Holding

The ad‑hoc appointment was illegal, the promotion violated the 1992 Rules and the 1994 Act, and therefore the promotion order is void and the appeal is allowed.

Summary

The appellant R.S. Garg challenged the promotion of a Scheduled Caste employee (the 3rd respondent) to Deputy Director of Factories (Administration) in Uttar Pradesh. The employee had been appointed on an ad‑hoc basis in violation of the Uttar Pradesh Labour Department (Factories and Boilers Division) Officers Service (Second Amendment) Rules, 1992, and was later regularised without the required selection by the Public Service Commission. The Court held that such an ad‑hoc appointment was void ab initio, that the employee did not satisfy the five‑year substantive service requirement for promotion, and that the conversion of the post and the relaxation granted under the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 were illegal and mala fide. Consequently, the promotion order was set aside and the appeal was allowed, with costs awarded against the State and the respondent.

Issues considered

Whether an ad‑hoc appointment made in violation of Rule 5(iii) of the 1992 Rules is void and cannot be regularised.
Whether the conversion of the Deputy Director (Chemical) post to Deputy Director (Administration) and the subsequent promotion complied with the service rules.
Whether the respondent satisfied the five‑year substantive service requirement for promotion under Rule 5(iii).
Whether relaxation in qualifying service could be granted under the 1994 Reservation Act for promotion.
Whether the reservation roster exceeding the 21% ceiling prescribed by the 1994 Act is valid.
Whether the Supreme Court may exercise its discretionary jurisdiction under Article 136 in this circumstance.

Legislation cited

Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994s. Section 3, s. Section 8

Subjects

service lawregularisationad hoc appointmentpromotionreservationmalice in lawArticle 136Uttar Pradesh Public Services Actseniorityequality clauseArticle 14Article 16

Judgment

R.S. GARG
•
A
v.
STATE OF U.P. AND ORS.

JULY 27, 2006

B [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

Service law-Regularisation-Ad hoc e111ployee appointed in violation
of the Service rules does not hold any post-Such appointment is void ab
C initio and cannot be regularized

Service Law---Promotion--Service Rules provided that the candidate for
promotion 11111st have been appointed substantively-3rd Respondent was
appointed on ad hoc basis de'hors the Rules--£i:perience gained by him
while acting in ad hoc capacity would not subserve the requirement of
D promotion under the Rules-UP. Labour Department (Factories and Boilers
Division) Officers Sen-'ice (Second Amendment) Rules, 1992--Rule 5(iii).

Service Law-.Promotion·--Promotional post converted with a view to
provide promotional avenues for Scheduled Caste candidates-Relaxation
accorded in qualifoing service for the post so converted and 3rd Respondent,
E a Scheduled Caste candidate promoted-Promotion challenged-On facts, held:
Promotion was granted in undue haste-Documentary evidence showed that
concerned authorities had 111ade up their mind to promote 3rd Respondent
from the very beginning-Such action s111acked of mala fide--Besides case of
3rd respondent was considered alone although 2 other candidates fulfilled the
F same criteria-Even no seniority list was prepared at the time of constitution
of the Departmental Promotion Commillee-Entire approach ofthe authorities
was on~v for achieving a private interest--/n that sense, the a..:tion suffered
from the vice of malice in law-Administrative Law-Natural Justice-Malice
in law.

G Service Law-Promotion-Gross illegalities commilled by the State in
granting promotion to 3rd Re~pondent thereby causing deprivation of legitimate
right of promotion of 111ore meritorious and senior candidates -In the
circumstances, fact that 3rd Respondent is working for about 9 years on the

120
H
R.S. GARG v. STATE OF U.P. 121
promotional post or that he would retire ajier one year whol~v immaterial- A
Challenge against the order of promotion upheld-Directions passed by
Supreme Court in exercise of its discretionGIJ' jurisdiction under Article 136
of the Constitution-Constitution of India, 1950-Artic/e 136.

Service Law-Reservation-Roster prepared to fill up posts by reserved
categ01:V candidates-Jn terms of the 1994 Act, reservation was to be confined B
to 2 J'Yrr-Conflict between the percentage of reservation and the roster-Held:
Jn that event, the former shall prevail-Uttar Pradesh Public Services
(Reservation for Scheduled Castes, Scheduled Tribes and Other Backward
Classes) Act, 1994-Section 3.

3rd Respondent, who belonged to the Scheduled Caste, was appointed
c
as Assistant Director of Factories in the State of U.P. on ad-hoc basis in
1987. In 1995, the appointment wa~.regularized. Subsequently, in 1997,
the post of Deputy Director of Factories (Chemical) was converted to the
post of Deputy Director of Factories (Administration) with a view to
provide promotional avenues for Scheduled Caste candidates. On the D
ground that under the provisions of the Uttar Pradesh !'ublic Services
(Reservation for Scheduled Castes, Scheduled Tribes and Other Backward
Classes) Act, 1994, relaxation could be given to fulfil reservation quota,
relaxation was given in qualifying service for the aforesaid post so
converted and 3rd Respondent was promoted as Deputy Director of E
Factories (Administration). Appellant, a colleague of 3rd Respondent, filed
writ petition questioning the order of promotion passed in favour of
Respondent No.3. High Court dismissed the petition. Hence the present
appeal.

In appeal before this Court it was contended (i) that the purported F
conversion of the post of Deputy Director of Factories (Chemical) to
Deputy Director of Factories (Admn.) was contrary to the Uttar Pradesh
Labour Department (Factories and Boilers Division) Officers Service
(Second Amendment) Rules, 1992 and it having been done with a view to
favour the 3rd respondent, was illegal; ii) that the 3rd respondent was not G
eligible to be promoted, as he did not complete 5 years' substantive service
4
,• on the date of selection in terms of Rule S(iii) of the 1992 Rules and iii)
that the order of promotion passed in his favour was malafide. It was
contended that the promotion of 3rd Respondent was also illegal and
unjust since by reason thereof the percentage of reservation in promotion
H
122 Sl!PREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A was raised to 33%1, though in terms of the 1994 Act, the reservation was ...
to be confined to 21 %.

