Judgment and Order dated 26.04.2010 of the High Courtof Judicature at Allahabad, Bench at Lucknow in W.P. (C)No.1388/2007(S/B)

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Civil Appeal No.10828 of 2014.

P. N. Mishra, Amarendra Sharan, Sr. Advs., Siddharth Dave,Manish Singh, Shashank Singh, Kabir Dixit, Adil Sharfuddin, Mohd.Waquas, Param K. Mishra, Shekhar Kumar, Rajeev Dubey, AshutoshGKumar Sharma, Kamlendra Mishra, Vishnu B. Saharya, Viresh B.Saharya (for M/s. Saharya & Co.), Pradeep Kumar, S. Udaya KumarSagar, Ms. Bina Madhavan, Ms. Elizabeth Antony (for M/s. LawyerS Knit & Co), Chira Ranjan Addy, Gunnam Venkateswara Rao, Advs.for the appearing parties.

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The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J. 1. This is one more of theperennial disputes between the promotees and the direct appointees –this time to the post of the ‘Assistant Engineer (Electrical & Mechanical)’in the U.P. Development Authorities Centralised Services. Both the setof appointments were initially made on an ad hoc basis but weresubsequently confirmed. The core dispute relates to the requirement ofconsultation with the Uttar Pradesh Public Service Commission (for short‘UPPSC’) provided in Article 320(3) of the Constitution of India at thetime when these ad hoc appointments were confirmed. It is the say ofthe direct appointees that no such consultation took place at the timewhen the ad hoc promotees-appointees were confirmed, in breach of amandatory requirement and thus, their appointment is illegal. The sequiturto this is the prayer made by the direct appointees that all such promotees,even if the service were to be regularised now through a consultativeprocess with the UPPSC, would be liable to be placed below the directappointees.

2. The factual matrix of the dispute arose much earlier but theculmination is stated to be the seniority list dated 15.5.2007 for the postof the ‘Assistant Engineer’, in terms whereof the promotees have beenplaced above the direct appointees. It is in the year 1985 that the U.P.Development Authorities Centralised Services was created by virtue ofthe U.P. Urban Planning & Development (Amendment & Validation)Act, 1985. The Amendment Act to amend the parent Act, i.e., U.P.Urban Planning & Development Act, 1973 (hereinafter referred to asthe ‘said Act’) was enacted with a view to provide better developmentby the local authorities in the State of Uttar Pradesh, and in the process,a centralised service was created to man these authorities. To facilitatethis, Section 5A was inserted by the Amendment Act to create thecentralised services of all development authorities. The U.P.Development Authorities Centralised Services Rules, 1985 (hereinafterreferred to as the ‘said Rules’) were enacted under the said Section 5Aand were notified and came into effect on 25.6.1985. Rule 8 of the saidRules provides for the source of recruitment to various posts mentionedin Schedules I to VI. Promotion to the post of ‘Assistant Engineer’ isenlisted in Schedule III. The relevant portion of Schedule III reads asunder:

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508SUPREME COURT REPORTS[2018] 9 S.C.R.

AName of the Name of the Post from which Minimum Centralised Post Promotion to be Qualifying Service Made Service Required for Promotion Engineering Sahayak Avar Abhiyanta Must possess the BAbhiyanta (Rs. (Rs. 485-860) requisite 850-1720) qualifications of a qualified Junior Engineer and must have completed a Cminimum service of 10 years as qualified Junior Engineer on first July of recruitment year. D Sahayak Abhiyanta :: Assistant Engineer Avar Abhiyant :: Junior Engineer

It may be noted that Schedule III provides for the post to be filledin by the Public Service Commission in the ratio of 50% through promotionEand 50% through direct recruitment.

3. An advertisement was published on 11.7.1987 for directrecruitment to 9 posts of ‘Assistant Engineer (Electrical & Mechanical)’with educational qualifications as a degree in Electrical or MechanicalEngineering. The appointment was so made as per Office MemorandumFdated 25.8.1987 on the basis of a selection done on 13.8.1987 by aSelection Committee. The appointment is on “fully temporary andad hoc basis.” Clause 3 of the Office Memorandum states that suchappointments are fully temporary for a period of maximum one year orup to the period until the regular candidates are selected by the PublicService Commission and are made available, whichever is earlier. ItGwas also stated that the services could be terminated at any time withoutany prior information. We may note here that the two appellants in CivilAppeal No.10829/2014 and the one appellant in Civil AppealNo.10828/2014 are amongst the persons so appointed on an ad hocbasis, as direct recruits.

