SIRAJ AHMADversusSTATE OF UTTAR PRADESH & ANR.

                         [2019] 16 S.C.R. 1131                         1131


                         SIRAJ AHMAD                                   A
                                 v.
             STATE OF UTTAR PRADESH & ANR.
                  (Civil Appeal No. 9412 of 2019)
                       DECEMBER 13, 2019                               B
 [S. A. BOBDE, CJI., B. R. GAVAI AND SURYA KANT, JJ.]
       U.P. Development Authorities Centralised Service Rules, 1985
– Sub.r.(3) of r.24 – Promotion – Claim for – Appellant underwent
the selection process conducted by the State under the provision
                                                                       C
of the Rules, 1985 and was appointed on ad-hoc basis on the post
of Junior Engineer by Respondent No.1 – While in service
appellant obtained the degree in B.Sc.-Engineering – Thereafter,
appellant sought promotion u/sub. r.(3) of r.24 of the Rules –
Appellant was not promoted – Writ petition by appellant was
rejected by the High Court – The State contended that the              D
appointment was not made with the concurrence of U.P. Public
Service Commission, therefore, appellant’s appointment was illegal
– Appellant contended that he was entitled for promotion as he
was continuously employed from the date of initial appointment –
On appeal, held: The case of appellant was squarely covered by
                                                                       E
the judgment of the Constitution Bench in the case of Direct Recruit
Class II Engineering Officers Association – It was not in dispute
that except the concurrence of the U.P. Public Service Commission
the appointment of the appellant was made after following the
procedure prescribed under the said Rules – The appointment of
the appellant at the most can be termed as irregular and not illegal   F
– The appellant had uninterruptedly served till the regularisation
of his service which was made in accordance with the Rules –
Further, the Respondent had issued an office memorandum dated
11.03.1994 providing for relaxation of the condition which
prescribed minimum 10 years service on the post of Junior
                                                                       G
Engineer – By the said office memorandum, the government
provided that 5% of the posts out of 50% promotional quota were
to be reserved for such Junior Engineers, who had passed B.E.
or A.I.M.E. Examination – Appellant possessed the said
qualification – The High Court in another similarly circumstanced
case had directed for consideration for the purpose of promotion       H
                                1131
1132           SUPREME COURT REPORTS                    [2019] 16 S.C.R.


 A     to the higher post – However, the High Court in the case of the
       appellant rejected his claim for promotion – The High Court had
       considered the case of two employees differently when they were
       similarly circumstanced – Therefore, in view of the office
       memorandum dated 11.03.1994, the appellant was entitled to be
       promoted immediately after the issuance of the said office
 B
       memorandum as he possessed the requisite degree when the said
       office memorandum was issued – The High Court erred in
       dismissing the petition of the appellant – Service Law.
            Allowing the appeal, the Court
 C           HELD: 1. The Constitution Bench in Direct Recruit Class
       II Engineering Officers Association case in unequivocal terms
       holds that, if an appointment is made by way of stopgap
       arrangement without considering the claims of all the eligible
       persons and without following the rules of appointment, the
       experience of such appointment cannot be equated with the
 D     experience of a regular appointee, because of qualitative
       difference in the appointment. It however holds, that if the
       appointment is made after considering the claims of all eligible
       candidates and the appointee continues in the post
       uninterruptedly till the regularisation of his service in
       accordance with the rules made for regular substantive
 E     appointments, there is no reason to exclude the officiating
       service for purpose of seniority. [Para 18] [1140-E-G]
             2. It can thus clearly be seen, that the Constitution Bench
       in unequivocal terms holds that, if the initial appointment is not
       made by following the procedure laid down by the rules, but the
 F     appointee continues in the post uninterruptedly till the
       regularisation of his service in accordance with the rules, the
       period of officiating service will be counted. [Para 20] [1141-D]
             3. It is not in dispute, that except the concurrence of the
       U.P. Public Service Commission the appointment of the appellant
 G     has been made after following the procedure prescribed under
       the said Rules. The appellant has uninterruptedly served till the
       regularisation of his service which was made in accordance with
       the rules. It can thus be seen that the case of present appellant
       is squarely covered by the judgment of the Constitution Bench
       in the case of Direct Recruit Class II Engineering Officers
 H     Association. [Para 21] [1141-E-F]
   SIRAJ AHMAD v. STATE OF UTTAR PRADESH & ANR.                     1133