Allowing the appeal, the Court

HELO: I. I. Rule 5(iii) of the 1992 Rules requires that on the date of
B selection, the candidate should have been substantively appointed as
Assistant Director of Factories and does not speak of experience in the
service alone. The said Rule read in its entirety would mean that the
candidate for promotion must be appointed substantively and when so
appointed, he has to put in at least five years service as such.
C [134-0-E; 135-El
1.2. An ad hoc employee who has been appointed in violation of the
service rules did not hold any post. His experience in the post would mean
experience gathered by him after his appointment in the substantive
capacity. It is trite law that for the purpose of reckoning seniority the ad
D hoc ser.•ices would be taken into consideration only if prior to the
appointment of the employee the authorities had complied with the
statutory requirements of selecting the candidate. At the relevant point
of time, the rule provided for selection through Public Service Commission.
The same having not been done, the appointment of the 3rd resporident
E was void vb initio. The question of regularization of his services, therefore,
did not arise. [134-E-G[

I.3. The 3rd r~spondent, from 1984 to 1995, did not hold even any
temporary or any officiating post. He was substantively appointed only
in 1995, prior whereto he was not holding any post. The view of the High
F Court, that the experience gained by the 3rd respondent while acting in
ad hoc capacity would subserve the requirements of Rule 5(iii) of the 1992
Rules, cannot be accepted. [135-C-G[

1.4. Absence of experience in substantive capacity is not a mere
G irregularity in this case. It would not be a mere irregularity, when a person
not eligible therefor would be considered for promotion. It may be that
for the purpose of direct appointment, experience and academic
11ualifications are treated to be at par, but when an eligibility rriteria has
been provided in the Rules for the purpose of promoting to a higher post,
the same must strictly be complied with. Any deviation or departure •
H therefrom would render the action void. [135-F-G[
R.S.GARGv. STATEOFU.P. 123

State of Madhya Pradesh and Anr. v. lai;mishankar Mishra, AIR (1979) A
SC 979 and Ram Sarup v. State of Haryana and Ors., AIR (1978) SC 1536,
distinguished.

Secretary, State of Karnataka & Ors. v. Umadevi & Ors., (2006) 4
SCALE 197; Union Public Service Commission v. Girish Jayanti Lal Vaghela
& Ors., (2006) 2 SCALE 115; Suraj Parkash Gupta & Ors. v. State of J &K B
& Ors., (20001 7 SCC 561; Umarani v. Registrar. Cooperative Societies &
Ors., (2004J 7 SCC 112 and National Fertilizers Ltd. & Ors. v. Somvir Singh,
[20061 5 sec 493, referred to.

2. 1. Apart from the fact that the concerned authorities had made C
up their minds to promote the 3rd respondent from the very beginning,
as an approval therefor appears to have been obtained from the Chief
Minister only on 20.4.1997; the post was in fact created on the next date,
i.e., on 21.4.1997 and the order of promotion was issued on 24.4.1997,
although, decision thereupon, as would be evident from the note-sheet, had
been taken on 15.4.1997 itself. Such an action in undue haste on the part D
of the respondents smacks of ma/a fide. 1139-C-DI

2.2. Furthermore, for the purpose of promotion to the post in
question, cases of at least 5 candidates were required to be considered.
The case of 3rd respondent was considered alone, although, there had been E
2 other candidates, who fulfilled the same criteria. Even no seniority list
was prepared at the time of constitution of the Departmental Promotion
Committee. (139-E(

2.3. The idea of conversion of the promotional post should have been
mooted keeping public interest in view and not the interest of an individual. F
The entire approach of the authorities of the State of U.P was only for
achieving a private interest and not the public interest. It was in that sense,
the action suffered from the vice of malice in law. It has not been disputed
that there were other employees also who belonged to scheduled caste and
were senior to the 3rd respondent. (140-B-Cf
G
Smt. S.R. Venkataraman v. Union of India & Anr., 11979( 2 SCC 491;
State of A.P. v. Goverdhan/al Pitti, (2003( 4 SCC 739; Chairman & MD.,
BPL Ltd. v. SP. Gururaja, [2003( 8 SCC 567 and Punjab SEB Ltd. v. Zora
Singh, (20051 6 SCC 776, referred to.
H
124 SUPREME COURT REPORTS [2006J SUPP. 4 S.C.R.

A Shearer and Anr. v. Shields, (1914) AC 808, referred to.
.'
3.1. Also no relaxation could be granted for promotion ir•. terms of
1994 Act. Five years' experience from the date of substantive requirement,
being an essential qualification, no relaxation could have been given in
that regard to the 3rd respondent. The 1994 Act was not enacted for
B meeting such a contingency. In that view of the matter both the Chief
Minister as well as the Principal Secretary did not possess any authority
to make any relaxation and in that view of the matter they must be held
to have misdirected themselves in law necessitating interference by the
superior courts by way of judicial review. When such an illegality is
C committed, the superior court cannot shut its eyes. It is one thing to say
that conversion of on~ post to another may be done in accordance with
law having regard to the public purpose in mind but a statutory power, it
is well-settled, cannot be exercised so as to promote a private purpose.
1140-C-EI

D 3.2. In terms of the 1994 Acf, the reservation was to be confined to
21 %•. There were 6 posts. If the roster was to be followed, 2 posts would
be reserved for the Scheduled Caste candidates, which is impermissible.
In the event of any conflict between the percentage of reservation and the
roster, the former shall prevail. Thus, in the peculiar facts and
E circumstances of this case, the roster to fill up the posts by reserved
category candidates, after every four posts, does not meet the constitutional
requirements. (140-H; 141-A; 142-FI

Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New
Delhi & Ors., AIR (1978) SC 851; Commissioner of Police· v. Gordhandas
F Bhanji, AIR (1952) SC 16; Hindustan Petroleum Corpn. Ltd. v. Darius Shapur
Chenai, 120051 7 SCC 627; Kesvananda Bharati v. State of Kera/a, 119731 4
SCC 225; Waman Rao v. Union of India, JI 981 I 2 SCC 362; Maharao Saheb
Shri Bhim Singhji, etc. v. Union of India & Ors., AIR (1981) SC 234; !vfinen1a
Mi/1.1 Lid. & Ors. v. Union of India & Ors .. 119801 3 SCC 625; T.M.A. Pai
G Foundation v. State of Karnataka, 120021 8 SCC 481; Islamic Academy of
Education v. State of Karnataka, 120031 6 SCC 697; P.A. !namdar v. State
of Maharashtra, 120051 6 SCC 537; Indra Sawhney v. Union of India, 119921
Supp. 2 SCR 454; Ashoka Kumar Thakur v. State of Bihar & Ors., f 19951 5
SCC 403 and Indra Sawhney v. Union of India, 11999( Supp. 5 SCR 229,
referred to.
H
R.S. GARG v. STATEOFU.P. 125
'j
4.1. The order of promotion was issued on 25.4.1997. The writ A
petition was filed within a few days thereof, i.e., on 2.5.1997. As the 3rd
respondent had joined the post, no stay had been granted by the High
Court. He might have been working for about 9 years, but he was holding
the post during the pendency of the writ petition. The fact that the 3rd
respondent would retire in May, 2007 is again wholly immaterial. It is of B
not much relevance. 1142-H; 143-A-BI