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Pr21. shalseniof u“UttselePub(Proame

for ss the ns of Junior and have a ervice rs as Junior n first of year.ngineerngineer

4. The said Rules were amended from time to time. As per the3[rd] Amendment of the Rules by Notification dated 7.2.1992 a new Rule20-A was inserted with the object of regularising ad hoc appointment ofdirect recruits, who were so recruited on or before 1.10.1986.However, this amendment did not come to the aid of the appellants asthe cut-off date was 1.10.1986, while the appellants were recruited on25.8.1987. It was only the 7[th] amendment to the 1985 Rules, publishedon 2.8.2001, which amended the cut-off date, under Rule 20-A, from1.10.1986 to 29.6.1991 for regularisation of the ad hoc direct recruits,which facilitated the regularisation of the appellants, who were recruitedbefore 29.6.1991. The appellants were, thus, subsequently regularisedin terms of the Office Memorandum dated 20.11.2001.

5. In the meantime, parallelly, another story was unfolding inrespect of the promotees. The seed of the dispute was laid by the4[th] amendment to the Rules notified on 8.9.1993 by which Rule 21, whichlaid down the procedure for recruitment by promotion, was amended tothe extent that it did away with consultation with the UPPSC for certainposts. The relevant amendment showing the existing and amended Rulesis extracted hereinunder:

COLUMN – ICOLUMN – IIExisting ruleRule as hereby substituted Procedure for recruitment by Procedure for recruitment by promotion promotion 21. Recruitment by promotion 21. Recruitment by promotion shall be made on the basis of shall be made by the State seniority subject to the rejection Government on the basis of of unfit in accordance with the seniority subject to the rejection of “Uttar Pradesh promotion by unfit and it shall not be necessary selection in consultation with to consult the Uttar Pradesh Public Public Service Commission Service Commission on the (Procedure) Rules, 1970” as principles to be followed in amended from time to time making promotion or on the suitability of candidates for promotion to the posts of Apar Sachiv, Sanyukt Sachiv, Sampatti Adhikari, Varisht Kar evam Rajaswa Adhikshak, Mukhya Abhiyanta Adhishashi Abhiyanta, Lekha Adhikari, Mukhya Nagar Niyojak, Nagar Niyojak, Karyalaya Adhikshak and Niji Sachiv mentioned in Schedule-I.

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[2018] 9 S.C.R.

AIt may be relevant to note that while doing away with the necessityof consultation with the UPPSC, the same was confined to the postsmentioned in the amended Rule, and the post of the ‘Assistant Engineer’was not mentioned in the same.

6. The next development was on 7.9.1994, when the 13[th]BAmendment to the Uttar Pradesh Public Service Commission(Limitation of Function) Regulations, 1954 (hereinafter referred to asthe ‘said Regulations’) were brought into force which did awayaltogether with the consultative process with the UPPSC regardingsuitability of candidates in making promotion to a post in the StateService. Taking into aid this amendment, a Departmental PromotionCCommittee for regular promotion of the Junior Engineers to the post of‘Assistant Engineer’ was held on 27.5.1995, which specifically recordedthat in view of this amendment, there was no need to consult the UPPSC.However, the endeavour made to do away with the process ofconsultation regarding suitability for promotion to services and posts,Dacross the board, did not meet with the approval of the Allahabad HighCourt, in the case of Sushil Chandra Srivastava vs. State of U.P. andOrs[1]., where it was held to be constitutionally invalid and the challengeto the aforementioned amendment was upheld, striking down as ultravires the said Regulations regarding promotion to the State services andposts. The judgment took note of Article 320(3) of the Constitution,Ewhich reads as under:

“320. Functions of Public Service Commissions. –

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(3) The Union Public Service Commission or the State PublicFService Commission, as the case may be, shall be consulted —(a) on all matters relating to methods of recruitment to civil servicesand for civil posts; xxxxxxxxxxxxxxxxxxxx Provided that the President as respects the all-India services andGalso as respects other services and posts in connection with theaffairs of the Union, and the Governor, as respects other servicesand posts in connection with the affairs of a State, may makeregulations specifying the matters in which either generally, or inany particular class of case or in any particular circumstances, it H11996 All LJ 1171

shall not be necessary for a Public Service Commission to beconsulted.”