      4. It is further to be noted that the Respondent had issued   A
an office memorandum dated 11.03.1994 thereby, providing for
relaxation of the condition which prescribed minimum 10 years
service in the post of Junior Engineer. Schedule-3 to the said
Rules provided, that for being eligible to the promotion of
Assistant Engineer along with the educational qualification a       B
candidate must possess 10 years service, in the post of Junior
Engineer on 01st July of the selection year. By the said office
memorandum, the Government provided that 5% of the posts
out of 50% promotional quota are to be reserved by extending
relaxation to such of the Junior Engineers, who have passed B.E.
or A.M.I.E. examination. It further provided, that in case          C
candidates possessing B.E./A.M.I.E. examination were not
available, the post should be filled in from non Graduate Junior
Engineers. It is to be noted that the Government had also sought
information from the Development Authorities with regard to the
number of persons possessing the requisite B.E./A.M.I.E.            D
degree. In response to the said communication the Agra
Development Authority had intimated the respondent state the
name of the appellant being the only person possessing the said
qualification. [Para 22] [1141-G-H; 1142-A-B]
      5. This Court fails to appreciate as to how the same High     E
Court could have considered the case of two employees
differently when they were similarly circumstanced. It is not in
dispute that the present appellant as well as other employee
were selected through the same selection process though their
orders of appointment differs. The only ground on which the
                                                                    F
High Court has refused to consider the case of the appellant is
that in the case of the other employee, the court had not
considered the issue with regard to non-concurrence of the U.P.
Public Service Commission. At the cost of repetition as
discussed herein above the appointment of the appellant at the
most can be considered as irregular and not illegal [Paras 23       G
and 26] [1142-C; 1143-E-F]
     6. It is to be noted that the appellant has obtained the
Bachelor of Science (Engineering) degree in the year 1987 and
though the other three employees had obtained the degree of
A.M.I.E. in the year 1993 and 1994, they were held entitled for     H
1134           SUPREME COURT REPORTS                    [2019] 16 S.C.R.


 A     promotion as Assistant Engineer from Junior Engineer. This
       Court fails to appreciate the approach of the High Court in
       denying the promotion to the appellant when all the other three
       employees were appointed in the year 1987 through the same
       selection process and though one of them had obtained the
       degree in 1993 and other two had obtained the same in 1994
 B
       whereas the appellant had obtained the said degree in 1987.
       [Para 27] [1143-G-H; 1144-A]
             7. It could thus be seen that, in view of the office
       memorandum dated 11.03.1994, the appellant was entitled to be
       promoted immediately after the issuance of the said office
 C     memorandum as he possessed the requisite degree when the
       said office memorandum was issued. In any case the appellant
       is entitled to be promoted with effect from 18.01.1995 i.e. the
       date on which the juniors to him were promoted. [Para 28]
       [1144-B-C]
 D          Direct Recruit Class – II Engineering Officers
            Association v. State of Maharashtra and others (1990)
            2 SCC 715 : [1990] 2 SCR 900 ; Secy., State of
            Karnataka v. Uma Devi (2006) 4 SCC 1 : [2006] 3
            SCR 953 – followed.
 E          State of M.P. and ors. v. Lalit Kumar Verma (2007) 1
            SCC 575 : [2006] 9 Suppl. SCR 591 ; State of
            Karnataka and Others v. M. L. Kesari and Others
            (2010) 9 SCC 247 : [2010] 9 SCR 543 – relied on.
            Rajendra Prasad Dwivedi v. State of U.P. and others
 F          Writ Petition No. 3421 of 1996 ; State of U.P. v. R. P.
            Dwivedi in its Order dated 13.02.2014 in Special
            Appeal No. 75 of 2012 – referred to.
                            Case Law Reference
       [1990] 2 SCR 900                followed             Para 6
 G     [2006] 9 Suppl. SCR 591         relied on            Para 11
       [2006] 3 SCR 953                followed             Para 11
       [2010] 9 SCR 543                relied on            Para 13
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9412
 H     of 2019.
    SIRAJ AHMAD v. STATE OF UTTAR PRADESH & ANR.                             1135


