State of Uttarakhandv.Jagdish Chandra Kandpal & Ors

State's Default Cannot Defeat Employee's Service Rights: Supreme Court on Counting Ad Hoc Service for Seniority

Case Snapshot

Case Name: State of Uttarakhand v. Jagdish Chandra Kandpal & Ors.

Citation: 2026 INSC 759

Bench: Justice Pamidighantam Sri Narasimha and Justice Alok Aradhe

Date of Judgment: July 29, 2026

Area of Law: Service Law, Constitutional Law, Administrative Law, Seniority

Judgment in Brief

The Supreme Court allowed the appeal filed by promotees and dismissed the appeals filed by the State and direct recruits, holding that promotees are entitled to count their ad hoc service for the purposes of computing seniority. The promotees were appointed as Deputy Collectors on an ad hoc/stop-gap basis on October 1, 2007, and continued in service until they were regularly promoted on May 7, 2012.

The Court held that the requirement of consultation with the Public Service Commission under Regulation 5(a) of the 2003 Regulations is directory, not mandatory, relying on the classic test laid down in Montreal Street Railway Co. v. Normandin and the consistent view of this Court in Manbodhan Lal Srivastava v. State of U.P.. The State's failure to consult the Commission for over several years could not be used to deny the promotees the benefit of Rule 24(4) of the Uttaranchal Civil Services (Executive Branch) Rules, 2005, which provides that where a person's promotion is subsequently approved by the Commission, the entire continuous officiating service shall be taken into consideration for seniority.

The Court further found that 19 vacancies existed in the promotees' quota for the recruitment year 2007-2008, as evidenced by the Commission's communication dated April 16, 2012. Therefore, the promotees were appointed within their quota and were entitled to regular appointment with effect from October 1, 2007.

Relevant Facts

The Rules: The Uttaranchal Civil Services (Executive Branch) Rules, 2005 (Rules) were notified on February 17, 2006. The cadre of Deputy Collector comprised 80 posts, with 50% filled by direct recruitment and 50% by promotion from Tehsildars.

Initial Appointments: The promotees were originally appointed as Naib Tehsildars and confirmed as permanent Tehsildars on July 1, 2007.

Ad Hoc Promotions: On September 12, 2007, the DPC noted an acute shortage of Civil Service Officers and recommended 10 Tehsildars, including the promotees, for promotion to Deputy Collector on an ad hoc basis. The promotees were promoted on October 1, 2007, as a "stop-gap arrangement" until direct recruits reported.

Direct Recruitment: The direct recruits were selected and appointed in August 2009 pursuant to an advertisement dated December 26, 2004.

Regular Promotions: The Commission promoted 15 permanent Tehsildars to Deputy Collectors on April 8, 2010. The promotees filed a writ petition, and the Commission reviewed the promotions and promoted the promotees on May 7, 2012.

The Dispute: The promotees sought regular promotion with effect from October 1, 2007, and the deletion of the probation condition. The direct recruits opposed this, arguing that the ad hoc appointments were irregular and not made in accordance with the Rules.

High Court's Decision: The High Court held that the promotees were entitled to the benefit of regular appointment from October 1, 2007, but only if vacancies existed in the promotees' quota, leaving the question of vacancies to be examined by the State Government.

Issues Before the Court

1. Whether Regulation 5(a) of the 2003 Regulations, requiring consultation with the Public Service Commission for temporary/officiating appointments exceeding one year, was complied with, and if not, the effect of non-compliance?

2. Whether the promotees are entitled to the benefit of proviso to Rule 24(4) of the Rules, which permits counting of entire continuous officiating service for seniority where the promotion is subsequently approved by the Commission?

3. Whether the promotees were promoted within their quota, i.e., whether vacancies existed in the promotee quota for the recruitment year 2007-2008?

Legal Framework

• Uttaranchal Civil Services (Executive Branch) Rules, 2005 (Rules):
  Rule 3(i): Defines "substantive appointment" as an appointment not being ad hoc, made after selection in accordance with the rules.
  Rule 24(1): Enables appointment on a temporary or ad hoc basis from the list prepared under Rule 16.
  Rule 24(4): Provides that where a person was promoted and his promotion is subsequently approved by the Commission, the entire continuous officiating service rendered by him on a post within the promotees' quota shall be taken into consideration for seniority.

• Uttaranchal Public Service Commission (Limitations of Functions) Regulations, 2003 (2003 Regulations):
  Regulation 5(a): Where a temporary or officiating appointment is made to a post within the purview of the Commission, if the person appointed is not likely to hold the post for more than one year, the person shall not hold the post for a total continuous period of more than one year without the Commission being consulted.

• Article 320(3)(c) of the Constitution of India: Requires consultation with the Public Service Commission in matters of recruitment and promotion.

Important Precedents Relied Upon

1. Montreal Street Railway Co. v. Normandin

Laid down the classic test for deciding whether a statutory requirement is mandatory or directory. Where a provision concerns the performance of a public duty, and treating an act done in breach of that duty as void would cause serious general inconvenience or injustice to persons who have no control over the authority, the provision has to be read as directory only.

