Jagdish Chandra Kandpal And Others vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

The petitioners, four in number, have invoked the jurisdiction of this Court seeking a writ of mandamus declaring the delay of three years, in granting them regular promotions to the post of Deputy Collectors, as arbitrary and illegal; a writ of mandamus commanding the first respondent to grant regular promotion to them in the post of Deputy Collector w.e.f. 01.10.2007 by appropriately modifying the promotion order issued on 07.05.2012; a writ of mandamus commanding the first respondent to delete the condition regarding two years' probation in the promotion order dated 07.05.2012 in view of notional promotion given to the petitioners, which was effective from 08.04.2010, and also in view of Rule 25(5) of the Recruitment Rules which provides for taking officiating/ad-hoc services into account for computing the period of probation; and a writ of mandamus commanding the respondents to grant all service benefits to the petitioners, consequent to the grant of regular promotion as Deputy Collectors, w.e.f. 01.10.2007.

Facts, to the limited extent necessary, are that the petitioners were all permanent Tehsildars during the relevant period 2007-08. On 18.04.2007, the first respondent is said to have obtained approval for holding a regular promotion exercise in the promotees quota of Deputy Collectors. However, consequent on a meeting held by a Committee, consisting of three officers, on 12.09.2007 the names of 10 permanent Tehsildars were recommended for promotion to the post of Deputy Collectors on an ad-hoc basis for a period of one year or till availability of officers from the Public Service Commission appointed through direct recruitment; and the petitioners were promoted as Deputy Collectors on a temporary basis/stop-gap arrangement for a period of one year.

During the period when the petitioners were discharging the functions of Deputy Collectors, albeit on a temporary basis, a regular process of promotion to the post of Deputy Collectors was undertaken by the Uttarakhand Public Service Commission and, on completion of the said process, orders were issued to 15 permanent Tehsildars on 08.04.2010 promoting them as Deputy Collectors. Contending that promotion to the post of Deputy Collectors, from the feeder category of Tehsildars, should have been made solely on the basis of merit and not on the basis of seniority-cum-merit, the petitioners filed Writ Petition (S/B) No. 113 of 2010 and Writ Petition (S/B) No. 101 of 2011 challenging the said selection.

A Division Bench of this Court, in its order in Writ Petition (S/B) No. 113 of 2010 dated 27.04.2011, observed that, in terms of the Rules governing the promotions in question, merit was the only criteria; in order to be promoted, the person was required to be a Tehsildar; although the Rules prescribed that merit is the only criteria for promotion, they did not stipulate how such merit was to be determined; since the Rules required the Public Service Commission to determine merit, the latter had resolved to adopt a particular method for the purpose of determining merit; the resolution of the Uttarakhand Public Service Commission, in fact, provided for the mode of determination of merit, which was that if a candidate secured the minimum merit prescribed, he would be deemed to be eligible to be considered for promotion to higher posts; the Uttarakhand Public Service Commission had deviated from the criteria set down in the said resolution, by applying seniority inter-se those who had obtained the minimum prescribed benchmark; and, as a result, those who were higher in merit lost out to those who were lower in merit on account of seniority. The Writ Petition was allowed and the Uttarakhand Public Service Commission was directed to apply the marks obtained by the petitioners and respondents 3 to 11 therein, and determine the inter-se merit, and give their recommendation for promotion, to those who secured better merit, in a chronological order.

Consequent on the exercise being re-done by the Uttarakhand Public Service Commission, proceedings dated 07.05.2012 were issued promoting the petitioners, with respect to the recruitment year 2007-08, but w.e.f. 08.04.2010 i.e. the date on which the respondents, in Writ Petition (S/B) No. 113 of 2010 and Writ Petition (S/B) No. 101 of 2011, were wrongly promoted as Deputy Collectors. Contending that they were entitled to be given the benefit of continuous officiation from 01.10.2007 onwards, and not from 08.04.2010, the petitioners have invoked the jurisdiction of this Court.

Mr. Subhash Upadhyay and Mr. Alok Mahra, learned counsel for the petitioners, would draw our attention to the note file dated 17.07.2007 which records the then Chief Minister having issued orders for selection of 15 Deputy Collectors by means of promotion, and the Chief Revenue Commissioner being requested to make available the merit list of the permanent Tehsildars with their undisputed certificates; the eligibility list based on the merit list and the description of their Annual Confidential entries for the past 10 years; and the service details and testimonials that no departmental/vigilance enquiries were in progress.