      From the Judgment and Order dated 11.09.2017 of the High               A
Court of Judicature at Allahabad, Lucknow Bench in WP (Service
Bench) No. 1020 of 2015.
      P. S. Patwalia, Sr. Adv., M. R. Shamshad, Aditya Samaddar, Arijit
Sarkar, Advs. for the Appellant.
      V. Shekhar, Sr. Adv., Rajeev Kumar Dubey, Ashiwan Mishra,              B
Sheetal Rajput, Kamlendra Mishra, Bhakti Vardhan Singh, Advs. for
the Respondents.
      The following Judgment of the Court was delivered:
                             JUDGMENT
                                                                             C
      1. Leave granted.
      2. Heard the learned Counsels for the parties.
       3. The appeal challenges the Judgment and Order dated
11.09.2017, passed by the division bench of Allahabad High Court in
W.P.(Service Bench) No. 1020 of 2015, thereby dismissing the Writ            D
Petition filed by appellant.
      4. The facts giving rise to the present appeal are as under:
       The appellant was appointed on ad-hoc basis on the post of Junior
Engineer in the pay scale of Rs. 485-860/- by order dated 30.03.1987,
issued by Respondent No. 1. It is not in dispute that the said Order         E
was issued with prior approval of the Governor of Uttar Pradesh. It is
also not in dispute, that the said appointment was made after the post
was advertised and after the appellant underwent the selection process
conducted by the State under the provisions of U.P. Development
Authorities Centralized Services Rules, 1985 (hereinafter referred as
“the said Rules”). Pursuant to the selection and appointment, the            F
appellant joined with the Agra Development Authority on 08.04.1987.
While in service the appellant obtained the degree in B.Sc.-Engineering
from Aligarh Muslim University, Aligarh on 08.06.1987. The appellant
thereafter through proper channel communicated the respondents the
fact regarding obtaining of requisite qualification and being eligible for   G
consideration for promotion, to the post of Assistant Engineer (Civil),
in the Centralised Services under Sub Rule (3) of Rule 24 of the said
Rules. It is the case of the appellant, that the State Government had
sought information from all the Development Authorities vide
communication dated 25.09.1987 with regard to the number of Junior
Engineers possessing the degree of Bachelor of Engineering / A.M.I.E.        H
1136                SUPREME COURT REPORTS                     [2019] 16 S.C.R.


 A     In compliance to the said communication the Vice-Chairman of Agra
       Development Authority informed the State Government that in Agra
       Development Authority appellant was the only Junior Engineer, who was
       possessing the degree of Bachelor of Engineering.
              5. Since the appellant was not promoted, he made various
 B     representations to the State seeking promotion. The appellant had
       claimed the promotion from 18.01.1995, i.e. the date on which the juniors
       to the appellant were promoted. The appellant’s claim for promotion
       came to be rejected on 16.04.2015. Hence the appellant approached
       the division bench of the High Court by way of Writ Petition. The petition
       came to be rejected. Hence, the present appeal.
 C
              6. Shri P.S. Patwalia, learned Senior Counsel appearing on behalf
       of appellant submits, that the appellant’s services already stood
       regularised from 23.11.2002 and as such in view of the law laid down
       by the Constitution Bench of this Court in the case of Direct Recruit
       Class – II Engineering Officers Association vs. State of
 D     Maharashtra and others1, the appellant was entitled for promotion
       by treating his continuous service from the date of initial appointment.
              7. The learned Senior Counsel further submits that, as a matter
       of fact the Allahabad High Court itself, in the case of Rajendra Prasad
       Dwivedi vs. State of U.P. and others2, vide judgment and order dated
 E     19.08.2011, had directed the State Government to consider the case of
       said Shri Dwivedi for promotion to the post of Assistant Engineer after
       completion of 10 years of service as Junior Engineer, provided they had
       a B.E./A.M.I.E. degree.
              8. It is further submitted, that vide subsequent Order dated
 F     09.11.2011, the Allahabad High Court had modified its Order in view
       of the Judgment of the Constitution Bench of this Court in Direct
       Recruitment of Class – II Engineering Officers Association (supra),
       wherein it is observed, that the petitioner therein, i.e. Rajendra Prasad
       Dwivedi, became eligible for promotion to the post of Assistant Engineer
       as soon as he obtained qualification of A.M.I.E. in 1993. He submits,
 G
       that vide said Order, it was held that if the promotion was given to any
       other Junior Engineer, junior to the petitioner therein, the petitioner
       therein was also eligible for promotion from the said date along with

