Narsing Prasad Vs
Anil Kumar Jain & Ors.
[Civil Appeal No.
3153 of 2012 arising out of SLP (C) No. 31935 of 2011]
J U D G M E N T
Dipak Misra, J
1.
Leave
granted.
2.
The
present appeal by way of special leave under Article 136 of the Constitution of
India is directed against the Judgment and Order dated 21.10.2011 passed by the
High Court of Judicature at Allahabad Bench at Lucknow in Writ - Petition No.
1793 (SB) of 2011 whereby the Division Bench of the High Court quashed the
Order dated 30.09.2011 of the Uttar Pradesh Avas Evam Vikas Parishad (for
short, 'the Parishad') whereby it had decided that the present appellant, a
Superintending Engineer, shall hold the post of Chief Engineer on officiating
basis till the regular selection was made.
3.
The
factual expose', as has been unfurled, is that the post of Chief Engineer fell
vacant and the Parishad, after deliberation, appointed the appellant to officiate
as the Chief Engineer. The respondent, Anil Kumar Jain, invoked the
extraordinary jurisdiction of the High Court challenging the said appointment
on many a ground.
It was contended
before the High Court that he was senior in the cadre of the Superintending
Engineer and, therefore, the charge should have been given to him and not to a
junior person; that he had an excellent service record and there was no reason
to supersede him and compel a senior officer to work under a junior; that in
the absence of merit selection or regular selection being made, a senior most
person was to be given - charge unless he had any other disqualification, and
that when there was no disqualification as far as he was concerned, it was obligatory
on the part of the Parishad to appoint him to function on officiating basis on
higher post.
In oppugnation to the
stand put forth by the first respondent, the appellant as well as the Parishad urged
that while appointing the appellant herein by the Uttar Pradesh Avas Evam Vikas
Prishad (Appointment and Conditions of Service of Chief Engineer) Regulations,
1990 (for short, "the Regulations"), especially Regulations 8 and 11
were kept in view; that the respondent in the Writ Petition was found more
suitable to function on the higher post on officiating basis; that in the
Parishad, most of the work is of civil nature and as the Writ Petitioner
belongs to electrical cadre and not to the civil cadre the present appellant who
has excellent track record in the civil cadre was selected to hold the post on officiating
basis; and that even for a stop-gap arrangement, the merit for such a higher
post is to be considered and that having been done, the action of the Parishad
could not be flawed.
4.
The
High Court took note of the rival submissions and opined that at no point of
time, the criteria of merit had been considered before passing the Order; that
in the absence of merit selection, a senior most person is entitled to hold the
charge unless there is any legal impediment; that if the relevant regulations are
properly understood, the Writ Petitioner would be eligible to be considered for
the post of the Chief Engineer as no distinction can be made between the
electrical and civil cadre; and that the Writ Petitioner was not ousted from
the zone of consideration as has been admitted by the Parishad.
Being of this view,
the High Court axed the Order passed by the Parishad and directed that in case
any officiating arrangement is to be made, the Writ Petitioner's case shall be
first considered and he shall be given the charge unless there is any legal
impediment till the regular selection is made. The High Court further directed that
the selection shall be made within a maximum period of two months.
5.
We
have heard the learned counsel for the parties and perused the record. -
6.
The
central issue that arises for consideration is whether the High Court is justified
in expressing the view that the first respondent was entitled to hold the post of
Chief Engineer till regular selection was made on the ground that he was the senior
most in the feeding cadre. Mr. Rohtagi, learned senior counsel, contended that
regard being had to the sensitive nature of the post, the selection procedure
was undertaken and, thereafter, the petitioner was found suitable to hold the
post. He has commended us to Regulation 11 of the Regulations to highlight that
even for officiating purpose the selection procedure is to be adopted. He has
invited our attention to the findings of the competent authority dated 30.09.2009
to substantiate the stand that there has been a selection.
Per contra, Mr. Garg,
learned counsel for the respondent, would contend that Regulation 11 would not
be attracted as additional charge given for higher post was given to the respondent.
That apart, the learned counsel would urge that the factum of any kind of procedure
being taken recourse to by the selection committee was not brought to the notice
of the High Court and in any event, the findings of the competent - authority
on which reliance has been placed do not really reflect that the appropriate
committee has taken the decision.
7.
On
a perusal of the Order passed by the High Court, it is not clear that the
finding of the selection committee was brought to the notice of the High Court.
For the first time, a document contained in Annexure P-6 showing the order of the
respondent No. 2 has been brought before this Court. The respondent No. 2 is the
Chairman of the Uttar Pradesh Avas Evam Vikas Parishad. Regulation 8 of the Regulations
lays down the procedure for selection for promotion. Regulation 11 stipulates
for preparation of list by the selection committee.
The selection
committee is required to be constituted by the Board as per Regulation 7. On a perusal
of Annexure A-6, it appears that the decision is taken by the Chairman but not by
the Board. The High Court had directed that if any officiating appointment is
to be made, the case of the first respondent shall be first considered and he
shall be given the charge unless there is any legal impediment. There is
further - direction to hold a regular selection within a maximum period of 2 months.
8.
This
Court had passed an order of status quo relating to promotional posts in
certain civil appeals and the said order is still in force. Thus, a regular
promotion cannot take place and, therefore, the direction of the High Court in that
regard is untenable. However, as in the interest of the administration, someone
has to remain in charge, the employer, i.e., the Parishad can choose someone to
hold the officiating charge.
Regard being had to the
sensitive nature of the post and the duties to be performed by the incumbent,
we think it appropriate to direct that the selection committee be constituted
by the Board within a period of four weeks which shall consider the suitability
of all the eligible candidates for the purpose of holding the additional charge
of the post of the Chief Engineer.
It is hereby made
clear that the decision in favour of any candidate to hold the additional
charge would not enure to his benefit and no claim can be put forth on the said
base at the time of consideration for regular promotion. Be it noted, before
the High Court passed the order, the present appellant was holding the charge. This
Court, on 24.11.2011, while issuing notice, had directed status quo as of that day
to be maintained by the parties.
9.
Keeping
in view the totality of circumstances, it is directed that till the Board takes
a decision after getting the report of the selection committee, the interim order
passed in this case shall remain in force. 10. In the result, the appeal is
allowed to the extent indicated hereinabove and the order of the High Court is
set aside leaving the parties to bear their respective costs.
.....................................J.
[Dalveer Bhandari]
.....................................J.
[Dipak Misra]
New
Delhi;
March
27, 2012.
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