Ad Hoc Promotees Count Service from 2007 Despite State’s Failure to Consult Commission

A Supreme Court bench held that Uttarakhand’s failure to consult the Public Service Commission was directory, not mandatory, entitling promotee Deputy Collectors to seniority from their 2007 ad hoc appointment.

The Supreme Court has held that ten Tehsildars promoted on an ad hoc basis as Deputy Collectors in Uttarakhand on 01.10.2007 are entitled to count that entire period of continuous service for seniority purposes, with their regular appointment treated as effective from that date. A bench of Justice Pamidighantam Sri Narasimha and Justice Alok Aradhe found that the State Government’s failure to refer the promotions to the Uttarakhand Public Service Commission, as required by Regulation 5(a) of the Uttaranchal Public Service Commission (Limitations of Functions) Regulations, 2003, was a directory requirement whose breach could not invalidate the appointments. Allowing the promotees’ appeal and dismissing the State’s and direct recruits’ cross-appeals, the Court directed the State to issue a revised seniority list of Deputy Collectors within three months.

How the Dispute Reached the Court

The Uttaranchal Civil Services (Executive Branch) Rules, 2005 govern recruitment to the post of Deputy Collector in the State. The cadre comprises 80 posts, split equally between direct recruitment and promotion from the Tehsildar cadre. The respondent promotees were confirmed as permanent Tehsildars by 01.07.2007.

In September 2007, a Departmental Promotion Committee noted an acute shortage of Civil Service Officers and recommended ten Tehsildars, including the promotees, for ad hoc promotion to Deputy Collector. On 01.10.2007 they were promoted as a “stop-gap arrangement” pending direct recruitment by the Commission. A separate batch of direct recruits was appointed in August 2009 pursuant to an advertisement issued in December 2004.

In April 2010, the Commission promoted fifteen permanent Tehsildars as Deputy Collectors, omitting the promotees. After a writ petition and a court-directed review, the Commission eventually promoted the promotees by an order dated 07.05.2012, making that date the effective date of regular appointment. The promotees challenged the 2012 effective date and the imposition of a two-year probation period, seeking recognition of their service from 01.10.2007. The direct recruits sought impleadment and contested the promotees’ seniority claims.

The High Court of Uttarakhand at Nainital, by a judgment dated 08.08.2019 in Writ Petition (S/B) No. 68 of 2013, found in the promotees’ favour in principle but left the question of whether sufficient vacancies existed in the promotee quota for 2007–2008 to be determined by the State Government. The State, the direct recruits, and the promotees each filed appeals before the Supreme Court.

The Two Issues Before the Court

The bench framed the controversy around two questions. First, whether Regulation 5(a) of the 2003 Regulations was complied with, and if not, what the consequence of non-compliance was. Second, whether the promotees were entitled to the benefit of the proviso to Rule 24(4) of the Rules, which allows a person whose ad hoc promotion is subsequently approved by the Commission to count the entire continuous officiating service rendered within the promotee quota.

Consultation Requirement Was Directory, Not Mandatory

The Court accepted that the promotees had continued in ad hoc capacity for well beyond one year without the Commission being consulted, contrary to Regulation 5(a). However, it held the requirement was directory.

The bench traced the applicable test to the Privy Council’s decision in Montreal Street Railway Co. v. Normandin (1917 AC 170): where a provision concerns performance of a public duty, and treating a breach as void would cause serious general inconvenience or injustice to persons who had no control over the authority responsible, the provision is to be read as directory. Non-compliance may attract consequences but does not invalidate the act done.

The Court then applied this reasoning through a line of Indian authority. In Biswanath Khemka v. The King Emperor (1945), the Federal Court treated a consultation requirement using emphatic prohibitory language as directory. This Court in State of Uttar Pradesh v. Manbodhan Lal Srivastava (1957) held that the obligation to consult the Public Service Commission under Article 320(3)(c) of the Constitution was directory, giving five independent reasons: no express provision invalidating non-compliance; serious inconvenience to appointees who have no control over the referral process; the impracticality of treating every clause of Article 320 as equally mandatory; the word “shall” does not invariably mean mandatory; and the requirement does not by itself confer an independent enforceable right on the employee.

