UNION OF INDIA & ORS.versusSHRI G.R.RAMA KRISHNA & ANR.

                     [2013] 8 S.C.R. 261


                 UNION OF INDIA & ORS.                              A
                             v.
             SHRI G.R.RAMA KRISHNA & ANR.
              (Civil Appeal No. 7032 of 2013)
                     AUGUST 23, 2013
                                                                    8
      [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

     Service Law - Recruitment - Promotion - Andaman
Lakshdeep Harbour Works (ALHW) - Post of Executive
Engineer - Three alternate modes of recruitment to the Post,        c
namely, (1) by promotion, failing which (2) by transfer on
deputation (including short term contract) and failing both (3)
by direct recruitment - Held: If some departmental candidate
is available and eligible to be considered, promotion method
is to be resorted to in the first instance - However, on facts,     D
no departmental candidate was available - Respondent had
not completed 8 years regular service as Assistant Engineer,
as required for promotion to the post of Executive Engineer -
In such circumstances only out of sympathy, the High Court
could not have given the impugned direction for appointment         E
of respondent as Executive Engineer - This judicial sympathy
resulting into a right in favour of respondent to appoint him
contrary to the recruitment rules framed under proviso to
Article 309 of the Constitution which are statutory in nature was
clearly misplaced and needs to be denounced - Such a
                                                                    F
direction is clearly unsustainable and is accordingly set aside
- Constitution of India, 1950 - Article 309.

    The respondent was working as Assistant Engineer
(Mechanical) in Andaman Lakshdeep Harbour Works
(ALHW). The U.P .S.C. advertised the post of Executive              G
Engineer (Mechanical) for filling up on direct recruitment
basis. This move for filling up of the post of Executive
Engineer (Mechanical) adopting the mode of direct

                              261                                   H
    262       SUPREME COURT REPORTS           [2013] 8 S.C.R.


A recruitment was taken on the premise that no
  departmental candidate was available inasmuch as 8
  years regular service as Assistant Engineer was needed
  for promotion to the post of Executive Engineer, and no
  departmental employee fulfilled this condition.
B
       The respondent filed O.A. before the Cer.itral
  Administrative Tribunal challenging the proposal of the
  UPSC to fill the post on direct recruitment basis
  contending that he was eligible to be considered for such
  a promotion as after counting the ad-hoc period he had
C completed the requisite number of years as Assistant
  Engineer. The O.A. was dismissed. The respondent then
  filed Writ Petition. The High Court allowed the Writ
  Petition and modified the order of the Tribunal by
  directing that the respondent be appointed as Executive
D Engineer after observing all other formalities, and
  therefore the present appeal.

          Allowing the appeal, the Court

E      HELD: 1. The approach of the High Court cannot be
  appreciated. As per the extant rules for promotion to the
  post of Executive Engineer (Mechanical) 8 years regular
  service as Assistant Engineer is imperative. The Rules do
  not provide for any relaxation in this behalf. This is clear
F from the reading of the said rules which provide for
  appointment to the post of Executive Engineer
  (Mechanical). As per the Recruitment Rules, post of
  Executive Engineer (Mechanical) is a selection post. The
  mode of recruitment stated in the Rules is as under:
  "By promotion failing which by transfer on deputation
G (including short-term contract) and failing both by direct
  recruitment." The Recruitment Rules also stipulate
  eligibility condition in all the three circumstances, namely,
  promotion, transfer on deputation as well as direct
  recruitment. [Para 8] [266-F-H; 267-A]
H
  UNION OF INDIA & ORS. v. GR.RAMA KRISHNA                263


     2. It is apparent that there are three alternate modes      A
of recruitment to the Post, namely, (1) by promotion,
failing which (2) by transfer on deputation (including
short term contract) and failing both (3) by direct
recruitment. No doubt, if some departmental candidate is
available and eligible to be considered, the promotion           8
method is to be resorted to in the first instance. However,
no departmental candidate was available. Concededly,
the respondent had not completed 8 years regular service
as Assistant Engineer. In such circumstances only out of
sympathy the High Court could not have given the                 C
impugned direction. This judicial sympathy resulting into
a right in favour of respondent to appoint him contrary
to the recruitment rules framed under proviso to Article
309 of the Constitution of India which are statutory in
nature is clearly misplaced and needs to be denounced.
Such a direction is clearly unsustainable and is                 0
accordingly set aside. As a result, the order of the
Tribunal is restored. [Para 9] [267-C-G]

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7032 of 2013.                                                    E

    From the Judgment & Order dated 11.01.2010 of the High
Court of Calcutta in WPCT No. 281 of 2009.