       1
           1990 (2) SCC 715
       2
 H         Writ Petition No. 3421 of 1996
       SIRAJ AHMAD v. STATE OF UTTAR PRADESH & ANR.                             1137


consequential benefits. The learned Senior Counsel submits that the             A
learned Single Judge who passed the Order in the case of Rajendra
Prasad Dwivedi was the same learned Judge heading the bench in the
case of present appellant and, as such, there was no reason as to why
the appellant ought not to have been given the same benefit.
       9. Per contra, Mr. V. Shekhar, learned Senior Counsel, appearing         B
on behalf of the State submits that, under the rules it was necessary
that the appointment was made with concurrence of U.P. Public Service
Commission. He submits, undisputedly the appellant’s appointment was
not made with the concurrence of U.P. Public Service Commission. It
is therefore submitted, that as such the appellant’s appointment will have
to be termed as illegal. He therefore submits, that the High Court has          C
rightly refused to take into consideration the services of the appellant,
prior to the date on which his services came to be regularised.
      10. The facts in the present case are not in dispute. Undisputedly
the appellant’s initial appointment in the year 1987 was after the
advertisement was issued for the posts in Centralised Services                  D
constituted under the said Rules. It is also not in dispute, that the
appellant was selected after he underwent the entire selection process
by competing with other persons, who had also applied for the said post.
The only issue that the learned Judges of the division bench have found
against the appellant is that the appellant’s selection was not made in
due consultation with the U.P. Public Service Commission.                       E

      11. This court in the case of State of M.P. and ors. vs. Lalit
Kumar Verma3, after considering the Judgment of Constitution Bench
of this Court in the case of Secy., State of Karnataka vs. Uma
Devi(3)4, observed thus :
                                                                                F
         “12. The question which, thus, arises for consideration, would be:
         Is there any distinction between “irregular appointment” and
         “illegal appointment”? The distinction between the two terms is
         apparent. In the event the appointment is made in total disregard
         of the constitutional scheme as also the recruitment rules framed
         by the employer, which is “State” within the meaning of Article        G
         12 of the Constitution of India, the recruitment would be an illegal
         one; whereas there may be cases where, although, substantial
         compliance with the constitutional scheme as also the rules have
3
    (2007) 1 SCC 575
4
    (2006) 4 SCC 1                                                              H
1138               SUPREME COURT REPORTS                          [2019] 16 S.C.R.


 A              been made, the appointment may be irregular in the sense that
                some provisions of some rules might not have been strictly
                adhered to.”
             12. It can thus be seen that this court has held that the distinction
       between irregular appointment and illegal appointment is clear. It has
 B     been held that in the event appointment is made in total disregard to
       the constitutional scheme and the recruitment rules framed by the
       employer, where the employer is a “State” within the meaning of Article
       12 of the Constitution of India, the recruitment will be illegal one. It
       has however been held, that where although, substantial compliance with
       the constitutional scheme, as also the rules have been made, the
 C     appointment would become irregular in as much as the some provisions
       of some rules have been adhered to.
             13. Subsequently another bench of this Court in the case of State
       of Karnataka and Others vs. M. L. Kesari and Others 5 also had an
       occasion to consider the issue. The Court observed thus :
 D              “7. It is evident from the above that there is an exception to the
                general principles against “regularisation” enunciated in Umadevi
                (3) [(2006) 4 SCC 1] , if the following conditions are fulfilled:
                      (i) The employee concerned should have worked for 10
                          years or more in duly sanctioned post without the benefit
 E                        or protection of the interim order of any court or tribunal.
                          In other words, the State Government or its
                          instrumentality should have employed the employee and
                          continued him in service voluntarily and continuously for
                          more than ten years.
 F                   (ii) The appointment of such employee should not be illegal,
                          even if irregular. Where the appointments are not made
                          or continued against sanctioned posts or where the
                          persons appointed do not possess the prescribed
                          minimum qualifications, the appointments will be
                          considered to be illegal. But where the person employed
 G                        possessed the prescribed qualifications and was working
                          against sanctioned posts, but had been selected without
                          undergoing the process of open competitive selection,
                          such appointments are considered to be irregular.”