4.2. It is also not correct to contend that the selection was on merit
basis. If the post was not reserved, in no way the 3rd respondent could
have been promoted. He might not have come within the purview of zone
of consideration. This case points out how the illegalities are committed C
by the State causing deprivation of legitimate right of promotion of more
meritorious and senior candidates. 1143-Cj

4.3. It is not a case, where this Court should refrain itself from
exercising its discretionary jurisdiction under Article 136 of the
Constitution. The respondents shall bear the costs of the appellant D
throughout. Such costs would be borne by the State as also the 3rd
respondent equally, which is assessed at Rs.50,000/-. 1143-DI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2903 of2001.

From the Judgment and Order and dated 22.5.2000 of the High Court
E
of Allahabad Lucknow Bench, Lucknow in Writ Petition No. 377 (SB)/! 997.

Raju Ramachandran, S. Muralidhar and Amit Sham1a for the Appellant.

Dinesh Dwivedi, Prashant Kumar, Rohan Thawani, Pramood Swarup p
and Pradeep Misra for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. This appeal is directed against a judgment and order
dated 22.5.2000 passed by the High Court of Judicature at Allahabad in Writ G
Petition No.377(SB)/97, whereby and whereunder the writ petition filed by
the appellant herein questioning an order of promotion dated 24.5.1997 passed
in favour of respondent No.3 herein was dismissed.

Both the appellants and the said 3rd respondent were appointed on an
H
126 SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A ad hoc basis to the post of Inspector, re-designated as Assistant Director of
Factories, on or about 3.1.1972 and 17.1.1987 respectively. Whereas the
appointment of the appellant hen:in was in terms of Uttar Pradesh Labour
Department (Factories and Boilers Division) Officers Service (Second
Amendment) Rules, 1992('1992 Rules', for short) indicating selection through
B Public Service Commission; the 3rd respondent was appointed purely on ad
hoc basis till the selection of a regular candidate by the Public Service
Commission and joining the post or till such time his services were required
by the department. The appellant was confirmed in his post on 13.5.1978,
whereas the 3rd respondent purported to have been appointed on a regular
basis without undergoing the requisite selection process as provided for in
C the 1992 RLles and without being recommended therefor by the Public Service
Commission. The State of U.P., by an order dated 15.11.1995 appoin~ed the
3rd respondent as Assistant Director Factories on regular basis with effect
from the date of issuance of the order providing that he would be on probation
for a period of two years. Indisputably, there were six posts of Deputy Director
D of Factories in the State of U.P., out of which four posts were designated as
Deputy Director of Factories (Administration). one as Deputy Director of
Factories (Chemical) and one as Deputy Director of Factories (Engineering).
The post of Assistant Director of Factories was the feeder post. As noticed
herein before, both the posts of Assistant Director of Factories, formerly known
as Inspector of Factories, and Deputy Director of Factories (Admn.) were to
E be filled up through the Public Service Commission. It is furthermore not in
dispute that the educational qualification required for appointment to the post
of Deputy Director (Chemical), vis-a-vis, Deputy Director of Factories (Admn.)
and Deputy Director of Factories (Engineering) are different. It is also not in
dispute that out of the four posts of Deputy Director of Factories (Admn.)
f one is to be filled up by an officer belonging to reserved category.

The wife of the 3rd respondent, Smt. Prem Lata, made a representation
to the Chief Minister of the State of U.P. that her husband, who belonged to
Scheduled Caste, was victimized and was not being promoted to the post of
Deputy Director of Factories, whereupon instructions were issued to the
G Principal Secretary, Labour, to intimate to her as to why the promotion of 3rd
respondent was being delayed. A proposal was made for converting the said
post of Deputy Di~ector of Factories (Chemical) to the post of Deputy Director
of Factories (Admn.) upon obtaining sanction from the Chief Minister,
although, the concurrence of the Finance Department was not obtained therefor.
H A note-sheet to the aforementioned effect on 15.4.1997 was drawn which is
R.S. GARG v. STATE OF U.P. [SINHA, .I.] 127
to the following effect: A
"The post of Deputy Director Factories (Chemical) in Labour
Commissioner organisation is proposed to be converted/created as
deputy director, Factories (Administration). Finance Department did
not approve the proposal. This conversion will not entail any financial
loss and it would provide promotional avenues for candidates of B
scheduled castes. Since Finance Department is also with the Chief
Minister, therefore, Chief Minister may give approval on this proposal.

2- For the aforesaid post so converted, the candidates available for
promotion are not completing qualifying senice of five years. Sri C
Bharti has been in service since 1987-88 with interruption and since
1989 without interruption and upto 1995 on adhoc basis and in regular
service since 15.11.95. According to the provisions of U.P. Reservation
Act 1994 relaxation may be given to fulfil reservation quota. Therefore,
1t is proposed to give relaxation in qualifying service for this aforesaid
post. Personnel Department is under Hon'ble C.M. Therefore it is D
requested that he may approve the proposal to give relaxation."

3- Para I and 2 for approval please.

sd/-
15.04.97 E
Chandra Pal
seal
Principal Secretary
Labour Department
U.P. Shasan." F
The said note-sheet was placed before the then Chief Minister, State of
U.P. on 20.4.1997 and was approved on 21.4.1997. The Principal Secretary
issued a letter to the Labour Commissioner, U.P. that the Governor, after due
consideration, directed conversion of one temporary post of Deputy Director
of Factories (Chemical) into the post of Deputy Director of Factories (Admn.). G
It was stated:

"In pursuance of the above order the necessary amendment in the
UP Factories in Boilers Service Rules 1980 shall be issued later on."