2. Biswanath Khemka v. The King Emperor

Applied the Montreal Street Railway test and held that even a provision using emphatic prohibitory language, requiring consultation between public authorities, was directory. Non-compliance did not invalidate an appointment that was otherwise regular and valid.

3. Manbodhan Lal Srivastava v. State of U.P.

The key precedent. The requirement of consultation with the Public Service Commission under Article 320(3)(c) of the Constitution was held to be directory, not mandatory, so that non-compliance does not invalidate the proceedings or the final order. The Court gave several reasons:

• The Constitution does not provide that non-compliance shall invalidate proceedings.

• Treating acts without consultation as void would cause serious inconvenience and injustice.

• The word "shall" does not invariably carry a mandatory effect.

4. Suraj Parkash Gupta & Ors. v. State of J&K & Ors.

Applied the Manbodhan Lal Srivastava framework to a default identical to the present one—a failure of the State Government to refer ad hoc/stop-gap promotions to the Public Service Commission for years. Held that the delay was caused by the State's own inaction, not by any fault of the employees, and the officiating service would be counted once the appointment is later regularised.

5. Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra & Ors.

Held that once an appointment is regularised, the period of ad hoc service may be counted for seniority.

6. Aghore Nath Dey & Ors.

Upheld the principle that ad hoc service can be counted for seniority where the appointment is later regularised.

7. P. Rammohan Rao

Held that delay in regularisation caused by the Government's own default supports, rather than defeats, the employee's claim.

8. Vinod Giri Goswami v. State of Uttarakhand

The direct recruits relied on this decision. The Court distinguished it, holding that in that case, there was no finding that the promotees had continuously worked within the promotee quota. However, the Court noted that the decision also held that promotees are entitled to count ad hoc service according to the proviso to Rule 24(4) of the Rules, provided they have continuously worked till regularly promoted within the promotee quota.

Court's Reasoning and Analysis

I. Regulation 5(a) of the 2003 Regulations is Directory, Not Mandatory

The Court began by examining whether the requirement of consultation with the Commission under Regulation 5(a) of the 2003 Regulations was mandatory or directory.

The Court's Test: Applying the classic test from Montreal Street Railway Co. v. Normandin, the Court held that:

• The provision concerns the performance of a public duty.

• Treating acts done without consultation as void would cause serious general inconvenience and injustice to persons who have no control over the authority responsible for the duty.

• The provision must be read as directory.

The Court's Reasoning:

• Regulation 5(a) uses the word "shall," but the use of "shall" does not invariably carry a mandatory effect.

• Neither the Regulation nor the Rules provide, expressly or by necessary implication, that failure to consult the Commission renders the appointment or service void.

• The failure to consult the Commission was the result of the State Government's inaction, not any fault of the promotees.

Application of Manbodhan Lal Srivastava: The Court applied the reasoning from Manbodhan Lal Srivastava, which held that consultation with the Public Service Commission under Article 320(3)(c) is directory. The reasons given in that case apply with full force:

1. The Constitution does not provide that non-compliance shall invalidate proceedings.

2. Treating acts without consultation as void would cause serious inconvenience and injustice.

3. The word "shall" does not invariably carry a mandatory effect.

The Court's Conclusion: "The default of consultation does not invalidate the ad hoc appointments by way of ad hoc promotions of the promotees to the post of Deputy Collector."

II. The State Cannot Take Advantage of Its Own Default

The Court applied the principle from Suraj Parkash Gupta that delay in regularisation caused by the Government's own default supports, rather than defeats, the employee's claim.

The Court's Observation: "It would not be fair to let the State take advantage of its own continuing default by treating the promotees' ad hoc appointment... as bad in law."

Reasoning:

• The promotees had no control over the State Government's continuing failure over several years to make the reference required by Regulation 5(a).

• The failure to consult the Commission was the result of the State Government's inaction.

• The promotees continued to render service and were eventually regularised.

• To deny them the benefit of their service would be to allow the State to benefit from its own wrong.

III. The Promotees Were Appointed Within Their Quota

The Court examined whether the promotees were appointed within their quota, i.e., whether vacancies existed in the promotee quota for the recruitment year 2007-2008.

The Evidence:

• Communication dated April 16, 2012, from the Commission to the State Government unequivocally disclosed that for the recruitment year 2007-2008, there were 19 vacancies under the promotee quota.

• The State Government's own counter affidavit stated that requisition was sent on December 26, 2007, for appointment to 15 posts by promotion.

• The DPC proceeding dated September 12, 2007, could not be relied upon, as the subsequent communication dated December 6, 2007, indicated that only 19 promotees were working against 40 posts reserved for promotees.

The Court's Finding: "The inevitable conclusion is that the promotees were appointed on the posts of Deputy Collector by way of ad hoc promotion within their quota."

The High Court's Error: The High Court erred in directing the State Government to determine the vacancies of Deputy Collector in the promotee quota. The evidence on record clearly established that vacancies existed.