       5
 H         (2010) 9 SCC 247
    SIRAJ AHMAD v. STATE OF UTTAR PRADESH & ANR.                             1139


       14. This court held, that where the appointment are not made or       A
continued against sanctioned posts or where the persons appointed do
not possess the prescribed minimum qualifications, the appointment will
be considered to be illegal. However, when the person employed
possessed the prescribed qualifications and is working against the
sanctioned posts, but had been selected without undergoing the process
                                                                             B
of open competitive selection, such appointments are considered to be
irregular.
       15. As already discussed herein above, the appellant had applied
in pursuance to the advertisement issued by State for the post in the
Centralised Services under the provisions of the said rules. The appellant
had participated in the selection process along with the other               C
competitors. The appellant was possessing the requisite qualification and
was selected after competing with others and was appointed against
the sanctioned posts for a period of One year. Undisputedly the appellant
thereafter has continuously rendered his services, till the date of
regularisation of his services i.e. on 23.11.2002 and even thereafter till   D
date. As such appellant’s case would be on a much better pedestal that
the one which fall for consideration in the case of M.L. Kesari (Supra).
      16. It can thus be seen that the only issue which is found against
the appellant is that prior to appointment there was no concurrence of
the U.P. Public Service Commission. It can thus be seen that the             E
appointment of the appellant at the most can be termed as irregular
and not illegal.
       17. It will be apposite to refer to the following observations of
the constitution bench judgment of this Court in the case of Direct
Recruit Class II Engineering Officers Association (supra), the               F
constitution bench has observed thus
      “13. When the cases were taken up for hearing before us, it was
      faintly suggested that the principle laid down in Patwardhan
      case [(1977) 3 SCC 399: 1977 SCC (L&S) 391: (1977) 3 SCR
      775] was unsound and fit to be overruled, but no attempt was           G
      made to substantiate the plea. We were taken through the
      judgment by the learned counsel for the parties more than once
      and we are in complete agreement with the ratio decidendi, that
      the period of continuous officiation by a government servant, after
      his appointment by following the rules applicable for substantive
      appointments, has to be taken into account for determining his         H
1140            SUPREME COURT REPORTS                         [2019] 16 S.C.R.


 A           seniority; and seniority cannot be determined on the sole test of
             confirmation, for, as was pointed out, confirmation is one of the
             inglorious uncertainties of government service depending neither
             on efficiency of the incumbent nor on the availability of
             substantive vacancies. The principle for deciding inter se seniority
             has to conform to the principles of equality spelt out by Articles
 B
             14 and 16. In Baleshwar Dass v. State of U.P. [(1980) 4 SCC
             226: 1980 SCC (L&S) 531: (1981) 1 SCR 449] and Delhi Water
             Supply and Sewage Disposal Committee v. R.K.
             Kashyap [1989 Supp (1) SCC 194: 1989 SCC (L&S) 253: (1989)
             9 ATC 784] , with which we are in agreement. In Narender
 C           Chadha v. Union of India [(1986) 2 SCC 157: 1986 SCC (L&S)
             226: (1986) 1 SCR 211] the officers were promoted although
             without following the procedure prescribed under the rules, but
             they continuously worked for long periods of nearly 15-20 years
             on the posts without being reverted. The period of their
             continuous officiation was directed to be counted for seniority
 D
             as it was held that any other view would be arbitrary and violative
             of Articles 14 and 16. There is considerable force in this view
             also. We, therefore, confirm the principle of counting towards
             seniority the period of continuous officiation following an
             appointment made in accordance with the rules prescribed for
 E           regular substantive appointments in the service.”
              18. The constitution bench in unequivocal terms holds that, if an
       appointment is made by way of stopgap arrangement without
       considering the claims of all the eligible persons and without following
       the rules of appointment, the experience of such appointment cannot
 F     be equated with the experience of a regular appointee, because of
       qualitative difference in the appointment. It however holds, that if the
       appointment is made after considering the claims of all eligible
       candidates and the appointee continues in the post uninterruptedly till
       the regularisation of his service in accordance with the rules made for
       regular substantive appointments, there is no reason to exclude the
 G     officiating service for purpose of seniority.
             19. The constitution bench concludes thus :
             “47. To sum up, we hold that:
                  A) Once an incumbent is appointed to a post according to
 H                   rule, his seniority has to be counted from the date of
    SIRAJ AHMAD v. STATE OF UTTAR PRADESH & ANR.                               1141