7. The High Court noticed the Constitution Bench judgment ofthis Court in State of U.P. v. Manbodhan Lal,[2] declaring that Article320(3)(c) of the Constitution was directory in nature and making thefollowing observations, which were extracted by the High Court asfollows:

“If it had been intended by the makers of the Constitution thatconsultation with the Commission should be mandatory, the provisowould not have been there, or, at any rate, in the terms in which itstands. That does not amount to saying that it is open to theExecutive Government completely to ignore the existence ofthe Commission or to pick and choose cases in which it mayor may not be consulted.”

8. The High Court observed that in the instant case, by the im-pugned amendment, the process of consultation had been completelytaken away and, thus, it would fall within the caveat put by this Courtitself in the latter part of the aforesaid observation. This judgment hasbecome final.

9. The effect of the aforesaid judgment was, thus, clear that theprocess for promotion of Junior Engineers, would require consultationwith the UPPSC. However, despite this, an Office Memorandum dated29.12.1995 was issued promoting Junior Engineers to the post of‘Assistant Engineer’. To do so, reliance was placed on the amendmentto Rule 21, carried out by the 4[th] Amendment to the Rules on 8.9.1993,and since the said amendment to the Rules had not been struck down,the process of consultation was not required. This, however, completelymissed the aspect of the post of the ‘Assistant Engineer’ not being oneof the posts covered under the said amendment, a position, which couldnot be seriously disputed before us. The regularisation of these promoteeswas, however, made in pursuance of the 14[th] Amendment to the Rules,inserting Rule 21A, providing for regularisation of services of ad hocpromotees working prior to 30.6.1998.

10. The effect of this was that the regularisation would takeeffect from the date of their promotion, i.e., 29.12.1995. We may add 21958 SCR 533.

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Athat insofar as the seniority claim for inter se promotees is concerned,the same is covered by sub-rule (8) of Rule 21A, which reads as under:

“(8) A person promoted under this rule shall be entitled to seniorityonly from the date of order of promotion after selection inaccordance with these rules and shall, in all cases, be placed belowBthe persons promoted in accordance with the procedure forpromotion contained in sub-rule (5) prior to the promotion of suchperson under these rules.”

11. The gravamen of the dispute, thus, is that if the promoteeshave been promoted in accordance with law, in pursuance of the OfficeCMemorandum dated 29.12.1995, then they would rank as senior to theappellants who were regularised only on 20.11.2001 in pursuance of the7[th] Amendment dated 2.8.2001. It was in this background that theimpugned seniority list of the ‘Assistant Engineer’ was published on15.5.2007 with the promotees being put above the direct appointees. Itis this seniority list that has been assailed in the writ petition, which hasDbeen dismissed by the impugned order.

12. Learned counsel for the appellants sought to contend beforeus that in the absence of consultation with the UPPSC, the appointmentof the private respondents cannot be stated to be regular and, in fact,suffers from an inherent legal defect. The fact that consultation withEthe UPPSC was dispensed with initially under the umbrella of the13[th] Amendment to the said Regulations, notified on 7.9.1994, and thatumbrella having been lifted by the said Amendment being struck downby the Allahabad High Court vide judgment dated 19.10.1995, clearlymade the appointment of the private respondents illegal. The endeavourFto then bring the same within the 4[th] Amendment to the said Rules,notified on 8.9.1993, is to no avail as the post of ‘Assistant Engineer’was not mentioned as one of the posts for which consultation with theUPPSC had been dispensed with. Thus, while the blanket lifting ofconsultation with the UPPSC, as mentioned aforesaid, was struck down,the other amendment to the said Rules did not cover the case of theGprivate respondents.