    J.S. Attri, S. Nagrajan, D.S. Mahra, Priyanka Bharihoke,
Sarfraz A. Siddiqui, S.K. Mishra, Satya Siddiqui for the         F
Appellants.

    The Judgment of the Court was delivered by

    A.K. SIKRI, J. 1. Leave granted.
                                                                 G
    2. The respondent No.1 herein (hereinafter referred to as
the respondent) was appointed as Engineering Assistant
(Mechanical) in Andaman Lakshdeep Harbour Works (ALHW)
on ad-hoc basis with effect from 17.4.1979. Though this ad-hoc
                                                                 H
    264      SUPREME COURT REPORTS               [2013] 8 S.C.R.


A period was of one year, the respondent continued to work in
  the capacity even thereafter without obtaining the approval of
  the Department of Personnel and Training. The services were
  continued as ALHW was facing lots of problems due to
  shortage of staff at various levels. He was later on promoted
8 as Inspector of Works on ad-hoc with effect from 11.11.1984.
  This post was later on merged with that of Junior Engineer and
  thus the respondent was accorded the status of Junior Engineer.

       3. Next promotion from Junior Engineer is to the post of
C Assistant Engineer. Again on ad-hoc basis, the respondent
  was promoted as Assistant Engineer with effect from
  23.9.1999. He was given regular promotion as Assistant
  Engineer (Mechanical) on 2.6.2005 and was put on probation
  for a period of two years from that date. The respondent
  submitted his representation dated 13.10.2008 for treating the
D ad-hoc period of Assistant ~ngineer from the 23.9.1999 to
  24.8.2005 as regular service for promotion to the next higher
  post i.e. Executive Engineer (Mechanial). This representation
  was turned down by the authorities with the result that the
  respondent was treated as regularly appointed Assistant
E Engineer only from 24.8.2005.

       4. On 10/16.1.2009, the U.P.S.C. advertised the post of
  Executive Engineer (Mechanical) for filling up on direct
  recruitment basis and fixed the date of interview as 27.2.2009.
F This move for filling up of the post of Executive Engineer
  (Mechanical) adopting the mode of direct recruitment was
  taken on the premise that no departmental candidate was
  available inasmuch as 8 years regular ~ervice as Assistant
  Engineer was needed for promotion to tile post of Executive
G Engineer, and no departmental employee fulfilled this condition.

           5. The respondent filed O.A. before the Central
    Administrative Tribunal challenging the proposal of the UPSC
    to fill the post on direct recruitment basis contending that he
    was eligible to be considered for such a promotion as after
H
   UNION OF INDIA & ORS. v. GR.RAMA KRISHNA                 265
                 [A.K. SIKRI, J.]
counting the ad-hoc period he had completed the requisite           A
number of years as Assistant Engineer.

     6. This O.A. was dismissed by the Tribunal taking note of
the recruitment rules as per which regular service of 8 years is
mentioned as qualifying service to become eligible for the post     B
of Executive Engineer. The relevant portion of the order of the
Central Administrative Tribunal in this behalf reads as under:

          "The point to be considered here is whether the
    applicant has any legal right to be considered for the post
    of Executive Engineer (Mechanical). It is seen he was an        C
    ad-hoc appointee for various periods of time from
    23.3.1999 till his regularization as Assistant Engineer on
    29.4.2005. His orders on 29.4.2005 appointing him as an
    Assistant Engineer on regular basis also stipulated that he
    would be on probation for two years. The applicant at the       D
    time of such regularization on 29.4.2005 did not challenge
    the same nor did he make a representation at that time
    for treating his previous service on ad-hoc basis from
    23.3.99 to 29.4.2005 as regular service. He accepted the
    order as per Annexure-A/1 together with the probation of        E
    two years period. Having done this he cannot now come
    and make a claim that his entire period from 23.3.99
    onwards should be regularized so that he can avail of the
    recruitment rules for being promoted as Executive
    Engineer on the promotion quota. As per recruitment of          F
    Executive Engineer, the applicant is not eligible since 8
    years of regular service is required."

