SIRAJ AHMAD versus STATE OF UTTAR PRADESH & ANR. on 13 December 2019

[2019] 16 S.C.R. 1131

SIRAJ AHMAD

v.

STATE OF UTTAR PRADESH & ANR.

(Civil Appeal No. 9412 of 2019)

DECEMBER 13, 2019

[S. A. BOBDE, CJI., B. R. GAVAI AND SURYA KANT, JJ.]

U.P. Development Authorities Centralised Service Rules, 1985– Sub.r.(3) of r.24 – Promotion – Claim for – Appellant underwentthe selection process conducted by the State under the provisionof the Rules, 1985 and was appointed on ad-hoc basis on the postof Junior Engineer by Respondent No.1 – While in serviceappellant obtained the degree in B.Sc.-Engineering – Thereafter,appellant sought promotion u/sub. r.(3) of r.24 of the Rules –Appellant was not promoted – Writ petition by appellant wasrejected by the High Court – The State contended that theappointment was not made with the concurrence of U.P. PublicService Commission, therefore, appellant’s appointment was illegal– Appellant contended that he was entitled for promotion as hewas continuously employed from the date of initial appointment –On appeal, held: The case of appellant was squarely covered bythe judgment of the Constitution Bench in the case of Direct RecruitClass II Engineering Officers Association – It was not in disputethat except the concurrence of the U.P. Public Service Commissionthe appointment of the appellant was made after following theprocedure prescribed under the said Rules – The appointment ofthe appellant at the most can be termed as irregular and not illegal– The appellant had uninterruptedly served till the regularisationof his service which was made in accordance with the Rules –Further, the Respondent had issued an office memorandum dated11.03.1994 providing for relaxation of the condition whichprescribed minimum 10 years service on the post of JuniorEngineer – By the said office memorandum, the governmentprovided that 5% of the posts out of 50% promotional quota wereto be reserved for such Junior Engineers, who had passed B.E.or A.I.M.E. Examination – Appellant possessed the saidqualification – The High Court in another similarly circumstancedcase had directed for consideration for the purpose of promotion

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Ato the higher post – However, the High Court in the case of theappellant rejected his claim for promotion – The High Court hadconsidered the case of two employees differently when they weresimilarly circumstanced – Therefore, in view of the officememorandum dated 11.03.1994, the appellant was entitled to bepromoted immediately after the issuance of the said officeBmemorandum as he possessed the requisite degree when the saidoffice memorandum was issued – The High Court erred indismissing the petition of the appellant – Service Law.

Allowing the appeal, the Court

CHELD: 1. The Constitution Bench in Direct Recruit ClassII Engineering Officers Association case in unequivocal termsholds that, if an appointment is made by way of stopgaparrangement without considering the claims of all the eligiblepersons and without following the rules of appointment, theexperience of such appointment cannot be equated with theDexperience of a regular appointee, because of qualitativedifference in the appointment. It however holds, that if theappointment is made after considering the claims of all eligiblecandidates and the appointee continues in the postuninterruptedly till the regularisation of his service inaccordance with the rules made for regular substantiveEappointments, there is no reason to exclude the officiatingservice for purpose of seniority. [Para 18] [1140-E-G]

2. It can thus clearly be seen, that the Constitution Benchin unequivocal terms holds that, if the initial appointment is notmade by following the procedure laid down by the rules, but theFappointee continues in the post uninterruptedly till theregularisation of his service in accordance with the rules, theperiod of officiating service will be counted. [Para 20] [1141-D]

3. It is not in dispute, that except the concurrence of theU.P. Public Service Commission the appointment of the appellantGhas been made after following the procedure prescribed underthe said Rules. The appellant has uninterruptedly served till theregularisation of his service which was made in accordance withthe rules. It can thus be seen that the case of present appellantis squarely covered by the judgment of the Constitution Benchin the case of Direct Recruit Class II Engineering OfficersHAssociation. [Para 21] [1141-E-F]

4. It is further to be noted that the Respondent had issuedan office memorandum dated 11.03.1994 thereby, providing forrelaxation of the condition which prescribed minimum 10 yearsservice in the post of Junior Engineer. Schedule-3 to the saidRules provided, that for being eligible to the promotion ofAssistant Engineer along with the educational qualification acandidate must possess 10 years service, in the post of JuniorEngineer on 01[st] July of the selection year. By the said officememorandum, the Government provided that 5% of the postsout of 50% promotional quota are to be reserved by extendingrelaxation to such of the Junior Engineers, who have passed B.E.or A.M.I.E. examination. It further provided, that in casecandidates possessing B.E./A.M.I.E. examination were notavailable, the post should be filled in from non Graduate JuniorEngineers. It is to be noted that the Government had also soughtinformation from the Development Authorities with regard to thenumber of persons possessing the requisite B.E./A.M.I.E.degree. In response to the said communication the AgraDevelopment Authority had intimated the respondent state thename of the appellant being the only person possessing the saidqualification. [Para 22] [1141-G-H; 1142-A-B]