A Departmental Promotion Committee was constituted by the State Government consisting of the Principal Secretary, Revenue and the Chief Revenue Commissioner, the Secretary, Personnel Department and the Secretary, Medical Health and Family Welfare department. This Committee, in its meeting held on 12.09.2007, took note of the fact that there was acute shortage of Provincilaised Civil Service officers in the State which had resulted in great difficulty in the discharge of duties; there was delay in appointment of officers through direct recruitment by the Uttarakhand Public Service Commission; the only option left was to make ad-hoc promotion for the proper discharge of duties; and, accordingly, eligible candidates, in the post of permanent Tehsildars, were being promoted on an ad-hoc basis to the post of Deputy Collectors. The Selection Committee noted that only 10 officers, serving as permanent Tehsildars, were available in the eligibility category and 03 officers had been kept away as they were not permanent in the post of Tehsildar. The said Committee, thereafter, records having perused the Character Records and other relevant documents of the eligible candidates, and to have identified 10 officers as suitable to be appointed on an ad-hoc/temporary basis to the post of Deputy Collectors for the forthcoming one year or till availability of officers, from the Uttarakhand Public Service Commission, appointed through direct recruitment.

Consequent upon the recommendations of the said Departmental Promotion Committee, proceedings dated 01.10.2007 was issued promoting the petitioners on an ad-hoc/temporary basis as Deputy Collectors. It is not in dispute that the petitioners, along with others who were promoted by order dated 01.10.2007, continued to officiate/discharge their duties as ad-hoc/temporary Deputy Collectors till they were promoted through a regular process of selection, on the recommendations of the Public Service Commission, on 07.05.2012. The petitioners' grievance is that, while they were no doubt promoted in the substantive post of Deputy Collectors from 08.04.2010, they ought to have been promoted as such from 01.10.2007 i.e. from the date on which they were in continuous officiation in the post of Deputy Collectors.

Respondents 3 to 6, on the other hand, were selected and appointed as Deputy Collectors, by direct recruitment, by proceedings dated 28.07.2009. The dispute, in the present case, has a bearing on the inter-se seniority dispute between the petitioners on the one hand, and respondents 3 to 6 on the other. If the petitioners are held entitled to have their seniority as Deputy Collectors reckoned only from 07.05.2010, i.e. the date from which the State Government had appointed them in the substantive posts of Deputy Collectors, respondents 3 to 6 would be senior to them in the seniority list of Deputy Collectors. If, on the other hand, the petitioners are held entitled to have their seniority reckoned as regular Deputy Collectors from 01.10.2007, i.e. the date from which they have been in continuous officiation in the post of Deputy Collectors, then it is they and not respondents 3 to 6 who must be ranked higher in the seniority list of Deputy Collectors.

Since the rival claims, of the petitioners on the one hand and respondents 3 to 6 on the other, revolves around the construction to be placed on Rule 24(4) of the Uttaranchal Civil Service (Executive Branch) Rules, 2005 (for short the "2005 Rules") and its proviso, it is necessary to extract the said provision in its entirety. The said provision reads thus :

"24(4). The appointing authority can appoint on temporary or ad-hoc basis from the list prepared under Sub-Rule (1). In case no candidate is available as per the list, then, as per the provisions of the present Rules, the eligible candidates can be appointed in such vacancies. The said appointment can be made for a period of not more than one year or till the selections are made under the present Rules whichever is earlier, and Regulation 5(a) of the Uttaranchal Public Service Commission (Regulation of Function) Regulations, 2003 would apply.

Provided that where a person was promoted and his promotion is subsequently approved by the Commission, the entire continuous officiating service rendered by him on a post within the promotee quota shall be taken into consideration for the purpose of this Rule. If, in any year of recruitment, appointment is made both by direct recruitment and by promotion, names shall be arranged in order of the cycle referred to in Rule 19."

Regulation 5(a) of the Uttaranchal Public Service Commission (Regulation of Function) Regulations, 2003 (for short the "2003 Regulations) stipulates that, in case a person continues in a higher post either in a temporary or officiating basis for a period of more than one year, then approval of the Uttarakhand Public Service Commission shall be obtained. In the present case, admittedly, no such approval of the Uttarakhand Public Service Commission was obtained.

The submission, urged on behalf of the State Government, by Mr. Anil Kumar Bisht, learned Standing Counsel and on behalf of respondents 3 to 6 by Mr. C.K. Sharma, learned counsel, is that, since the requirement of Regulation 5(a) of the 2003 Regulations was not complied with, and approval of the Uttarakhand Public Service Commission was not obtained, the petitioners cannot claim the benefit of continuous officiation in the higher posts of Deputy Collectors in terms of the proviso to Rule 24(4) of the 2005 Rules; even otherwise the petitioners' appointment, on an ad-hoc basis, was on the recommendations of a Committee which is not recognized by any Rules made under the proviso to Article 309 of the Constitution of India; and the petitioners cannot, therefore, be treated as seniors to respondents 3 to 6 in the seniority list of Deputy Collectors.