The 3rd respondent, pursuant to the purported conversion of the said H
128 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A post, was promoted as Deputy Director of Factories (Administration). The
appellant herein filed a writ petition questioning the same before the Lucknow
Bench of the High Court of Judicature at Allahabad praying for the following
reliefs:

"(i) to issue a writ. order or direction in the nature of cerliorari
B quashing the impugned order dated 25th April, 1997 promoting the
Respondent No.3 on the post of Deputy Director of Factories
(Administration) as contained in Annexure No. I to this writ petition;

(ii) to issue a writ, order or direction in the nature of cerliorari
C quashing the order dated 15th November, 1995 by which the
Respondent No.3 was appointed on the post of Assistant Director of
Factories on regular basis, as contained in Annexure No.5 to this writ
petition;

(iii) to issue a writ. order or direction in the nature of quo-warranto
D requiring the respondent No.3 to show cause as to how he is holding
the post of Deputy Director of Factories (Administration);

(iv) to issue a writ, order or direction in the nature of Mandamus
commanding the respondents to consider the petitioner for promotion
on the post of Deputy Director of Factories (Administration);
E
(v) to issue any other writ, order or direction which this Hon'ble
Court may deem just and proper in the circumstances of the case;

(vi) to allow this writ petition with all costs in favour of the petitioner."

F The said writ petition had been dismissed by the impugned judgment.
The contentions raised before the High Court as also before us, on behalf of
the appellant are:

(i) The 3rd respondent was illegally appointed as Assistant Director of
G Factories as his services were regularized without referring the matter to the
Public Service Commission as was required by Rule 5(iii) of the 1992 Rules;

(ii) The order of promotion passed in favour of the 3rd respondent was
ma/a fide;

II (iii) The purported conversion of the post of Deputy Director of Factories
R.S. GARG v. STATE OF U.P. [SINHA . .I.] 129

-- (Chemical) to Deputy Director of Factories (Admn.) being contrary to the
1992 Rules and having been done with a view to favour the 3rd respondent,
A

was illegal;

(iv) The 3rd respondent was not eligible to be promoted, as he did not
complete 5 years' substantive service on the date of selection, i.e., in the year
1997 in terms of Rule 5(iii); B

(v) Reservation to the post in favour of a Scheduled Castes was illegal
and unjust by reason thereof the percentage of reservation in promotion
would be raised from 21 % to 33%.

(vi) The post of Deputy Director of Factories (Administration) has
c
already been occupied by a candidate belonging to the reserved category,
namely Shri Ghanshyam Singh.

On the other hand, the contentions raised on behalf of the 3rd respondent
herein are : D
(i) The appointment and regularization of 3rd respondent had never
been challenged by the appellant nor any relief was sought for in that behalf
in the writ petition and, thus, the same should not be allowed to be raised
before this Court. In any event, the same could not have been challenged
collaterally after IO years' of initial appointment and 2 years after the E
regularization of the services of the said respondent;

(ii) The appellant should have impleaded the Chief Minister and Principal
Secretary in their personal capacities as allegation of favoritism was made
against them. In any event, the appointment h;:ving been made by the State F
ofU.P. in terms of 1992 Rules of business upon selection by the Departmental
Promotion Committee; the order of promotion was valid in law;

(iii) Appointment of the 3rd respondent was made bona fide;

(iv) No relief having been sought for questioning conversion of the G
post in the writ petition, no grievance in that behalf can be permitted to be
raised herein. Furthermore, the appellant himself having claimed for promotion
to the said post, he cannot be permitted to approbate and reprobate;

(v) Rule 5(iii) should be construed in a reasonable manner and read
H
130 SUPREME COURT REPORTS [2006[ SUPP. 4 S.C.R.

A fairly. If a broad meaning thereto is given, the same would imply experience
of 5 years in the post and not 5 years' experience after having substantively
appointed on the post of Assistant Director and so construed, the High Court
must be held to have rightly opined that there had been no violation of Rule
5(iii) of the said 1992 Rules;

B (vi) Reservation having been provided in terms of the Government
orders issued from time to time, the issue of reservation exceeding 21 % of
posts in the cadre does not arise and there had, thus, been no breach of
Articles 14 and 16 of the Constitution;
...
C (vii) In any event, it is not a fit case where this Court should exercise
its discretionary jurisdiction under Article 136 of the Constitution of India in
view of the fact that the 3rd respondent had been working in the promoted
post for about 9 years and he is to retire in May, 2007.

The State of Uttar Pradesh, in exercise of its powers conferred by the
D Proviso to Article 309 of the Constitution of India enacted the Uttar Pradesh
Inspector of Boilers and Factories Service Rules, 1980 (" 1980 Rules', for
short). Direct recruitment has been defined in Rule 2(g) to mean recruitment
otherwise than by promotion, transfer or deputation. Rule 4 provides for
strength of service of each category of posts envisaged therein, meaning such
E categories as may be determined by the Governor from time to time. Sub-
Rule (2) of Rule 4 provides that the strength of service was to be as specified
until orders varying the same have been passed under Sub-Rule (I) as specified
in Appendix 'A' thereto. Rule 5 of the 1980 Rules provides for source of
recruitment; clause (iii) thereof refers to the post of Deputy Chief Inspector
of Factories (Administration), which is in the following terms:
F
"By promotion, on the basis of seniority subject to the rejection
of unfit, through the Commission from amongst the permanent
Inspectors of Factories, who have put in at least five years of
continuous service including temporary and officiating service."
G Rule 6 speaks of reservation stating that the same shall be in accordance
wirh the orders of the Government in force at the time of recruitment. Rule
9 provides for academic qualifications and experience, which the candidate
for direct recruitment is required to possess, and as specified in Appendix 'B'
to the 1980 Rules. Rule 15 provides for procedure for recruitment, whereas
H Rule 16 provides for recruitment by promotion, which is in the following
R.S. GARG v. STATEOFU.P. [SINHA, J.] 131

terms: A
"16. Procedure for recruitment by promotion-Recruitment by
promotion to various categories of posts in the service shall be made
in accordance with the general rules made by the Governor laying
down the procedure for promotion in consultation with the
Commission. The criteria for promotion shall be as indicated against B
each in rule 5 to these rules.

Note-The rules laying down the procedure in force at the
commencement of these rules are "Uttar Pradesh Promotees by
Selection in Consultation with Public Service Commission (Procedure) C
Rules, 1970" as amended from time to time."

In terms of Rule 22, separate seniority lists are to be maintained for
each category of posts in the service.