5. This Court fails to appreciate as to how the same HighCourt could have considered the case of two employeesdifferently when they were similarly circumstanced. It is not indispute that the present appellant as well as other employeewere selected through the same selection process though theirorders of appointment differs. The only ground on which theHigh Court has refused to consider the case of the appellant isthat in the case of the other employee, the court had notconsidered the issue with regard to non-concurrence of the U.P.Public Service Commission. At the cost of repetition asdiscussed herein above the appointment of the appellant at themost can be considered as irregular and not illegal [Paras 23and 26] [1142-C; 1143-E-F]

6. It is to be noted that the appellant has obtained theBachelor of Science (Engineering) degree in the year 1987 andthough the other three employees had obtained the degree ofA.M.I.E. in the year 1993 and 1994, they were held entitled for AB

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Apromotion as Assistant Engineer from Junior Engineer. ThisCourt fails to appreciate the approach of the High Court indenying the promotion to the appellant when all the other threeemployees were appointed in the year 1987 through the sameselection process and though one of them had obtained thedegree in 1993 and other two had obtained the same in 1994Bwhereas the appellant had obtained the said degree in 1987.[Para 27] [1143-G-H; 1144-A]

7. It could thus be seen that, in view of the officememorandum dated 11.03.1994, the appellant was entitled to bepromoted immediately after the issuance of the said officeCmemorandum as he possessed the requisite degree when thesaid office memorandum was issued. In any case the appellantis entitled to be promoted with effect from 18.01.1995 i.e. thedate on which the juniors to him were promoted. [Para 28][1144-B-C]

DDirect Recruit Class – II Engineering OfficersAssociation v. State of Maharashtra and others (1990)2 SCC 715 : [1990] 2 SCR 900 ; Secy., State ofKarnataka v. Uma Devi (2006) 4 SCC 1 : [2006] 3SCR 953 – followed.

EState of M.P. and ors. v. Lalit Kumar Verma (2007) 1SCC 575 : [2006] 9 Suppl. SCR 591 ; State ofKarnataka and Others v. M. L. Kesari and Others(2010) 9 SCC 247 : [2010] 9 SCR 543 – relied on.

Rajendra Prasad Dwivedi v. State of U.P. and othersFWrit Petition No. 3421 of 1996 ; State of U.P. v. R. P.Dwivedi in its Order dated 13.02.2014 in SpecialAppeal No. 75 of 2012 – referred to.

Case Law Reference

[1990] 2 SCR 900followedPara 6G[2006] 9 Suppl. SCR 591relied onPara 11[2006] 3 SCR 953followedPara 11[2010] 9 SCR 543relied onPara 13

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9412Hof 2019.

From the Judgment and Order dated 11.09.2017 of the HighCourt of Judicature at Allahabad, Lucknow Bench in WP (ServiceBench) No. 1020 of 2015.

P. S. Patwalia, Sr. Adv., M. R. Shamshad, Aditya Samaddar, ArijitSarkar, Advs. for the Appellant.

V. Shekhar, Sr. Adv., Rajeev Kumar Dubey, Ashiwan Mishra,Sheetal Rajput, Kamlendra Mishra, Bhakti Vardhan Singh, Advs. forthe Respondents.

The following Judgment of the Court was delivered:

JUDGMENT

1. Leave granted.

2. Heard the learned Counsels for the parties.

3. The appeal challenges the Judgment and Order dated11.09.2017, passed by the division bench of Allahabad High Court inW.P.(Service Bench) No. 1020 of 2015, thereby dismissing the WritPetition filed by appellant.