The State Government cannot be permitted to take advantage of its own wrong in failing to refer the matter to the Uttarakhand Public Service Commission which, in terms of Regulation 5(a) of the 2003 Regulations, it was obligated to do, on the petitioners completing one year of ad-hoc/temporary service as Deputy Collectors. Notwithstanding the fact that the matter was not referred to the Uttarakhand Public Service Commission, the petitioners were continued as Deputy Collectors on a temporary/officiating basis, and continued to discharge the duties attached to the said office till they were regularly promoted as Deputy Collectors by order dated 07.05.2012.

The submission, that the proviso to Rule 24(4) of the 2005 Rules would apply only to cases where a person is regularly promoted by the Public Service Commission, does not merit acceptance for, if a permanent Tehsildar is regularly promoted as a Deputy Collector, then the question of his being entitled to the benefit of continuous officiating service, in terms of the proviso to Rule 24(4) of the 2005 Rules, would not arise. The petitioners were promoted as Deputy Collectors on 07.05.2012 pursuant to the recommendations made by the Uttarakhand Public Service Commission and, ever since 01.10.2007 till they were regularly promoted as Deputy Collectors, they have been in continuous officiation in the post of Deputy Collectors. It is evident, therefore, that, in terms of the proviso to Rule 24(4) of the 2005 Rules, the petitioners are entitled to claim that the period of continuous officiation, as Deputy Collectors, should be treated as service rendered by them in the post of Deputy Collectors.

This very issue was considered in Hansa Datt Pandey and others Vs. State of Uttarakhand and others (order in Writ Petition (S/B) No.187 of 2010 and batch dated 07.09.2011) and a Division Bench of this Court, after referring to the judgments of the Supreme Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra : (1990) 2 SCC 715; L. Chandrakishore Singh v. State of Manipur : (1999) 8 SCC 287; G.P. Doval v. Govt. of U.P. : (1984) 4 SCC 329; and S. Sumnyan v. Limi Niri : (2010) 6 SCC 791, held that, when the Rule authorised the Public Service Commission to approve an earlier irregular promotion, it was an obligation on the part of the State to send the irregular/ad-hoc appointment of the petitioners to the Commission for its approval; and because the State had not done so, it could not take away the rights given to the petitioners by the Rules. The Division Bench allowed the Writ Petitions, and directed the State Government to prepare a final seniority list of Deputy Collectors within six months treating the regular appointments given to the petitioners therein as relating back to the date when they were appointed on an ad-hoc basis.

The petitioners, in the present case, are entitled for a similar benefit in the light of the order of the Division Bench of this Court in Hansa Datt Pandey and others Vs. State of Uttarakhand and others (order in Writ Petition (S/B) No. 187 of 2010 and batch dated 07.09.2011).

Since a dispute has been raised as to whether there existed vacancies in the quota earmarked for promotion as Deputy Collectors, and as the proviso to Rule 24(4) of the 2005 Rules requires officiating service rendered by a person, in a post within the promotion quota, to alone be taken into consideration, it is only if there were sufficient vacancies in the substantive posts of Deputy Collectors, under the promotees quota during the year 2007-08, can the petitioners then claim to be entitled to have their officiating service reckoned as regular service in the post of Deputy Collectors from the date of commencement of their continuous officiation i.e. 01.10.2007.

While several documents are referred to by Mr. Subhash Upadhyay, learned counsel for the petitioners, to contend that there were 15 vacancies in the promotees quota, in the post of Deputy Collectors during the period 2007-08, we are of the view that these aspects are better left for examination of the State Government. Suffice it, in such circumstances, to direct that in case there are sufficient vacancies in the promotees quota to the post of Deputy Collectors, during the year 2007-08, such of those permanent Tehsildars, who were appointed as Deputy Collectors on a temporary/ad-hoc basis, vide proceedings dated 01.10.2007, shall be extended the benefit of their regular appointment w.e.f. 08.04.2010 treated as relating back to the period from 01.10.2007.

The State Government shall also take necessary steps to revise the seniority list of Deputy Collectors in terms of this order. The entire exercise, culminating in orders being issued in the petitioners' favour and the seniority list of Deputy Collectors being revised, shall be completed within four months from the date of production of a certified copy of this order.

The Writ Petition is, accordingly, disposed of. No costs.