                his appointment and not according to the date of his           A
                confirmation.
                The corollary of the above rule is that where the initial
                appointment is only ad hoc and not according to rules
                and made as a stop-gap arrangement, the officiation in
                such post cannot be taken into account for considering         B
                the seniority.
            B) If the initial appointment is not made by following the
               procedure laid down by the rules but the appointee
               continues in the post uninterruptedly till the regularisation
               of his service in accordance with the rules, the period         C
               of officiating service will be counted.
                …….”
      20. It can thus clearly be seen, that the Constitution Bench in
unequivocal terms holds that, if the initial appointment is not made by
following the procedure laid down by the rules, but the appointee              D
continues in the post uninterruptedly till the regularisation of his service
in accordance with the rules, the period of officiating service will be
counted.
      21. It is not in dispute, that except the concurrence of the U.P.
Public Service Commission the appointment of the appellant has been            E
made after following the procedure prescribed under the said Rules.
The appellant has uninterruptedly served till the regularisation of his
service which was made in accordance with the rules. It can thus be
seen that the case of present appellant is squarely covered by the
judgment of the Constitution Bench in the case of Direct Recruit Class         F
II Engineering Officers Association (supra).
       22. It is further to be noted that the Respondent had issued an
office memorandum dated 11.03.1994 thereby, providing for relaxation
of the condition which prescribed minimum 10 years service in the post
of Junior Engineer. Schedule-3 to the said Rules provided, that for being
                                                                               G
eligible to the promotion of Assistant Engineer along with the educational
qualification a candidate must possess 10 years service, in the post of
Junior Engineer on 01st July of the selection year. By the said office
memorandum, the Government provided that 5% of the posts out of
50% promotional quota are to be reserved by extending relaxation to
such of the Junior Engineers, who have passed B.E. or A.M.I.E.                 H
1142            SUPREME COURT REPORTS                         [2019] 16 S.C.R.


 A     examination. It further provided, that in case candidates possessing B.E.
       / A.M.I.E. examination were not available, the post should be filled in
       from non Graduate Junior Engineers. As discussed herein above, it is
       to be noted that the Government had also sought information from the
       Development Authorities with regard to the number of persons
       possessing the requisite B.E. / A.M.I.E. degree. In response to the said
 B
       communication the Agra Development Authority had intimated the
       respondent state the name of the appellant being the only person
       possessing the said qualification.
               23. We further fail to appreciate as to how the same High Court
       could have considered the case of two employees differently when they
 C     were similarly circumstanced. It is not in dispute that the present
       appellant as well as Rajendra Prasad Dwivedi were selected through
       the same selection process though their orders of appointment differs.
       It will be appropriate to refer to the observation made by the Allahabad
       High Court in Writ Petition No. 3421 of 1996 in the case of Rajendra
 D     Prasad Dwivedi vs. State of U.P. which reads thus:
             “Upon perusal of the Government Orders dated 26th of August,
             1992 as well as 11th of March, 1994, I find force in the
             submission of the petitioner, therefore, I am of the view that as
             soon as the petitioner obtained the qualification of AMIE in 1993,
             he became eligible for promotion to the post of Assistant
 E           Engineer. Though only gaining the qualification does not create
             right of promotion, but I am of the view that if thereafter any
             promotion has been given to others particularly junior to the
             petitioner, the petitioner is liable to be considered for promotion
             from the said date alongwith consequential benefits.
 F           In light of the law laid down by the Hon’ble Supreme Court, in
             the case referred to here-in-above, I hereby also observe that
             the fact that the petitioner was not confirmed in the service, shall
             not come in the way of the petitioner’s promotion as an
             impediment and the petitioners services even on ad hoc basis on
             the post of Junior Engineer shall be taken into consideration for
 G           the purpose of promotion to the higher post. Accordingly a
             direction is issued to the respondents to consider the petitioner’s
             case for promotion to the higher post from the date of promotion
             of his junior within two months, after receipt of a certified copy
             of this order”
 H                                                         (emphasis supplied)
    SIRAJ AHMAD v. STATE OF UTTAR PRADESH & ANR.                            1143