4. The facts giving rise to the present appeal are as under:

The appellant was appointed on ad-hoc basis on the post of JuniorEngineer in the pay scale of Rs. 485-860/- by order dated 30.03.1987,issued by Respondent No. 1. It is not in dispute that the said Orderwas issued with prior approval of the Governor of Uttar Pradesh. It isalso not in dispute, that the said appointment was made after the postwas advertised and after the appellant underwent the selection processconducted by the State under the provisions of U.P. DevelopmentAuthorities Centralized Services Rules, 1985 (hereinafter referred as“the said Rules”). Pursuant to the selection and appointment, theappellant joined with the Agra Development Authority on 08.04.1987.While in service the appellant obtained the degree in B.Sc.-Engineeringfrom Aligarh Muslim University, Aligarh on 08.06.1987. The appellantthereafter through proper channel communicated the respondents thefact regarding obtaining of requisite qualification and being eligible forconsideration for promotion, to the post of Assistant Engineer (Civil),in the Centralised Services under Sub Rule (3) of Rule 24 of the saidRules. It is the case of the appellant, that the State Government hadsought information from all the Development Authorities videcommunication dated 25.09.1987 with regard to the number of JuniorEngineers possessing the degree of Bachelor of Engineering / A.M.I.E.

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AIn compliance to the said communication the Vice-Chairman of AgraDevelopment Authority informed the State Government that in AgraDevelopment Authority appellant was the only Junior Engineer, who waspossessing the degree of Bachelor of Engineering.

5. Since the appellant was not promoted, he made variousBrepresentations to the State seeking promotion. The appellant hadclaimed the promotion from 18.01.1995, i.e. the date on which the juniorsto the appellant were promoted. The appellant’s claim for promotioncame to be rejected on 16.04.2015. Hence the appellant approachedthe division bench of the High Court by way of Writ Petition. The petitioncame to be rejected. Hence, the present appeal.C

6. Shri P.S. Patwalia, learned Senior Counsel appearing on behalfof appellant submits, that the appellant’s services already stoodregularised from 23.11.2002 and as such in view of the law laid downby the Constitution Bench of this Court in the case of Direct RecruitClass – II Engineering Officers Association vs. State ofDMaharashtra and others[1], the appellant was entitled for promotionby treating his continuous service from the date of initial appointment.

7. The learned Senior Counsel further submits that, as a matterof fact the Allahabad High Court itself, in the case of Rajendra PrasadDwivedi vs. State of U.P. and others[2], vide judgment and order datedE19.08.2011, had directed the State Government to consider the case ofsaid Shri Dwivedi for promotion to the post of Assistant Engineer aftercompletion of 10 years of service as Junior Engineer, provided they hada B.E./A.M.I.E. degree.

8. It is further submitted, that vide subsequent Order datedF09.11.2011, the Allahabad High Court had modified its Order in viewof the Judgment of the Constitution Bench of this Court in DirectRecruitment of Class – II Engineering Officers Association (supra),wherein it is observed, that the petitioner therein, i.e. Rajendra PrasadDwivedi, became eligible for promotion to the post of Assistant Engineeras soon as he obtained qualification of A.M.I.E. in 1993. He submits,Gthat vide said Order, it was held that if the promotion was given to anyother Junior Engineer, junior to the petitioner therein, the petitionertherein was also eligible for promotion from the said date along with 1 1990 (2) SCC 715H2 Writ Petition No. 3421 of 1996

consequential benefits. The learned Senior Counsel submits that thelearned Single Judge who passed the Order in the case of RajendraPrasad Dwivedi was the same learned Judge heading the bench in thecase of present appellant and, as such, there was no reason as to whythe appellant ought not to have been given the same benefit.

9. Per contra, Mr. V. Shekhar, learned Senior Counsel, appearingon behalf of the State submits that, under the rules it was necessarythat the appointment was made with concurrence of U.P. Public ServiceCommission. He submits, undisputedly the appellant’s appointment wasnot made with the concurrence of U.P. Public Service Commission. Itis therefore submitted, that as such the appellant’s appointment will haveto be termed as illegal. He therefore submits, that the High Court hasrightly refused to take into consideration the services of the appellant,prior to the date on which his services came to be regularised.

10. The facts in the present case are not in dispute. Undisputedlythe appellant’s initial appointment in the year 1987 was after theadvertisement was issued for the posts in Centralised Servicesconstituted under the said Rules. It is also not in dispute, that theappellant was selected after he underwent the entire selection processby competing with other persons, who had also applied for the said post.The only issue that the learned Judges of the division bench have foundagainst the appellant is that the appellant’s selection was not made indue consultation with the U.P. Public Service Commission.