Rule 28 speaks of relaxation, which is in the following terms: D
"28. Relaxation ji"om other conditions of service.-Where the
Governor is satisfied that the operation of any rule regulating the
conditions of service of the members of the service causes undue
hardship in any particular case, he may, in consultation with the
commission where necessary, notwithstanding anything contained in E
the rules applicable to the case, by order, dispense with or relax the
requirements of that rule to such extent and subject to such conditions
as he may consider necessary for dealing with the case in a just and
equitable manner."

The matter relating to reservation is governed by The Uttar Pradesh
F
Public services (Reservation for Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, I 994 ('the Act', for short). Section 3 thereof
provides for reservation for direct recruitment in terms whereof 21 % of the
posts is reserved for Scheduled Caste candidates. By a Government order
dated IO. I 0.1994, reservation to the same extent was permitted. However, G
the roster in regard thereto was prepared stating that the I st post and the 6th
post shall be reserved for the scheduled caste candidate. The seniority list
was published on I 5.1 I .1995 wherein the name of the 3rd respondent was

- shown at serial number 6. It is not in dispute that the name of the appellant
figured at serial number 6 in the seniority list published on 28.4.1989. At that H
132 SUPREME COURT REPORTS [2006J SUPP. 4 S C.R.

A point of time, the 3rd respondent was out of reckoning. The appointment of
the 3rd respondent was on an ad hoc basis. It is not in dispute that while
making such appointment the provisions of the 1992 Rules have not been
complied with. His services were sought to be regularized only in the year
1995.

B Section 8 of the Act reads thus:

"8. (I) The State Government may, in favour of the categories of
persons mentioned in sub-section ( 1) of section 3, by order, grant
such concessions in respect of fees for any competitive examination
C or interview and relaxation in upper age limit, as it may consider
necessary.

(2) The Government orders in force on the date of the
commencement of th is Act, in respect of concessions and relaxations,
including concession in fees for any competitive examination or
D interview and relaxation in upper age limit and those relating to
reservation in direct recruitment and promotion, in favour of categories
of persons referred to in sub-section ( 1), which are not in consistent
with the provisions of this Act, continue to be applicable till they are
modified or revoked, as the case may be."

E It is not disputed that even at the time of regularizing the services of
the 3rd respondent the matter was not referred to the Public Service
Commissions, although, for the purpose of disposal of this matter, it may not
be necessary to delve deep into the question as regards the validity or otherwise
of the said action on the part of the State of U.P., we may notice that a
F Constitution Bench of this Court in Secretat)'. State of Karnataka & Ors. v.
Umadevi & Ors., (2006) 4 SCALE 197, has emphasized on compliance of
requirements of the constitutional scheme in making the appointments as
adumbrated in Articles 14 and 16 of the Constitution of India. The Court
emphasized that even in the matter of regularization of service the provisions
G of Articles 14 and 16 of the Constitution cannot be given a complete go-by.
The extent of the power of the State to make relaxation of the rules also came
up for consideration of the Constitution Bench. The Constitution Bench referred
to a recent decision of this Court in Union Public Service Commission v.
Girish Jayanti Lal Vaghela & Ors .. (2006) 2 SCLAE 115, where:n it was

H
observed:

-
R.S. GARG v. STATE OF U.P. [SINHA. J.] 133
''The main object of Article 16 is to create a constitutional right A
to equality of opportunity and employment in public offices. The
·words "employment" or "appointment" cover not merely the initial
appointment but also other attributes of service like promotion and
age of superannuation etc. The appointment to any post under the
State can only be made after a proper advertisement has been made B
inviting applications from eligible candidates and holding of selection
by a body of experts or a specially constituted committee whose
: members are fair and impartial through a written examination or

- interview or some other rational criteria for judging the inter se merit
of candidates who have applied in response to the advertisement
made. A regular appointment to a post under the State or Union C
cannot be made without issuing adve1tisement in the prescribed manner
which may in some cases include inviting applications from the
employment exchange where eligible candidates get their names
registered. Any regular appointment made on a post under the State
or Union without issuing advertisement inviting applications frnn D
eligible candidates and without holding a proper selection where a".
eligible candidates get a fair chance to complete would violate the
guarantee enshrined under Article 16 of the Constitution."

In Sura) Parkash Gupta & Ors. v. State of J&K & Ors., [2000) 7 SCC
561, th is Court opined: E
"The decision of this Court have recently been requiring strict
conformity with the Recruitment Rules for both direct recruits and
promotces. The view is that there can be no relaxation of the basic
or fundamental rules of recruitment."
F
Even the State cannot make rules or issue any executive instructions by
way of regularization of service. It would be in violation of the rules made
under Article 309 of the Constitution of India and opposed to the constitutional
scheme of equality clauses contained in Articles 14 and 16.

{See a~o A. Umarani v. Registrar, Cooperative Societies & Ors., [2004) G
7 SCC 112.and National Fertilizers Ltd. & Ors. v. Somvir Singh, [2006) 5
sec 493).}
The significant question, which now arises, is interpretation of Rule
S(iii) of the 1992 Rules in terms whereof for the purpose of promotion to the H
134 SUPREME COURT REPORTS (20061 SUPP. 4 S.C.R.

A post of Deputy Director of Factories (Admn.) at least 5 years service as such
from the first day of the year of recruitment is imperative. For the
aforementioned purpose, the said rule as was existing prior to 1992 and
amendment made in 1992 may be noticed which reads as under:

OLD RULE (Existing) NEW RULE (Substituted)
B
5(iii) Deputy Director of Factories 5(iii) Depllly Director of Factories
(Adminwrution) --- (Administrulion) ---·

By promotion on the basis of By promotion on the basis of
seniority subject to th.: rejection of
..
seniority subject to the rejection
c of unfit, through the Commission the unfit, through the Commission
from amongst the Permanent from amongst substantively
Assistant Director of Factories, appointed Assistant Director of
who have put in at least five years Factories, who have put in at least
of continuous service including five year service as such on the
D temporary and officiating service. first day of the year of recruitment.

The aforesaid Rule 5(iii), thus. requires that on the date of selection,
the candidate should have been substantively appointed as Assistant Director
of Factories. It does not speak of experience in the service alone. The
E submission of Mr. Dinesh Dwivedi that the words "'as such" referred to 5
years' experience of working in the post and not 5 years' experience in the
substantive capacity cannot be accepted. An ad hoc employee who has been
appointed in violation of the service rules did not hold any post. His experience
in the post would mean experience gathered by him after his appointment in
the substantive capacity. It is trite law that for the purpose of reckoning
F seniority the ad hoc services would be taken into consideration only if prior
to the appointment of the employee the authorities had complied with the
statutory requirements of selecting the candidate. At the relevant point of
time, the rule provided for selection through Public Service Commission. The
same having not been done, the appointment of the 3rd respondent was void
G ab initio. The question of regularization of his services, therefore, did not
arise.

