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Promotion by considering the period of service done on adhoc basis = No = whether the applicant has any legal right to be considered for the post of Executive Engineer (Mechanical). It is seen he was an ad-hoc appointee for various periods of time from 23.3.1999 till his regularization as Assistant Engineer on 29.4.2005. His orders on 29.4.2005 appointing him as an Assistant Engineer on regular basis also stipulated that he would be on probation for two years. The applicant at the time of such regularization on 29.4.2005 did not challenge the same nor did he make a representation at that time for treating his previous service on ad-hoc basis from 23.3.99 to 29.4.2005 as regular service. He accepted the order as per Annexure-A/1 together with the probation of two years period. Having done this he cannot now come and make a claim that his entire period from 23.3.99 onwards should be regularized so that he can avail of the recruitment rules for being promoted as Executive Engineer on the promotion quota. As per recruitment of Executive Engineer, the applicant is not eligible since 8 years of regular service is required.”= as per the extant rules for promotion to the post of Executive Engineer (Mechanical) 8 years regular service as Assistant Engineer is imperative. The Rules do not provide for any relaxation in this behalf. This is clear from the reading of the said rules which provide for appointment to the post of Executive Engineer (Mechanical). As per the Recruitment Rules, post of Executive Engineer (Mechanical) is a selection post. The mode of recruitment stated in the Rules is as under: “By promotion failing which by transfer on deputation (including short-term contract) and failing both by direct recruitment.” The Recruitment Rules also stipulate eligibility condition in all the three circumstances, namely, promotion, transfer on deputation as well as direct recruitment. In so far as filling up of this post by way of promotion is concerned, following requirements are stipulated for a candidate to be eligible in that category: “PROMOTION: Assistant Engineer (Mechanical) with 8 years regular service in the grade.”- there are three alternate modes of recruitment to the Post, namely, (1) by promotion, failing which (2) by transfer on deputation (including short term contract) and failing both (3) by direct recruitment. No doubt, if some departmental candidate is available and eligible to be considered, the promotion method is to be resorted to in the first instance. However, no departmental candidate was available. Concededly, the respondent had not completed 8 years regular service as Assistant Engineer. In such circumstances only out of sympathy the High Court could not have given the impugned direction. This judicial sympathy resulting into a right in favour of respondent to appoint him contrary to the recruitment rules framed under proviso to Article 309 of the Constitution of India which are statutory in nature is clearly misplaced and needs to be denounced. Such a direction is clearly unsustainable and is accordingly set aside. As a result, the appeal is allowed restoring the order of the Tribunal dismissing the O.A. filed by the respondent. No costs.

published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40684                                 

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7032/2013
(arising out of S.L.P.(Civil) No. 20506 OF 2011)

Union of India & Ors.
….Appellants

Vs.

Shri G.R.Rama Krishna & Anr.
…..Respondents

 

J U D G M E N T

 

A.K.SIKRI,J.

1. Leave granted.

2. The respondent No.1 herein (hereinafter referred to as the
respondent) was appointed as Engineering Assistant (Mechanical) in Andaman
Lakshdeep Harbour Works (ALHW) on ad-hoc basis with effect from 17.4.1979.
Though this ad-hoc period was of one year, the respondent continued to work
in the capacity even thereafter without obtaining the approval of the
Department of Personnel and Training. The services were continued as
ALHW was facing lots of problems due to shortage of staff at various
levels. He was later on promoted as Inspector of Works on ad-hoc with
effect from 11.11.1984. This post was later on merged with that of Junior
Engineer and thus the respondent was accorded the status of Junior
Engineer.

3. Next promotion from Junior Engineer is to the post of Assistant
Engineer. Again on ad-hoc basis, the respondent was promoted as Assistant
Engineer with effect from 23.9.1999. He was given regular promotion as
Assistant Engineer (Mechanical) on 2.6.2005 and was put on probation for a
period of two years from that date. The respondent submitted his
representation dated 13.10.2008 for treating the ad-hoc period of Assistant
Engineer from the 23.9.1999 to 24.8.2005 as regular service for promotion
to the next higher post i.e. Executive Engineer (Mechanial). This
representation was turned down by the authorities with the result that the
respondent was treated as regularly appointed Assistant Engineer only from
24.8.2005.

4. On 10/16.1.2009, the U.P.S.C. advertised the post of Executive
Engineer (Mechanical) for filling up on direct recruitment basis and fixed
the date of interview as 27.2.2009. This move for filling up of the post
of Executive Engineer (Mechanical) adopting the mode of direct recruitment
was taken on the premise that no departmental candidate was available
inasmuch as 8 years regular service as Assistant Engineer was needed for
promotion to the post of Executive Engineer, and no departmental employee
fulfilled this condition.