11. This court in the case of State of M.P. and ors. vs. LalitKumar Verma[3], after considering the Judgment of Constitution Benchof this Court in the case of Secy., State of Karnataka vs. UmaDevi(3)[4], observed thus :

“12. The question which, thus, arises for consideration, would be:Is there any distinction between “irregular appointment” and“illegal appointment”? The distinction between the two terms isapparent. In the event the appointment is made in total disregardof the constitutional scheme as also the recruitment rules framedby the employer, which is “State” within the meaning of Article12 of the Constitution of India, the recruitment would be an illegalone; whereas there may be cases where, although, substantialcompliance with the constitutional scheme as also the rules have 3 (2007) 1 SCC 575

4 (2006) 4 SCC 1

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1138SUPREME COURT REPORTS

Abeen made, the appointment may be irregular in the sense thatsome provisions of some rules might not have been strictlyadhered to.”

12. It can thus be seen that this court has held that the distinctionbetween irregular appointment and illegal appointment is clear. It hasBbeen held that in the event appointment is made in total disregard tothe constitutional scheme and the recruitment rules framed by theemployer, where the employer is a “State” within the meaning of Article12 of the Constitution of India, the recruitment will be illegal one. Ithas however been held, that where although, substantial compliance withthe constitutional scheme, as also the rules have been made, theCappointment would become irregular in as much as the some provisionsof some rules have been adhered to.

13. Subsequently another bench of this Court in the case of Stateof Karnataka and Others vs. M. L. Kesari and Others[5] also had anoccasion to consider the issue. The Court observed thus :

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“7. It is evident from the above that there is an exception to thegeneral principles against “regularisation” enunciated in Umadevi(3) [(2006) 4 SCC 1] , if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10years or more in duly sanctioned post without the benefitEor protection of the interim order of any court or tribunal.In other words, the State Government or itsinstrumentality should have employed the employee andcontinued him in service voluntarily and continuously formore than ten years.

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F(ii) The appointment of such employee should not be illegal,even if irregular. Where the appointments are not madeor continued against sanctioned posts or where thepersons appointed do not possess the prescribedminimum qualifications, the appointments will beconsidered to be illegal. But where the person employedGpossessed the prescribed qualifications and was workingagainst sanctioned posts, but had been selected withoutundergoing the process of open competitive selection,such appointments are considered to be irregular.”

14. This court held, that where the appointment are not made orcontinued against sanctioned posts or where the persons appointed donot possess the prescribed minimum qualifications, the appointment willbe considered to be illegal. However, when the person employedpossessed the prescribed qualifications and is working against thesanctioned posts, but had been selected without undergoing the processof open competitive selection, such appointments are considered to beirregular.

15. As already discussed herein above, the appellant had appliedin pursuance to the advertisement issued by State for the post in theCentralised Services under the provisions of the said rules. The appellanthad participated in the selection process along with the othercompetitors. The appellant was possessing the requisite qualification andwas selected after competing with others and was appointed againstthe sanctioned posts for a period of One year. Undisputedly the appellantthereafter has continuously rendered his services, till the date ofregularisation of his services i.e. on 23.11.2002 and even thereafter tilldate. As such appellant’s case would be on a much better pedestal thatthe one which fall for consideration in the case of M.L. Kesari (Supra).

16. It can thus be seen that the only issue which is found againstthe appellant is that prior to appointment there was no concurrence ofthe U.P. Public Service Commission. It can thus be seen that theappointment of the appellant at the most can be termed as irregularand not illegal.

17. It will be apposite to refer to the following observations ofthe constitution bench judgment of this Court in the case of DirectRecruit Class II Engineering Officers Association (supra), theconstitution bench has observed thus “13. When the cases were taken up for hearing before us, it wasfaintly suggested that the principle laid down in Patwardhancase [(1977) 3 SCC 399: 1977 SCC (L&S) 391: (1977) 3 SCR775] was unsound and fit to be overruled, but no attempt wasmade to substantiate the plea. We were taken through thejudgment by the learned counsel for the parties more than onceand we are in complete agreement with the ratio decidendi, thatthe period of continuous officiation by a government servant, afterhis appointment by following the rules applicable for substantiveappointments, has to be taken into account for determining his AB