13. On the other hand, the State Government sought to rebut thisargument on the ground that at best this was an irregular appointmentand not an invalid appointment as there could always be ex post facto

consultation with the UPPSC. This was, of course, an argument in thealternative, however, after not being able to really establish that the4[th] Amendment to the Rules dated 8.9.1993 did not specifically coverthe post of the ‘Assistant Engineer’. We may add that there can be noreal quibble with the proposition that such consultation, even as per theState Government’s answer to the RTI query raised by the appellants,was required wherever posts come within the purview of theCommission and thus, consultation is necessary insofar as the case ofthe promotion from ‘Junior Engineer’ to ‘Assistant Engineer’ isconcerned.

14. The second limb of the submission of Mr. P.N. Mishra, learnedSenior Counsel appearing for the State Government, rested on thesupport derived from the Constitution Bench judgment of this Court inDirect Recruit Class II Engineering Officers’ Association v. Stateof Maharashtra & Ors.[3] In the concluding paragraph number 47,laying down the propositions in respect of inter se seniority of promoteesand direct appointees, it was stated in sub-paragraph (B) as under:

“(B) If the initial appointment is not made by following theprocedure laid down by the rules but the appointee continues inthe post uninterruptedly till the regularisation of his service inaccordance with the rules, the period of officiating service will becounted.”

15. Since the challenge has been laid to the seniority list, it wascontended that even the officiating period of the promotees was liable tobe counted for their seniority in the promoted post. To further supportthis argument Rule 28(4) was specifically referred to, which deals withseniority and reads as under:

“28. Seniority –

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(4) Notwithstanding anything in sub-rule (1) the inter se seniorityof persons appointed by direct recruitment and by promotion shallbe determined from the date of joining the service in the case ofdirect recruits and from the date of continuous officiation in thecase of promotees and where the date of continuous officiationof promotee and the date of joining of the direct recruit is thesame, the person appointed by promotion shall be treated as senior; 3 (1990) 2 SCC 715

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AProvided that where appointments in any year of recruitment aremade both by promotion and direct recruitment and the respectivequota of the source is prescribed, the inter se seniority shall bedetermined by arranging the names in a combined list in accordancewith Rule 17 in such manner that the prescribed percentage ismaintained.”B

16. Mr. Amarendra Sharan, learned Senior Counsel for theprivate respondents, also sought to canvass the proposition that evenotherwise, consultation with the UPPSC was not mandatory in view ofthe provisions of Article 320(3) of the Constitution of India, as furtherenunciated by this Court in its Constitution Bench judgment in State ofCU.P. v. Manbodhan Lal[4]. Learned counsel also sought support fromthe 14[th] Amendment, which incorporated Rule 21A (sub-rule (8)extracted aforesaid) to state that the seniority of promotees has to becounted “only from the date of order of promotion after selection inaccordance with these rules.” We may, however, note that this sub-ruleDis really in respect of inter se seniority amongst the promotees.

17. We have examined the submissions of the learned counsel forthe parties.

17. We have examined the submissions of the learned counsel forthe parties.

18. The dispute, in our view, is a result of the ad hocism, whichtook place at the inception when the amendment was made to the saidEAct, with a view to provide better development by the authorities in theState of U.P. The regular process was not undertaken and a stop gaparrangement was made both in terms of promotees and direct appointees.This stop gap arrangement, however, acquired a more permanentfeature by continuation over a long period of time, without the regularFprocess being followed. This was in both the channels. Theappointment of the appellants themselves was not through a regularprocess of UPPSC, but was made through a selection done by aselection committee appointed vide Office Memorandum dated 25.8.1987.The appointment was on a fully temporary and ad hoc basis and was tocontinue for a maximum period of one year or up to the period untilGregular candidates were selected through the Public ServiceCommission. Yet, such a regular process never took place, but on theother hand such ad hoc appointments were sought to be regularised quapersons, who were recruited on or before 1.10.1986 as per the 3[rd]Amendment to the said Rules dated 7.2.1992. Even this amendment was not to the benefit of the appellants as, though they had beenrecruited on 25.8.1987, i.e., before the aforesaid amendment to the Rules,yet the cut-off date was kept as 1.10.1986. It is only subsequently,through the 7[th] Amendment to the said Rules dated 2.8.2001, that thebar was further shifted to 29.6.1991 to regularise persons like theappellants, and the appellants were regularised in terms of the OfficeMemorandum dated 20.11.2001. These amendments were carried outin consultation with the Governor, who was pleased to amend the Rules.