In State of Madhya Pradesh & Anr. v. Laxmishankar Mishra, AIR
( 1979) SC 979, whereupon Mr. Dwivedi placed strong reliance, the
appointment was not required to be made in terms of the rules made under
H Article 309 of the Constitution of India. The question raised therein was
R.S. GARG v. STATE OF U.P. [SINHA. J.] 135

governed by the M.P. Local Authorities School Teachers (Absorption in A
Government Service) Rules, 1964, which provided for absorbing teachers
serving in Middle Schools and Primary Schools managed by local authorities
in Government service. It was in the aforementioned fact situation this Court
opined that every High School or Higher Secondary School must of necessity
have the post of Head Master/Princip:d and it was nowhere suggested that B
there would not be a post of Head Master/Principal. The appointment by the
authorities of the schools which were situate in the area being ruled by a
Princely State, no statutory rule required to be complied with. We, therefore,
do not subscribe to the views of the High Court that even experience gained
by the 3rd respondent while acting in ad hoc capacity would subserve the
requirements of Rule 5(iii) of the 1992 Rules. The 3rd respondent, from 1984 C
to 1995, did not hold even any temporary or any officiating post. The rule
of seniority would, thus, be the usual rule for promotion to the post of
Deputy Director. The only criteria which appears to have been laid down by
reason of 1992 amendment, is that in stead and place of the term 'permanent',
the expression 'substantively appointed' has been inserted. The 3rd respondent D
was substantively appointed only in 1995, prior whereto he was not holding
any post. A person may not be a permanent employee for the purpose of
gaining experience as the experience gained by him even during his temporary
appointment may also be specific appointment. The expression "as such"
clearly is reforable to the expression "substantively appointed". It has nothing
to do with the period of five years as was submitted by Mr. Dwivedi. The E
said Rule read in its entirety would mean that the candidate for promotion
must be appointed substantively and when so appointed, he has to put in at

- least five years service as such. The expression "first day of the year of
recruitment" is also of significance. By reason of ad hoc appointment de'hors
the rules, nobody is recruited in the service in the eyes oflaw. The expression F
"recruitment" would mean recruitment in accordance with the rules and not
de 'hors the same. Absence of experience in substantive capacity is not a
mere irregularity in this case. It would not be a mere irregularity, when a
person not eligible therefor would be considered for promotion. It may be
that for the purpose of direct appointment, experience and academic
qualifications are treated to be at par, but when an eligibility criteria has been G
provided in the Rules for the purpose of promoting to a higher post, the same
must strictly be complied with. Any deviation or departure therefrom would
render the action void.

In Ram Sarup v. State of Haryana & Ors., AIR (1978) SC 1536, H
136 SUPREME COURT REPORTS 12006] SllPP. 4 S.C.R.

A whereupon Mr. Dwivedi placed strong reliance, the appointment of the
appellant therein as Labour-cum-Conciliation Officer was found to be irregular.
In that view of the matter, the same was not void. This Court opined that the
said appointment to be irregular. as he did not possess the requisite experience
at the relevant time. His services had been regularized and, thus. he became
B entitled to be considered from the expiry of the period of five years calculated
from the date when he was appointed as Chief Inspector of Shops. The said
decision has no application in the instant case as the distinction between an
appointment in terms of the Rules and de 'hors the Rules is well known.

Jn A. Umarani (supra), it was opined:
c "Regularisation, in our considered opinion, is not and cannot be
the mode of recruitment by any "State" within the meaning of Article
12 of the Constitution of India or any body or authority governed by
a statutory Act or the Rules framed t!iereunder. It is also now well
settled that an appointment made in violation of the mandatory
D provisions of the statult: and in particular. ignoring the minimum
educational qualification and other essential qualification would be
wholly illegal. Such illegality cannot be cured by taking recourse to
regularisation. (See State of H.P. v. Suresh Kumar Verma.)

It is equally well settled that those who come by back door should
E
go through that door. (See State of U.P. v. UP. State Law Officers
Assn.)

Regularisation lurthermore cannot give permanence to an
employee whose services are ad hoc in nature."
F
An appointment de 'hors the Rules would render the same illegal and
not irregular as has been held in Umadevi (supra) in the following terms :

''Thus, it is clear that adherence to the rule of equality in public
employment is a basic feature of our constitution and since the rule
G of law is the core of our Constitution, a Court would certainly be
disabled from passing an order upholding a violation of Article 14 or
in ordering the overlooking of the need to comply with requirements
of Article 14 re<1d with Article 16 of the Constitution. Therefore,
consistent with the scheme for public employment, this Court while
laying down the !aw, r.as necessarily to hold that unless the
H
R.S. GARG v. STATE OF U.P. [SINHA • .1.] 137
appointment is in terms of the relevant rules and after a proper A
competition among qualified persons, the same would not confer any
right on the appointee."

It was further observed:

"It has also to be clarified that merely because a temporary B
employee or a casual wage worker is continued for a time beyond the
term of his appointment, he would not be entitled to be absorbed in
regular service or made permanent, merely on the strength of such
continuance, if the original appointment was not made by following
a due process of selection as envisaged by the relevant rules. It is not C
open to the court to prevent regular recruitment at the instance of
temporary employees whose period of employment has come to an
end or of ad hoc employees who by the very nature of their
appointment, do not acquire any right. High Courts acting under Article
226 of the Constitution of India, should not ordinarily issue directions
for absorption, regularization, or permanent continuance unless the D
recruitment itself was made regularly and in terms of the constitutional
scheme."