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Aseniority; and seniority cannot be determined on the sole test ofconfirmation, for, as was pointed out, confirmation is one of theinglorious uncertainties of government service depending neitheron efficiency of the incumbent nor on the availability ofsubstantive vacancies. The principle for deciding inter se seniorityhas to conform to the principles of equality spelt out by ArticlesB14 and 16. In Baleshwar Dass v. State of U.P. [(1980) 4 SCC226: 1980 SCC (L&S) 531: (1981) 1 SCR 449] and Delhi WaterSupply and Sewage Disposal Committee v. R.K.Kashyap [1989 Supp (1) SCC 194: 1989 SCC (L&S) 253: (1989)9 ATC 784] , with which we are in agreement. In NarenderCChadha v. Union of India [(1986) 2 SCC 157: 1986 SCC (L&S)226: (1986) 1 SCR 211] the officers were promoted althoughwithout following the procedure prescribed under the rules, butthey continuously worked for long periods of nearly 15-20 yearson the posts without being reverted. The period of theircontinuous officiation was directed to be counted for seniorityDas it was held that any other view would be arbitrary and violativeof Articles 14 and 16. There is considerable force in this viewalso. We, therefore, confirm the principle of counting towardsseniority the period of continuous officiation following anappointment made in accordance with the rules prescribed forEregular substantive appointments in the service.”18. The constitution bench in unequivocal terms holds that, if anappointment is made by way of stopgap arrangement withoutconsidering the claims of all the eligible persons and without followingthe rules of appointment, the experience of such appointment cannot

Fbe equated with the experience of a regular appointee, because ofqualitative difference in the appointment. It however holds, that if theappointment is made after considering the claims of all eligiblecandidates and the appointee continues in the post uninterruptedly tillthe regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude theGofficiating service for purpose of seniority.

19. The constitution bench concludes thus :

“47. To sum up, we hold that:

A) Once an incumbent is appointed to a post according toHrule, his seniority has to be counted from the date of his appointment and not according to the date of hisconfirmation.

The corollary of the above rule is that where the initialappointment is only ad hoc and not according to rulesand made as a stop-gap arrangement, the officiation insuch post cannot be taken into account for consideringthe seniority.

B) If the initial appointment is not made by following theprocedure laid down by the rules but the appointeecontinues in the post uninterruptedly till the regularisationof his service in accordance with the rules, the periodof officiating service will be counted.

…….”

20. It can thus clearly be seen, that the Constitution Bench inunequivocal terms holds that, if the initial appointment is not made byfollowing the procedure laid down by the rules, but the appointeecontinues in the post uninterruptedly till the regularisation of his servicein accordance with the rules, the period of officiating service will becounted.

21. It is not in dispute, that except the concurrence of the U.P.Public Service Commission the appointment of the appellant has beenmade after following the procedure prescribed under the said Rules.The appellant has uninterruptedly served till the regularisation of hisservice which was made in accordance with the rules. It can thus beseen that the case of present appellant is squarely covered by thejudgment of the Constitution Bench in the case of Direct Recruit ClassII Engineering Officers Association (supra).

22. It is further to be noted that the Respondent had issued anoffice memorandum dated 11.03.1994 thereby, providing for relaxationof the condition which prescribed minimum 10 years service in the postof Junior Engineer. Schedule-3 to the said Rules provided, that for beingeligible to the promotion of Assistant Engineer along with the educationalqualification a candidate must possess 10 years service, in the post ofJunior Engineer on 01[st] July of the selection year. By the said officememorandum, the Government provided that 5% of the posts out of50% promotional quota are to be reserved by extending relaxation tosuch of the Junior Engineers, who have passed B.E. or A.M.I.E.

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Aexamination. It further provided, that in case candidates possessing B.E./ A.M.I.E. examination were not available, the post should be filled infrom non Graduate Junior Engineers. As discussed herein above, it isto be noted that the Government had also sought information from theDevelopment Authorities with regard to the number of personspossessing the requisite B.E. / A.M.I.E. degree. In response to the saidBcommunication the Agra Development Authority had intimated therespondent state the name of the appellant being the only personpossessing the said qualification.

23. We further fail to appreciate as to how the same High Courtcould have considered the case of two employees differently when theyCwere similarly circumstanced. It is not in dispute that the presentappellant as well as Rajendra Prasad Dwivedi were selected throughthe same selection process though their orders of appointment differs.It will be appropriate to refer to the observation made by the AllahabadHigh Court in Writ Petition No. 3421 of 1996 in the case of RajendraDPrasad Dwivedi vs. State of U.P. which reads thus:

“Upon perusal of the Government Orders dated 26th of August,1992 as well as 11th of March, 1994, I find force in thesubmission of the petitioner, therefore, I am of the view that assoon as the petitioner obtained the qualification of AMIE in 1993,he became eligible for promotion to the post of AssistantEEngineer. Though only gaining the qualification does not createright of promotion, but I am of the view that if thereafter anypromotion has been given to others particularly junior to thepetitioner, the petitioner is liable to be considered for promotionfrom the said date alongwith consequential benefits.