       24. The above judgment of the learned Single Judge dated             A
09.11.2011 was carried in appeal before the division bench of the said
court. The division bench of the Allahabad High Court in Special Appeal
No. 75 of 2012 in State of U.P. Vs. R. P. Dwivedi in its Order dated
13.02.2014 observed thus:
      “On due consideration of rival submissions, we find considerable      B
      force in the arguments of respondent. The condition of length of
      ten years’ service was relaxed. The respondent, though appointed
      on ad-hoc basis as Junior Engineer on 24.02.1987, had obtained
      the degree of AMIE on 10.10.1993 before Sri Sunil Dutt Sharma
      and Sri Sajid Hasan who passed the examination in 1994. As the        C
      vacancies were available and the private respondent was qualified
      to be considered for promotion in 1993, he should have been
      considered even prior to the aforesaid persons. ....”
                                                    (emphasis supplied)
       25. The State had also carried the said matter by way of Special     D
Leave Petition Civil (CC) No. 13830-31 of 2014 before this court. The
SLP also came to be dismissed on 12.01.2015. The state thereafter
preferred a Review Petition, seeking review of the Judgment of division
bench in the case of State of U.P. vs. Rajendra Prasad Dwivedi by
way of Review Petition No. 188 of 2015. The said Review Petition is
                                                                            E
also dismissed.
       26. The only ground on which the High Court has refused to
consider the case of the appellant is that in the case of Rajendra Prasad
Dwivedi, the court had not considered the issue with regard to non-
concurrence of the U.P. Public Service Commission. At the cost of
                                                                            F
repetition as discussed herein above the appointment of the appellant
at the most can be considered as irregular and not illegal.
       27. It is to be noted that the appellant has obtained the Bachelor
of Science (Engineering) degree in the year 1987 and though Rajendra
Prasad Dwivedi had obtained the A.M.I.E. in 1993, taking into
                                                                            G
consideration that Sunil Dutt Sharma and Sajid Hasan had obtained the
degree of A.M.I.E. in 1994, the said Rajendra Prasad Dwivedi was
held to be entitled for promotion on 18.01.1995 i.e. the date on which
the said Sajid Hasan and Sunil Dutt Sharma were promoted as Assistant
Engineer from Junior Engineer. We fail to appreciate the approach of
the High Court in denying the promotion to the appellant when all the       H
1144                SUPREME COURT REPORTS                       [2019] 16 S.C.R.


 A     other three i.e. namely Rajendra Prasad Dwivedi, Sajid Hasan and Sunil
       Dutt Sharma were appointed in the year 1987 through the same selection
       process and though Rajendra Prasad Dwivedi had obtained the degree
       in 1993 and Sajid Hasan and Sunil Dutt Sharma had obtained the same
       in 1994 whereas the appellant had obtained the said degree in 1987.
 B             28. It could thus be seen that, in view of the office memorandum
       dated 11.03.1994, the appellant was entitled to be promoted immediately
       after the issuance of the said office memorandum as he possessed the
       requisite degree when the said office memorandum was issued. In any
       case the appellant is entitled to be promoted with effect from 18.01.1995
       i.e. the date on which the juniors to him were promoted.
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             29. As already discussed, the non-concurrence with the U.P.
       Public Service Commission, at the most would make the appointment
       of the appellant irregular and not illegal. We are therefore of the
       considered view that the High Court erred in dismissing the petition of
       the appellant. The appeal deserves to succeed on more than one ground.
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             30. Hence, the following order:
                     (i) The appeal is allowed;
                     (ii) The Judgment and Order passed by the High Court
                          dated 11.09.2017 is quashed and set aside;
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                    (iii) The Order passed by the Respondent No. 1, dated
                          16.04.2015 is quashed and set aside.
                    (iv) It is held and declared that the petitioner is entitled to
                         promotion to the post of Assistant Engineer (Civil) from
                         the date on which his junior possessing the Bachelor of
 F
                         Engineering / A.M.I.E. has been promoted with all
                         consequential benefit.
                     (v) In the facts and circumstances, there shall be no order
                         as to costs.
 G
       Ankit Gyan                                                    Appeal allowed.




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