However, in the case of irregular appointment, the Constitution Bench
in Umadevi (supra) stated as follows:
E
"One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in S. V.
NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N.
NAGARAJAN (supra), and referred to in paragraph 15 above, ofduly
qualified persons in duly sanctioned vacant posts might have been F
made and the employees have continued to work for ten years or
more but without the intervention of orders of courts or of tribunals.
The question of regularization of the services of such employees may
have to be considered on merits in the light of the principles settled
by this Court in the cases above referred to and in the light of this
judgment. In that context, the Union of India, the State Governments G
and their instrumentalities should take steps to regularize as a one
time measure, the services of such irregularly appointed, who have
worked for ten years or more in duly sanctioned posts but not under
cover of orders of courts or of tribunals and should further ensure
that regular recruitments are undertaken to fill those vacant sanctioned H
138 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A posts that require to be filled up, in cases where temporary employees
or daily wagers are being now employed. The process must be set in
motion within six months from this date. We also clarify that
regularization, if any. already made, but not subjudice. need not be
reopened based on this judgment, but there should be no further by-
passing of the constitutional requirement and regularizing or making
B permanent, those not duly appointed as per the constitutional scheme."

The original appointment of 3rd respondent being illegal and not
irregular, the case would not come within the exception carved out by the
Constitution Bench. Furthermore, relaxation, if any, could have been accorded
C only in terms of Rule 28 of the Rules, Rule 28 would be attracted when
thereby undue hardship in any particular case is caused. Such relaxation of
Rules shall be permissible only in consultation with the Commission. It is not
a case where an undue hardship suffered by the 3rd respondent could
legitimately been raised being belonging to a particular class of employee.
No such case, in law could have been made out. It, in fact, caused hardship
D to other employees belonging to the same category, who were senior to him;
and thus, there was absolutely no reason why an exception should have been
made in his case.

The difference in concept of malice in law and malice on fact stand is
E well known. Any action resorted to for an unauthorized purpose would construe
malice in law. {See Smt. S.R. Venkataraman v. Union of India & Anr.,
(1979] 2 SCC 491 : AIR (1979) SC 49, State of A.P. v. Goverdhanlal Pitti,
(2003] 4 SCC 739, Chairman & M.D .. BPL ltd v. S.P. Gururaja, (2003] 8
SCC 567 and see also Punjab SEB Ltd v. Zora Singh, (2005] 6 SCC 776.}

F Malice in its legal sense means malice such as may be assumed for a
wrongful act intentionally but without just cause or excuse or for one of
reasonable or probable cause. The term malice on fact would come within the
purview of aforementioned definition. Even, however, in the absence of any
malicious intention, the principle of malice in law can be invoked as has been
G described by Viscount Haldane in Shearer and Anr. v. Shields, (1914) AC
808 at p. 813 in the following terms:

"A person who inflicts an mJury upon another person in
contravention of the law is not allowed to say that he did so with an
innocent mind; he is taken to know the law, and he must act within
H the law. He may, therefore, be guilty of malice in law, although, so
R.S. GARG v. STATE OF U.P. [SINHA, J.] 139
far the state of his mind is concerned, he acts ignorantly, and in that A
sense innocently."

The said principle has been narrated briefly in Smt. S.R. Venkataraman
v. Union of India & Anr., AIR (1979) SC 49 : [1979] 2 SCC 491, in the
following terms:
B
"Thus malice in its legal sense means malice such as may be
assumed from the doing of a wrongful act intentionally but without
just cause or excuse, or for want of reasonable or probable cause."

Another aspect of the matter cannot also be overlooked. Apart from the C
fact that the concerned authorities had made up their minds to promote the
3rd respondent herein from the very beginning, as an approval therefor appears
to have been obtained from the Chief Minister only on 20.4.1997; the post
was in fact created on the next date, i.e., on 21.4.1997 and the order of
promotion was issued on 24.4.1997, although, decision thereupon, as would
be evident from the note-sheet, had been taken on 15.4.1997 itself. Such an D
action is undue haste on the part of the respondents smacks of ma/a fide.

Furthermore, for the purpose of promotion to the post in question,
cases of at least 5 candidates were required to be considered. The case of 3rd
respondent was considered alone, although, there had been 2 other candidates,
who fulfilled the same criteria. E

Even no seniority list was prepared at the time of constitution of the
Departmental Promotion Committee.

The State proceeded on the basis that the act of conversion would
F
require an amendment to the rules. Whether such an amendment was necessary
or not, as was argued by Mr. Dwivedi, looses much significance in view of
the fact that the State itself was of the opinion that the same was necessary.
Despite the same, the Principal Secretary, Labour Department had put up the
note, as noticed hereinabove, before the Chief Minister without bringing the
same to her notice. The note was not put up only highlighting the necessity G
therefor. Two views were placed: Firstly, the conversion would not entail any
financial loss and provide promotional avenues for candidates of scheduled
castes, which by itself cannot be a matter of public interest; and Secondly,
the case of the 3rd respondent was highlighted, stating that he had been in
service since 1987-88 with interruption and since 1989 without interruption H
140 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A and upto 1995 on ad hoc basis and in regular service since 15.11.1995. It was
also stated that relaxation could be given to fulfil reservation quota under the
1994 Act, in terms whereof relaxation for qualifying service for the
aforementioned post could be accorded. Why the Public Service Commission
was ignored, has not been explained. The idea of conversion of tht• post
B should have been mooted keeping public interest in view and not the interest
of an individual. The entire approach of the authorities of the State of U.P,
thus, was only for achieving a private interest and not the public interest. It
was in that sense, the action suffered from the vice of malice in law. It has
not been disputed that there were other employees also who belonged to
scheduled caste and were senior to the 3rd respondent.
c
It has also not been disputed that no relaxation could be granted for
promotion in terms of 1994 Act. Five years' experience from the date of
substantive requirement, thus, being an essential qualification, no relaxation
could have been given in that regard to the 3rd respondent. The 1994 Act
D was not enacted for meeting such a contingency. In that view of the matter
both the Chief Minister as well as the Principal Secretary themselves did not
possess any authority to make any relaxation and in that view of the matter
they must be held to have misdirected themselves in law necessitating
interference by the superior courts by way of judicial review. When such an
illegality is committed, the superior court cannot shut its eyes. Contention of
E such glaring illegality would create a dangerous trend in future. It is one
thing to say that conversion of one post to another may be done in accordance
with law having regard to the public purpose in mind but a statutory power,
it is well-settled, cannot be exercised so as to promote a private purpose and
the same subverts the ~ame.
F A discretionary power as is well known cannot be exercised in an
arbitrary manner. It is necessary to emphasize that the State did not proceed
on the basis that the amendment to the Rules was not necessary. The action
of a statutory authority, as is well known, must be judged on the basis of the
norms set up by it and on the basis of the reasons assigned therefor. The
G same cannot be supplemented by fresh reasons in the shape of affidavit or
otherwise. {See Mohinder Singh Gill & Anr. v. The Chief Election
Commissioner. New Delhi & Ors., AIR ( l 978) SC 851, Commissioner of
Police v. Gordhandas Bhanji, AIR ( 1952) SC 16 and also Hindustan Petroleum
Corpn. ltd v. Darius Shapur Chenai, (2005] 7 SCC 627].}

H In terms of the 1994 Act, the reservation was to be confined to 21 %.
R.S. GARG v. STATEOFU.P. [SINHA, J.] 141
There were 6 posts. If the roster was to be followed, 2 posts would be A
reserved for the Scheduled Caste candidates, which is impermissible.

