The Supreme Court set aside the High Court’s direction and affirmed that promotees who were ad hoc promoted to Deputy Collector are entitled to have that service counted for seniority, provided the promotion fell within the statutory vacancy quota, even though the required commission consultation was omitted.
Background & Facts
The Dispute
The State of Uttarakhand (appellant) challenged the entitlement of a group of officers - originally appointed as Naib Tehsildars - to count their ad hoc service as Deputy Collectors for seniority purposes. The promotees sought regularisation of their appointment dated 01.10.2007 and the deletion of a two-year probation condition.
Key Facts
- 17.02.2006: Uttaranchal Civil Services (Executive Branch) Rules, 2005 were notified.
- 01.07.2007: The promotees were confirmed as permanent Tehsildars.
- 12.09.2007: Departmental Promotion Committee (DPC) met and noted a shortage of civil service officers, recommending ten Tehsildars for ad hoc promotion to Deputy Collector.
- 01.10.2007: The promotees were promoted to Deputy Collector on a stop-gap basis.
- 06.12.2007: Additional Secretary forwarded a requisition for regular promotion of Deputy Collectors.
- 21.05.2008: The Uttarakhand Public Service Commission sought information on filling Deputy Collector posts by promotion.
- 26.12.2004: Advertisement for direct recruitment to Deputy Collector was issued; direct recruits were appointed in August 2009.
- 08.04.2010: Commission promoted 15 permanent Tehsildars to Deputy Collector.
- 27.04.2011: Writ Petition No. 113 of 2010 ordered review of the 2010 promotion order.
- 07.05.2012: Promotees were promoted with effect from this date after the commission’s review.
- Writ Petition (S/B) No. 68 of 2013: Promotees sought regular promotion effective from 01.10.2007 and removal of probation.
- 08.08.2019: High Court directed the State to revise the seniority list if vacancies existed for 2007-2008, with a four-month deadline.
- Civil Appeals No. 3070, 3071, 3072, 4452 of 2024: The State and various parties appealed the High Court order.
- 29.07.2026: Supreme Court delivered the present judgment.
Procedural History
- 08.08.2019: High Court judgment directing revision of seniority list.
- Civil Appeal No. 3070 of 2024: Filed by the State challenging the High Court order.
- Civil Appeal No. 3071 of 2024: Filed by the promotees seeking confirmation of their entitlement.
- Civil Appeal No. 3072 of 2024 and Civil Appeal No. 4452 of 2024: Filed by direct recruits contesting the promotees’ claim.
Parties' Positions
- State (Appellant): Argued that ad hoc promotions were stop-gap, not within the promotee quota, and that lack of commission consultation rendered the service non-countable.
- Promotees (Respondents): Contended that 19 vacancies existed in the promotee quota for 2007-2008, that the DPC recommendation was valid, and that the consultation requirement under Regulation 5(a) was directory, not mandatory.
- Direct Recruits (Intervenors): Asserted that the promotees’ claim was barred by the decision in Vinod Giri Goswami v. State of Uttarakhand.
Relief Sought
The promotees sought (i) declaration that their ad hoc service from 01.10.2007 be counted for seniority, (ii) regular appointment as Deputy Collector effective from that date, and (iii) issuance of a revised seniority list within a specified period.
The Legal Issue
The central questions were: (i) Whether Regulation 5(a) of the 2003 Regulations was complied with, and if non-compliance invalidates the ad hoc appointments; and (ii) Whether the promotees are entitled to the benefit of the proviso to Rule 24(4) of the Uttaranchal Civil Services Rules, 2005 for seniority calculation.
Arguments Presented
For the State/Appellant
The State relied on the literal wording of Regulation 5(a) and Rule 24(4), arguing that the mandatory “shall” language required prior consultation with the Commission. It submitted that the promotees exceeded the promotee quota, that the ad hoc promotion was a temporary stop-gap, and that the two-year probation condition was a statutory safeguard.
For the Promotees/Respondents
The promotees invoked the Montreal Street Railway test, citing Manbodhan Lal Srivastava to argue that the consultation requirement is directory. They produced communications showing 19 vacant promotee posts for 2007-2008, demonstrating that their promotion fell within the quota. They further relied on Suraj Parkash Gupta v. State of J&K and P. Rammohan Rao to show that failure of the State to consult does not invalidate the appointment.
The Court's Analysis
The Court first examined whether Regulation 5(a) imposed a mandatory or directory obligation. Referring to the classic test from Montreal Street Railway Co. v. Normandin, the Court held that where a provision uses “shall” but concerns a public duty, the provision is to be read as directory if strict enforcement would cause injustice. The Court applied the reasoning of Manbodhan Lal Srivastava, concluding that the consultation requirement is directory; non-consultation does not render the appointment void.
"The word ‘shall’ recurs in almost every clause of Article 320; if consultation under Article 320(3)(c) were mandatory, every other clause of that Article would have to be treated as equally mandatory, so that an appointment made without strictly observing each of them would stand invalidated to the detriment of the appointee."
The Court then turned to the vacancy quota. Evidence from the Commission’s communication dated 16.04.2012 showed 19 vacant promotee posts for the 2007-2008 recruitment year. This satisfied the requirement that promotions be within the promotee quota. Consequently, the promotees’ ad hoc service fell under the proviso to Rule 24(4), which allows the entire continuous officiating service to be counted for seniority when later regularised.
The Court distinguished Vinod Giri Goswami on the ground that the earlier case involved a lack of continuous service within the promotee quota, whereas here continuous service and quota compliance were established. The Court also reiterated that the State’s own inaction cannot be used to defeat the employees’ rights.
The Verdict
The Supreme Court allowed Civil Appeal No. 3071 of 2024 filed by the promotees and dismissed Civil Appeals No. 3070, 3072 and 4452 of 2024. The promotees are entitled to regular appointment as Deputy Collectors effective from 01.10.2007. The State must issue a revised seniority list of Deputy Collectors within three months from the date of judgment. No order as to costs was made.
What This Means For Similar Cases
Consultation Requirements Are Directory
- Courts will treat statutory “shall” provisions requiring commission consultation as directory where strict enforcement would cause injustice.
- Failure by the government to obtain consultation does not invalidate an otherwise regular appointment.
Vacancy Quota Must Be Demonstrated
- Parties must produce concrete evidence of vacancy numbers within the promotee quota to claim benefit under Rule 24(4).
- Communications from the commission or government records are decisive.
Ad Hoc Service Counts When Regularised
- Continuous officiating service rendered within the promotee quota is creditable for seniority once the appointment is regularised, even if the original promotion was ad hoc.
- Practitioners should advise clients to preserve service records and seek timely regularisation to secure seniority benefits.