5. The respondent filed O.A. before the Central Administrative Tribunal
challenging the proposal of the UPSC to fill the post on direct recruitment
basis contending that he was eligible to be considered for such a promotion
as after counting the ad-hoc period he had completed the requisite number
of years as Assistant Engineer.

6. This O.A. was dismissed by the Tribunal taking note of the
recruitment rules as per which regular service of 8 years is mentioned as
qualifying service to become eligible for the post of Executive Engineer.
The relevant portion of the order of the Central Administrative Tribunal in
this behalf reads as under:

“The point to be considered here is whether the applicant
has any legal right to be considered for the post of Executive
Engineer (Mechanical). It is seen he was an ad-hoc appointee
for various periods of time from 23.3.1999 till his
regularization as Assistant Engineer on 29.4.2005. His orders
on 29.4.2005 appointing him as an Assistant Engineer on regular
basis also stipulated that he would be on probation for two
years. The applicant at the time of such regularization on
29.4.2005 did not challenge the same nor did he make a
representation at that time for treating his previous service on
ad-hoc basis from 23.3.99 to 29.4.2005 as regular service. He
accepted the order as per Annexure-A/1 together with the
probation of two years period. Having done this he cannot now
come and make a claim that his entire period from 23.3.99
onwards should be regularized so that he can avail of the
recruitment rules for being promoted as Executive Engineer on
the promotion quota. As per recruitment of Executive Engineer,
the applicant is not eligible since 8 years of regular service
is required.”

 

The Tribunal thus opined that the respondent had not made any case for
quashing the steps taken by the U.P.S.C. for filling up the post of the
Executive Engineer (Mechanical) through direct recruitment as recruitment
rules.

7. Against the judgment of the Tribunal, the respondent filed the Writ
Petition in the High Court of Calcutta (District : Andaman). The High
Court has allowed the Writ Petition and modified the order of the Tribunal
by directing that the respondent be appointed as Executive Engineer after
observing all other formalities. This direction is given by the High Court
as a special case, without setting it as precedence, as is clear from the
operative portion of this order:

“In this case the petitioner by way of a stop gap arrangement
worked in an ad-hoc basis which in other words amounted to a
permanent arrangement since he was allowed to perform for a long
time since the post is still vacant. There is no reason as to
why the petitioner who had put in such a length of service should
be denied an opportunity of being promoted in the absence of any
adverse situation against him.

Keeping in view peculiar facts and circumstances of the present
case, without setting it as a precedence and as a very special
case more so as the Petitioner has been working since 1990 till
date in the capacity of Assistant Engineer which is a feeder post
of the Executive Engineer (Mechanical), we would direct that he
be appointed as Executive Engineer (Mechanical) in the
establishment of the Respondent No.1 after observing all other
formalities.”

 

 

 

8. We are unable to appreciate the aforesaid approach of the High Court.
It is not disputed before us that as per the extant rules for promotion to
the post of Executive Engineer (Mechanical) 8 years regular service as
Assistant Engineer is imperative. The Rules do not provide for any
relaxation in this behalf. This is clear from the reading of the said
rules which provide for appointment to the post of Executive Engineer
(Mechanical). As per the Recruitment Rules, post of Executive Engineer
(Mechanical) is a selection post. The mode of recruitment stated in the
Rules is as under:

“By promotion failing which by transfer on deputation (including
short-term contract) and failing both by direct recruitment.”

 
The Recruitment Rules also stipulate eligibility condition in all the
three circumstances, namely, promotion, transfer on deputation as well as
direct recruitment. In so far as filling up of this post by way of
promotion is concerned, following requirements are stipulated for a
candidate to be eligible in that category:

“PROMOTION:
Assistant Engineer (Mechanical) with 8 years regular service in the
grade.”

 
9. From the aforesaid, it becomes apparent that there are three
alternate modes of recruitment to the Post, namely, (1) by promotion,
failing which (2) by transfer on deputation (including short term contract)
and failing both (3) by direct recruitment. No doubt, if some departmental
candidate is available and eligible to be considered, the promotion method
is to be resorted to in the first instance. However, no departmental
candidate was available. Concededly, the respondent had not completed 8
years regular service as Assistant Engineer. In such circumstances only
out of sympathy the High Court could not have given the impugned direction.
This judicial sympathy resulting into a right in favour of respondent to
appoint him contrary to the recruitment rules framed under proviso to
Article 309 of the Constitution of India which are statutory in nature is
clearly misplaced and needs to be denounced. Such a direction is clearly
unsustainable and is accordingly set aside. As a result, the appeal is
allowed restoring the order of the Tribunal dismissing the O.A. filed by
the respondent. No costs.

 

……………………………….J.
(K.S.Radhakrishnan)

 

…………………………………J.
(A.K. Sikri)
New Delhi,
Dated: 23rd August, 2013

 

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