19. The object of discussing the aforesaid process of theappointment of appellants is to highlight that it is not as if the appellantsare persons who have been appointed through a normal process, butwere appointments made by a stop gap arrangement, which wasregularised.

20. Insofar as private respondents 5-10 are concerned, they arepromotees. They were Junior Engineers. In terms of the 50 per centquota as per Rules, they were drawn and promoted as ‘AssistantEngineers’. The Departmental Promotion Committee for promotion ofthe Junior Engineers to the post of the ‘Assistant Engineer’ was held on27.5.1995. There is some merit in the contention raised by the learnedSenior Counsel for the State Government that at the relevant time the13[th] Amendment had done away with the requirement of theconsultative process with the UPPSC altogether, and it was onlysubsequently, on 19.10.1995, that such amendments were struck down.It is, however, not in dispute that this judgement of the Allahabad HighCourt has become final. Not only that, the interpretation of Article 320(3)of the Constitution as enunciated in State of U.P. v. Manbodhan Lal[5]also makes it clear that while the intention of the makers of theConstitution may not be to provide for consultation with the Commissionas mandatory, in view of the proviso, it would not amount to saying thatit is open to the Executive Government to completely ignore theexistence of the Commission, as was sought to be done in the presentcase by doing away with such consultation across the board.

21. Faced with the aforesaid position, the course of action wassought to be justified by resting it on the 4[th] Amendment to the Rules,dated 8.9.1993, an aspect, which has found favour with the High Court,but runs contrary to the amendment itself. The amendment providessuch of the posts for which consultation was not required. Undisputedly,5 Supra A

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Athe post of the ‘Assistant Engineer’ is not mentioned as one of the suchposts. We, thus, fail to appreciate as to how the High Court could havetaken aid of this amendment to justify the action of the concernedauthorities. We, thus, have no hesitation in holding that suchconsultation was mandatory but was not done. The fact thatconsultation was done away as not necessary for certain posts itselfBimplies that it would be required for the posts not so mentioned.

22. Simultaneously, we are also of the view that the learnedSenior Counsel for the State Government is right in contending that thisis an irregularity and not an illegality, and such irregularity can always becured through prospective consultation.C

23. We may also add, as noted above, that insofar as sub-rule (8)of Rule 21A of the said Rules is concerned, that would not aid the presentdispute as it refers to the inter se seniority amongst the promotees.

24. Rule 28 of the said Rules, no doubt, stipulates that inter seDseniority of the persons appointed by direct recruitment would bedetermined from the date of joining the service. Once again, as noticedabove, the ad hoc appointment of the appellants was regularised from asubsequent date of 20.11.2001 and, thus, they can only claimappointment for inter se seniority from that date. This sub-rule, qua thepromotees, stipulates that the date of continuous officiation in the caseEof promotees would be the relevant date. The private respondents havebeen officiating from various dates and those would be the relevantdates, and those dates are prior to the appointment of the appellants.The only irregularity is the non-consultation with the UPPSC.

25. We do find it rather ironic that the appellants who themselvesFwere on an ad hoc basis originally and not through a regular process,seek to challenge the seniority list on the basis of this technicalobjection. Their appointment itself has never been through UPPSC, asenvisaged under the Rules.

26. Be that as it may, in order to cure the defect which is apparentGinsofar as the confirmation of the private respondents/promotees isconcerned, we consider it appropriate to direct that the StateGovernment should move the UPPSC for consultation within amaximum period of two months from today, and dependent on the resultof the consultative process, action be taken, and the seniority list should H

govern accordingly. This would imply that the promotees wouldcontinue to maintain their position in the seniority list so long as there isa favourable opinion of the UPPSC, and only in case of such candidatesthat the UPPSC advises otherwise, i.e., negatively, would that personnot be eligible to form a part of the same seniority. We make it clear thatwith the consultation of the UPPSC, a quietus must be put to this disputein terms of what we have observed and no further litigation should beentertained in this behalf, in case the UPPSC concurs.

27. The appeals are accordingly disposed of in terms aforesaidleaving the parties to bear their own costs.

Kalpana K. Tripathy

Appeals disposed of.

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