'State Cannot Take Advantage Of Its Own Wrong': Supreme Court Holds Promotees Entitled To Count Ad Hoc Service For Seniority If Within Quota

"To treat the total absence of consultation of the Commission in the present case, as fatal to the promotees’ appointment would cause, exactly the kind of serious inconvenience and injustice to which Manbodhan Lal Srivastava (supra) refers, namely that the promotees had no control whatsoever over the State Government’s continuing failure, over a period of several years, to make the reference required by Regulation 5(a)." Supreme Court of India, in a significant ruling dated July 29, 2026, held that promotees are entitled to count their continuous ad hoc service for seniority if their appointment was within the promotee quota, even if the Public Service Commission was not consulted for the extension of their ad hoc term.

A bench of Justices Pamidighantam Sri Narasimha and Alok Aradhe emphasized that the State Government cannot be permitted to take advantage of its own inaction in consulting the Commission.

The dispute arose concerning the seniority rights of promotees in the cadre of Deputy Collectors in Uttarakhand. Promotees, originally Naib Tehsildars, were promoted on an ad hoc basis as Deputy Collectors on October 1, 2007, due to an acute shortage of officers. Direct recruits, appointed in August 2009, challenged the promotees' claim for seniority from their ad hoc promotion date. The promotees sought regular promotion from October 1, 2007, challenging a subsequent order making their promotion effective from May 7, 2012.

The primary questions before the Supreme Court were:

1. Whether Regulation 5(a) of the Uttaranchal Public Service Commission (Limitations of functions) Regulations, 2003 (2003 Regulations), which mandates consultation with the Commission for ad hoc appointments extending beyond one year, was complied with, and if not, the effect of such non-compliance.
2. Whether the promotees were entitled to the benefit of the proviso to Rule 24(4) of the Uttaranchal Civil Services (Executive Branch) Rules, 2005 (the Rules), which allows for counting continuous officiating service within the promotee quota for seniority.

Analysis of Compliance with Consultation Requirement

The Supreme Court first addressed whether the non-consultation with the Commission under Regulation 5(a) of the 2003 Regulations invalidated the promotees' ad hoc appointments. The promotees had continued as Deputy Collectors on an ad hoc basis from October 1, 2007, for a period exceeding one year without the mandated consultation with the Commission.

Mandatory vs. Directory Provisions

The Court meticulously examined the nature of the "shall" used in Regulation 5(a) regarding consultation. Referring to the classic test laid down by the Privy Council in Montreal Street Railway Co. v. Normandin and further applied by the Federal Court in Biswanath Khemka, the bench highlighted that when a provision concerns the performance of a public duty, treating a breach as void would cause serious inconvenience or injustice to persons who have no control over the authority, suggesting it should be read as directory.

The Court relied heavily on its earlier decision in Manbodhan Lal Srivastava, which held that the requirement of consultation with the Public Service Commission under Article 320(3)(c) of the Constitution is directory, not mandatory. This precedent was applied with full force to Regulation 5(a) of the 2003 Regulations and Rule 24(4) of the Rules.

State Cannot Benefit from its Own Inaction

The bench emphasized that neither Regulation 5(a) nor Rule 24(4) explicitly states that failure to obtain consultation or approval renders the appointment or service void. To treat the total absence of consultation as fatal would cause "serious inconvenience and injustice" to the promotees, who had no control over the State Government’s failure to make the required reference.

"The failure to consult the Commission was result of inaction of the State Government."

The Court reiterated the principle from Suraj Parkash Gupta & Ors. v. State of J&K & Ors. and other precedents, stating that where delay in regularization is caused by the Government’s own default, it supports the employee’s claim rather than defeats it. The Court concluded that "it would not be fair to let the State take advantage of its own continuing default by treating the promotees’ ad hoc appointment, recommended by a duly constituted DPC and eventually regularised by competent authority, as bad in law."

Entitlement to Benefit of Rule 24(4) of the Rules

The second crucial issue was whether the promotees were appointed within their quota, which is a prerequisite for counting ad hoc service under the proviso to Rule 24(4) of the Rules. This proviso stipulates that continuous officiating service rendered on a post "within the promotee quota" shall be considered for the purpose of seniority if the promotion is subsequently approved by the Commission.

Verification of Vacancies in Promotee Quota

Upon reviewing official communications, including one dated April 16, 2012, from the Commission to the Principal Secretary, Uttarakhand Government, the Court found conclusive evidence. This communication unequivocally stated that for the recruitment year 2007-2008, there were 19 vacancies under the promotee quota.

"Thus, it is axiomatic that 19 posts of Deputy Collectors were vacant in the recruitment year 2007-2008 which were to be filled by promotion."

Further documents, such as a note dated April 5, 2007, and a communication dated December 6, 2007, from the Additional Secretary, confirmed the availability of 15 vacant posts for promotion for the recruitment year 2007-2008. The Court rejected the argument that the promotees were in excess of their quota.

High Court's Error Rectified

The Supreme Court found that the High Court had erred in directing the State Government to re-determine the availability of vacancies in the promotee quota for 2007-2008, as the existing records clearly demonstrated the vacancies. Therefore, the promotees were held entitled to the benefit of Rule 24(4) of the Rules.

Distinguishing Vinod Giri Goswami

The Court also addressed the direct recruits' reliance on Vinod Giri Goswami, clarifying that the said decision did not extend the benefit of Rule 24(4) primarily due to the absence of a finding that promotees had continuously worked within the promotee quota. Since, in the present case, the promotees were found to be within their quota, Vinod Giri Goswami was held to be distinguishable and of no assistance to the direct recruits.

"The aforesaid decision is of no assistance to the direct recruits."

The Supreme Court concluded that the promotees were entitled to the benefit of regular appointment on the post of Deputy Collector with effect from October 1, 2007, the date of their initial ad hoc promotion. The State Government has been directed to issue a revised seniority list of Deputy Collectors within a period of three months from the date of the judgment. The Court clarified that this judgment would not affect the claims of interveners promoted in subsequent years.

Date of Decision: 29 July 2026