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FIn light of the law laid down by the Hon’ble Supreme Court, inthe case referred to here-in-above, I hereby also observe thatthe fact that the petitioner was not confirmed in the service, shallnot come in the way of the petitioner’s promotion as animpediment and the petitioners services even on ad hoc basis onthe post of Junior Engineer shall be taken into consideration forGthe purpose of promotion to the higher post.Accordingly adirection is issued to the respondents to consider the petitioner’scase for promotion to the higher post from the date of promotionof his junior within two months, after receipt of a certified copyof this order”

(emphasis supplied)

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24. The above judgment of the learned Single Judge dated09.11.2011 was carried in appeal before the division bench of the saidcourt. The division bench of the Allahabad High Court in Special AppealNo. 75 of 2012 in State of U.P. Vs. R. P. Dwivedi in its Order dated13.02.2014 observed thus:

“On due consideration of rival submissions, we find considerableforce in the arguments of respondent. The condition of length often years’ service was relaxed. The respondent, though appointedon ad-hoc basis as Junior Engineer on 24.02.1987, had obtainedthe degree of AMIE on 10.10.1993 before Sri Sunil Dutt Sharmaand Sri Sajid Hasan who passed the examination in 1994. As thevacancies were available and the private respondent was qualifiedto be considered for promotion in 1993, he should have beenconsidered even prior to the aforesaid persons. ....”

(emphasis supplied)

25. The State had also carried the said matter by way of SpecialLeave Petition Civil (CC) No. 13830-31 of 2014 before this court. TheSLP also came to be dismissed on 12.01.2015. The state thereafterpreferred a Review Petition, seeking review of the Judgment of divisionbench in the case of State of U.P. vs. Rajendra Prasad Dwivedi byway of Review Petition No. 188 of 2015. The said Review Petition isalso dismissed.

26. The only ground on which the High Court has refused toconsider the case of the appellant is that in the case of Rajendra PrasadDwivedi, the court had not considered the issue with regard to non-concurrence of the U.P. Public Service Commission. At the cost ofrepetition as discussed herein above the appointment of the appellantat the most can be considered as irregular and not illegal.

27. It is to be noted that the appellant has obtained the Bachelorof Science (Engineering) degree in the year 1987 and though RajendraPrasad Dwivedi had obtained the A.M.I.E. in 1993, taking intoconsideration that Sunil Dutt Sharma and Sajid Hasan had obtained thedegree of A.M.I.E. in 1994, the said Rajendra Prasad Dwivedi washeld to be entitled for promotion on 18.01.1995 i.e. the date on whichthe said Sajid Hasan and Sunil Dutt Sharma were promoted as AssistantEngineer from Junior Engineer. We fail to appreciate the approach ofthe High Court in denying the promotion to the appellant when all the A

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Aother three i.e. namely Rajendra Prasad Dwivedi, Sajid Hasan and SunilDutt Sharma were appointed in the year 1987 through the same selectionprocess and though Rajendra Prasad Dwivedi had obtained the degreein 1993 and Sajid Hasan and Sunil Dutt Sharma had obtained the samein 1994 whereas the appellant had obtained the said degree in 1987.

B28. It could thus be seen that, in view of the office memorandumdated 11.03.1994, the appellant was entitled to be promoted immediatelyafter the issuance of the said office memorandum as he possessed therequisite degree when the said office memorandum was issued. In anycase the appellant is entitled to be promoted with effect from 18.01.1995i.e. the date on which the juniors to him were promoted.C

29. As already discussed, the non-concurrence with the U.P.Public Service Commission, at the most would make the appointmentof the appellant irregular and not illegal. We are therefore of theconsidered view that the High Court erred in dismissing the petition ofthe appellant. The appeal deserves to succeed on more than one ground.D

30. Hence, the following order:

(i) The appeal is allowed;

(ii) The Judgment and Order passed by the High Courtdated 11.09.2017 is quashed and set aside; E

(iii) The Order passed by the Respondent No. 1, dated16.04.2015 is quashed and set aside.

(iv) It is held and declared that the petitioner is entitled topromotion to the post of Assistant Engineer (Civil) fromthe date on which his junior possessing the Bachelor ofFEngineering / A.M.I.E. has been promoted with allconsequential benefit.

(v) In the facts and circumstances, there shall be no orderas to costs.

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Ankit Gyan

Appeal allowed.

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