The bench found these reasons applied with equal force to Regulation 5(a) and to Rule 24(4). Neither provision states that failure to obtain Commission consultation renders the appointment or the service rendered under it void. Treating the absence of consultation as fatal would cause exactly the injustice Manbodhan Lal Srivastava warned against: the promotees had no control whatsoever over the State Government’s continuing failure over several years to make the required reference.

The Court also relied on Suraj Parkash Gupta v. State of J&K (2000) 7 SCC 561, where an identical default—failure of the State to refer ad hoc promotions to the Public Service Commission for years—was held not to bar counting of officiating service once the appointment was later regularised. The delay was caused by State inaction, not employee fault, and the relevant regulation prescribed a time-limit for reference without attaching a penalty of nullity for missing it. This approach was described as consistent with Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra (1990) and State of West Bengal v. Aghore Nath Dey (1993), and was recently reiterated in P. Rammohan Rao v. K. Srinivas (2025) 4 SCC 127, which held that delay in regularisation caused by the Government’s own default supports rather than defeats the employee’s claim.

On this reasoning, the Court held that the State could not be permitted to take advantage of its own continuing default by treating appointments recommended by a duly constituted DPC and eventually regularised by competent authority as bad in law. Non-consultation with the Commission did not disentitle the promotees to the benefit of the proviso to Rule 24(4).

Promotees Were Within Their Quota

The second issue required the Court to determine whether the ad hoc promotions of 01.10.2007 were made within the promotee quota, which is a condition for the benefit of the proviso to Rule 24(4) to apply.

The Court examined a communication dated 16.04.2012 from the Commission to the Principal Secretary of the Uttarakhand Government. That communication disclosed that for the recruitment year 2007–2008, there were 19 vacancies in the Deputy Collector promotee quota: 15 in the general unreserved category, 3 for Scheduled Castes, and 1 for Scheduled Tribes. A note dated 05.04.2007 indicated 15 posts of Deputy Collector were vacant for regular promotion. A further communication dated 06.12.2007 from the Additional Secretary to the Commission confirmed that against 40 posts reserved for promotee officers, only 19 promotee Deputy Collectors were working, leaving 15 posts to be filled by promotion. The State Government’s own counter affidavit averred that a requisition was sent on 26.12.2007 for appointment to 15 Deputy Collector posts by promotion, and no challenge was made to the Commission’s communication of 16.12.2012.

The Court held this material to be unambiguous. The promotees were appointed on posts within their quota, and the High Court had erred in leaving the vacancy question open for determination by the State Government. The conclusion that 15 vacancies were available for the recruitment year 2007–2008 was described as “axiomatic” on the record.

Distinguishing Vinod Giri Goswami

The direct recruits argued that the controversy was squarely covered by this Court’s earlier two-judge bench decision in Vinod Giri Goswami v. State of Uttarakhand (2020) 13 SCC 161, which had declined to extend the Rule 24(4) proviso to promotee officers because there was no finding that they had continuously worked within the promotee quota until regular promotion.

The bench rejected this argument. It read Vinod Giri Goswami as itself recognising that promotees are entitled to count ad hoc service under the proviso to Rule 24(4) provided two conditions are met: continuous working until regular promotion, and working within the promotee quota. Both conditions were satisfied on the facts before the Court. The earlier decision therefore gave no assistance to the direct recruits.

Order

The Court allowed Civil Appeal No. 3071 of 2024 filed by the promotees and dismissed Civil Appeal No. 3070 of 2024 filed by the State of Uttarakhand, Civil Appeal No. 3072 of 2024, and Civil Appeal No. 4452 of 2024 filed by the direct recruits. No order as to costs was made.

The promotees are held entitled to the benefit of regular appointment as Deputy Collectors with effect from 01.10.2007. The State Government was directed to issue a revised seniority list of Deputy Collectors within three months from the date of the judgment.

The judgment dated 08.08.2019 of the High Court of Uttarakhand at Nainital in Writ Petition (S/B) No. 68 of 2013 was modified to that extent. The Court clarified that the judgment would have no bearing on the claims of interveners promoted to Deputy Collector in subsequent years.