Mr. Dwivedi submitted that the post of Deputy Director of Factories
(Engineering) would be forming separate cadre. We do not agree. It is not
disputed that the said post has also been considered at par with the post of
Deputy Director of Factories (Administration), as the qualification for holding B
the said post was the same.

In a case of this nature, the rule of strict construction is required to be
;
applied and the action on the part of the State must be judged in terms
thereof. C
Equality clauses contained in Articles 14, 15 and 16 of the Constitution
of India may in certain situations have to be considered as the basic structure/
features of the Constitution of Ir.dia. We do not mean to say that all violations
of Article 14 or 16 would be violative of the basic features of the Constitution
of India as adumbrated in Kesvananda Bharati v. State of Kera/a, [1973] 4 D
SCC 225: (1973] Supp. SCR I. But, it is trite that while a law is patently
arbitrary, such infringement of the equality clause contained in Article 14 or
Article 16 may be held to be violative of the basic structure of the Constitution.
{See Waman Rao v. Union of India, [1981] 2 SCC 362, Maharao Saheb Shri
Bhim Singhji, etc. v. Union ofIndia & Ors., AIR (1981) SC 234 and Minerva E
Mills Ltd. & Ors. v. Union of India & Ors., (1980] 3 SCC 625].} A statute
professing division amongst citizens, subject to Articles 15 and 16 of the
Constitution of India must pass the test of strict scrutiny. Article 15(4) and
Article 16(4) profess to bring the socially and educationally backward people
to the forefront. Only for the purpose of invoking equality clause, the makers
of the Constitution thought of protective discrimination and affim1ative action. F
Such recourse to protective discrimination and affirmative action had been
thought of to do away with social disparities. So long as social disparities
among groups of people are patent and one class of citizens in spite of best
efforts cannot effectively avail equality of opportunity due to social and
economic handicaps, the policy of affirmative action must receive the approval G
of the constitutional courts. For the said purpose, however, the qualifications
laid down in the Constitution for the aforementioned purpose must be held
to be the sine qua non. Thus, affirmative action in essence and spirit involves
classification of people as backward class of citizens and those who are not
backward class of citizens. A group of persons although are not as such
backward or by passage of time ceased to be so would come within the· H
142 SUPREME COURT REPORTS (2006J SUPP. 4 S.C.R.

A purview of the creamy layer doctrine evolved by this court. The court by
evolving said doctrine intended to lay a law that in terms of our constitutional
scheme no group of persons should be held to be more equal than the other
group. In relation to the minorities, a I I-Judge Bench of this Court in TM.A.
Pai Foundation v. State vf Karnataka, [2002) 8 SCC 481 categorically held
B that protection is required to be given to the minority so as to apply the
equality clauses to them vis-a-vis the majority. In Islamic Academy of
Education v. State of Karnataka, [2003) 6 SCC 697, it was opined that the
minority have more rights than the majority. To the saici extent Islamic
Academy of Education (supra) was overruled by a 7-Judge Bench of this
Court in P.A. lnama'ur v. State of Maharashtra, [2005) 6 SCC 537).
c An executive action or a legislative Act should also be commensurate
with the dicta laid down by this Court in Indra Sawhney v. Union of India,
[1992) Supp. 2 SCR 454 ('Indra Sawhney-1') and followed in Ashoka Kumar
Thakur v. State of Bihar & Ors., (1995) 5 SCC 403 and Indra Sawhney v.
Union of India, [ 1999) Supp. 5 SCR 229 ('Indra Sawhney-ll' ).
D
In Umadevi (Supra), the Constitution Bench referring to Kesavananda
Bharati (supra), Indra Sawhney-1 (supra) and Indra Sawhney-11 (supra), opined:

'These binding decisions are clear imperatives that adherence to
Articles 14 and 16 of the Constitution is a must in the process of
E public employment."
We are not concerned with the reasonableness or otherwise of the
percentage of reservation. 21 % of the posts have been reserved f,,r Scheduled
Tribe candidates by the State itself. It, thus, cannot exceed the quota. It is not
disputed that in the event of any conflict between the percentage of reservation
p and the roster, the former shall prevaii. Thus, in the peculiar facts and
circumstances of this case, the roster to fill up the posts by reserved category
candidates, after every four posts, in our considered opinion, does not meet
the constitutional requirements.

For the reasons aforementioned, the impugned judgment cannot be
G sustained.
The question, which now arises for consideration, is as to whether this
Court, despite gross illegalities committed by the State, would refuse to exercise
its discretionary jurisdiction under Article 136 of the Constitution of India.
The order of promotion was issued on 25.4.1997. The writ petition was filed
H within a few days thereof, i.e., on 2.5.1997. As the 3rd respondent had joined
R.S. GARG v. STATE OF U.P. [SINHA, J.] 143
A
the post, no stay had been granted by the High Court. He might have been
working for about 9 years, but he was holding the post during the pendency
of the writ petition. The appellant was promoted only in the year 200 I. He
had to suffer the ignominy of working under a junior for a long time. The
fact that the 3rd respondent would retire in May, 2007 is again wholly
immaterial. It is of not much relevance. B
It is also not correct to contend that the selection was on merit basis.
If the post was not reserved, in no way the 3rd respondent could have been
promoted. He might not have come within the purview of zone of
consideration. This case points out how the illegalities are committed by the C
State causing deprivation of legitimate right of promotion of more meritorious
and senior candidates.

It is not a case, where we should refrain ourselves from exercising our
discretionary jurisdiction. For the reasons aforementioned, the impugned
judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. D
The respondents shall bear the costs of the appellant throughout. Such costs
would be borne by the State as also the 3rd respondent equally, which is
assessed at Rs.50,000/-.

B.B.B. Appeal allowed. E