NARSING PRASADversusANIL KUMAR JAIN & ORS.

                      [2012] 5 S.C.R. 177


                      NARSING PRASAD                               A
                                v.
                 ANIL KUMAR JAIN & ORS.
               (Civil Appeal No. 3153 of 2012)
                       MARCH 27, 2012
                                                                   B
     [DALVEER BHANDARI AND DIPAK MISRA, JJ.]

     Service Law:

       Uttar Pradesh Avas Evam Vikas Parishad (Appointment         c
 and Conditions of Service of Chief Engineer) Regulations,
  1990 - Regulations 7, 8 and 11 - Post of Chief Engineer -
 Appointment of appellant by the Uttar Pradesh Avas Evam
 Vikas Parishad, to officiate as the Chief Engineer -
 Challenged by respondent, senior most in the feeding cadre 0
 - High Court observing that in the absence of merit selection,
 a senior most person is entitled to hold the charge unless
 there is any legal impediment, held that the respondent was
 entitled to hold the post of Chief Engineer till regular selection
 - On appeal, held: On a perusal of the order passed by the E
 High Court, it is not clear that the finding of the selection
 committee was brought to the notice of the High Court - Order
 of the Chairman of the Uttar Pradesh A vas Evam Vikas
 Parishad, was brought before this Court for the first time - As
per Regulation 7, the Selection committee is required to be
constituted by the Board - However, in the instant case, the F
decision to appoint the appellant was taken by the Chairman
- Supreme Court has passed an order of status quo relating
to promotional posts in certain civil appeals which is still in
force - Thus, a regular promotion cannot take place and, the
direction of the High Court to hold regular selection within two G
months is untenable - Considering the sensitive nature of the
post and the duties to be performed by the incumbent,
selection committee directed to be constituted by the Board
to consider the suitability of all the eligible candidates for the
                               177                                  H
    178       SUPREME COURT REPORTS           [2012] 5 S.C.R.


A purpose of holding the post of the Chief Engineer - Till then
    appellant to continue holding charge - Order passed by the
    High Court set aside.

        The Uttar Pradesh Avas Evam Vikas Parishad passed
B an order that the appellant, a Superintending Engineer, would
  hold the post of Chief Engineer on officiating basis till the
  regular selection was made. Respondent challenged the
  appointment before the High Court on the ground that he was
  senior in the cadre of the Superintending Engineer and thus,
  the charge should be given to him. The High Court quashed
C the order passed by the Parishad. Therefore, the appellant
  filed the instant appeal.

          Partly allowing the appeal, the Court

0     HELD: 1.1 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-Chairmar: of
E the Uttar Pradesh Avas Evam Vikas Parishad, was
  brought before this Court. Regulation 8 of the Uttar
  Pradesh Avas Evam Vikas Parishad (Appointment and
  Conditions of Service of Chief Engineer) Regulations,
  1990 lays down the procedure for selection for
F 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 was taken by the Chairman but not by the
  Board. The High Court directed that if any officiating
G appointment is to be made, the case of the first
  respondent should be first considered and he should 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. [Para 7] [182-E-H]
H
  NARSING PRASAD v. ANIL KUMAR JAIN & ORS.                  179


     1.2 This Court had passed an order of status quo              A
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           B
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, it is appropriate to direct
that the selection committee be constituted by the Board           c
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 made clear that the decision in favour of
any candidate to hold the additional charge would not              D
enure to his benefit and no claim can be put forth on the
said basis at the time of consideration for regular
promotion. When the High Court passed the order, the
present appellant was holding the charge. This Court, on
24.11.2011, while issuing notice, directed status quo as
of that day to be maintained by the parties. Keeping in            E
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
should remain in force. The order of the High Court is set
aside. [Paras 8, 9 and 1 O] [183-A-F]                              F

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3153 of 2012.
     From the Judgment & Order dated 21.10.2011 of the High
Court of Allahabad, Lucknow Bench in Writ Petition No. 1793        G
(S.B.) of 2011.

     Mukul Rohtagi, Arun Bhardwaj, Rameshwar Prasad Goyal,
Praveen Chauhan, Amol Sinha, Vijay Kumar, Anshum Jain for
the Appellant.                                                     H
    180       SUPREME COURT REPORTS               [2012] 5 S.C.R.


A         Dinesh Kumar Garg, Vishwajit Singh, Abhindra
      Maheshwari, Pankaj Kumar Singh, Ritesh Agrawal for the
    · Respondent.

          The Judgment of the Court was delivered by
B         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
c   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
0   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
E   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
F   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
G   any other disqualification, and that when there was no
    disqualification as far as h.e 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
H   Parishad urged that while appointing the appellant herein by
                                                                  .
   NARSING PRASAD v. ANIL KUMAR JAIN & ORS.                   181
               [DIPAK MISRA, J.]
the Uttar Pradesh Avas Evam Vikas Prishad (Appointment and           A
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     B
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          c
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        D
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     E
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          F
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         G
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 H
    182      SUPREME COURT REPORTS                [2012] 5 S.C.R.


A 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
B 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
c 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
0
  relianc~ 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
E 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
F 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.
G 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.
H
   NARSING PRASAD v. ANIL KUMAR JAIN & ORS.                    183
               [DIPAK MISRA, J.]
       8. This Court had passed an order of status quo relating       A
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              s
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       c
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
                                                                      0
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.
                                                                      E
       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.
                                                                      F
       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.

N.J.                                     Appeal partly allowed.