     The Tribunal thus opined that the respondent had not made
any case for quashing the steps taken by the U.P.S.C. for filling
up the post of the Executive Engineer (Mechanical) through          G
direct recruitment as recruitment rules.

    7. Against the judgment of the Tribunal, the respondent filed
the Writ Petition in the High Court of Calcutta (District :
Andaman). The High Court has allowed the Writ Petition and          H
    266        SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A   modified the order of the Tribunal by directing that the
    respondent be appointed as Executive Engineer after observing
    all other formalities. This direction is given by the High Court
    as a special case, without setting it as precedence, as is clear
    from the operative portion of this order:
B
          "In this case the petitioner by way of a stop gap
          arrangement worked in an ad-hoc basis which in other
          words amounted to a permanent arrangement since he
          was allowed to perform for a long time since the post is
          still vacant. There is no reason as to why the petitioner who
c         had put in such a length of service should be denied an
          opportunity of being promoted in the absence of any
          adverse situation against him.

          Keeping in view peculiar facts and circumstances of the
D         present case, without setting it as a precedence and as a
          very special case more so as the Petitioner has been
          working since 1990 till date in the capacity of Assistant
          Engineer which is a feeder post of the Executive Engineer
          (Mechanical), we would direct that he be appointed as
E         Executive Engineer (Mechanical) in the establishment of
          the Respondent No.1 after observing all other formalities."

       8. We are unable to appreciate the aforesaid approach
  of the High Court. It is not disputed before us that as per the
  extant rules for promotion to the post of Executive Engineer
F (Mechanical) 8 years regular service as Assistant Engineer is
  imperative. The Rules do not provide for any relaxation in this
  behalf. This is clear from the reading of the said rules which
  provide for appointment to the post of Executive Engineer
  (Mechanical). As per the Recruitment Rules, post of Executive
G Engineer (Mechanical) is a selection post. The mode of
  recruitment stated in the Rules is as under:

                "By promotion failing which by transfer on deputation
          (including short-term contract) and failing both by direct
H         recruitment."
    UNION OF INDIA & ORS. v. GR.RAMA KRISHNA                   267
                  [A.K. SIKRI, J.]
      The Recruitment Rules also stipulate eligibility condition in   A
all the three circumstances, namely, promotion, transfer on
deputation as well as direct recruitment. In so far as filling up
of this post by way of promotion is concerned, following
requirements are stipulated for a candidate to be eligible in that
category:                                                             B

     "PROMOTION:

     Assistant Engineer (Mechanical) with 8 years regular
     service in the grade."
                                                                      c
     9. From the aforesaid, it becomes apparent that there are
three alternate modes of recruitment to the Post, namely, (1)
by promotion, failing which (2) by transfer on deputation
(including short term contract) and. failing both (3) by direct
recruitment. No doubt, if some departmental candidate is              o
available and eligible to be considered, the promotion method
is to be resorted to in the first instance. However, no
departmental candidate was available. Concededly, the
 respondent had not completed 8 years regular service as
Assistant Engineer. In such circumstances only out of sympathy        E
the High Court could not have given the impugned direction.
This judicial sympathy resulting into a right in favour of
 respondent to appoint him contrary to the recruitment rules
framed under proviso to Article 309 of the Constitution of India
which are statutory in nature is clearly misplaced and needs to
                                                                      F
be denounced. Such a direction is clearly unsustainable and
is accordingly set aside. As a result, the appeal is allowed
restoring the order of the Tribunal dismissing the O.A. filed by
the respondent. No costs.

B.B.B.                                           Appeal allowed.      G




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