IV. The Promotees Are Entitled to Benefit of Rule 24(4) of the Rules

Rule 24(4) of the Rules provides that where a person was promoted and his promotion is subsequently approved by the Commission, the entire continuous officiating service rendered by him on a post within the promotees' quota shall be taken into consideration for seniority.

The Court's Finding:

• The promotees were promoted on an officiating basis on October 1, 2007.

• They rendered service continuously until they were regularly promoted on May 7, 2012.

• They were appointed within their quota.

• Their promotions were subsequently approved by the Commission (on May 7, 2012).

The Court's Conclusion: "The promotees are held entitled to benefit of Rule 24(4) of the Rules."

V. Distinction from Vinod Giri Goswami

The direct recruits relied on Vinod Giri Goswami v. State of Uttarakhand to argue that the controversy was covered.

The Court's Distinction: In Vinod Giri Goswami, the Court found that the benefit of Rule 24(4) could not be extended in the absence of a finding that the promotees had continuously worked within the promotee quota. However, the decision also held that promotees are entitled to count ad hoc service according to the proviso to Rule 24(4), provided they have continuously worked till regularly promoted within the promotee quota.

The Court's Conclusion: In the present case, the evidence clearly established that the promotees had continuously worked within their quota. Therefore, the decision in Vinod Giri Goswami was of "no assistance to the direct recruits."

Ratio Decidendi and Key Legal Principles

1. Consultation with Public Service Commission is Directory, Not Mandatory

The requirement of consultation with the Public Service Commission under Article 320(3)(c) of the Constitution and similar provisions (such as Regulation 5(a) of the 2003 Regulations) is directory, not mandatory. Non-compliance does not invalidate the appointment or service, where the provision does not expressly or impliedly provide for such invalidation.

2. The State Cannot Benefit from Its Own Default

Where the State Government fails to consult the Commission due to its own inaction, it cannot be permitted to take advantage of its own wrong. Delay in regularisation caused by the Government's default supports, rather than defeats, the employee's claim.

3. Entire Continuous Officiating Service Counts for Seniority

Under Rule 24(4) of the Rules, where a person was promoted and his promotion is subsequently approved by the Commission, the entire continuous officiating service rendered by him on a post within the promotees' quota shall be taken into consideration for seniority.

4. Ad Hoc Service Within Quota Counts

Ad hoc/officiating service rendered within the promotees' quota, followed by regularisation, counts for seniority. The employee is entitled to the benefit of the service rendered from the date of initial ad hoc appointment.

5. The Word "Shall" is Not Conclusive

The use of the word "shall" in a statutory provision does not invariably carry a mandatory effect. Whether a provision is mandatory or directory depends on the intention behind it, gathered from its language, nature, design, and the consequences of construing it one way or the other.

6. Test for Mandatory vs. Directory

A provision is directory if:

• It concerns the performance of a public duty.

• Treating acts done in breach as void would cause serious inconvenience or injustice to persons who have no control over the authority.

• The provision does not prescribe a consequence for non-compliance.

7. Employees Must Be Protected from State's Inaction

Where employees have rendered service in good faith and their appointments were made by the State, the employees must be protected from the consequences of the State's own inaction or negligence.

Important Court Observations

• "It would not be fair to let the State take advantage of its own continuing default by treating the promotees' ad hoc appointment... as bad in law."

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

• "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)."

• "The inevitable conclusion is that the promotees were appointed on the posts of Deputy Collector by way of ad hoc promotion within their quota."

• "The High Court, therefore, erred in directing the State Government to determine the vacancies of Deputy Collector in the promotee quota for the year 2007-2008."

• "The promotees are held entitled to benefit of Rule 24(4) of the Rules."

• "The aforesaid decision [Vinod Giri Goswami] is of no assistance to the direct recruits."

Final Outcome

Promotee Appeal Allowed: Civil Appeal No. 3071 of 2024 filed by the promotees was allowed.

State and Direct Recruit Appeals Dismissed: Civil Appeal No. 3070 of 2024 (State), Civil Appeal No. 3072 of 2024 (direct recruits), and Civil Appeal No. 4452 of 2024 (direct recruits) were dismissed.

Declaration: The promotees are entitled to regular appointment on the post of Deputy Collector with effect from October 1, 2007.

Direction to State: The State Government shall issue a revised seniority list of Deputy Collectors within a period of three months from the date of the judgment.

Clarification: The judgment shall have no bearing on the claims of interveners who have been promoted to the post of Deputy Collectors in subsequent years.

Costs: No order as to costs.

Practical Impact and Legal Strategy

Why the Judgment Matters

1. Directory Nature of Consultation Requirements

The judgment reaffirms that consultation requirements with the Public Service Commission are directory, not mandatory. This is a significant principle that protects employees from being prejudiced by the State's failure to consult the Commission.

2. State Cannot Benefit from Its Own Default

The judgment establishes that the State cannot benefit from its own inaction or negligence. Delay in regularisation caused by the State's default supports, rather than defeats, the employee's claim.

3. Counting of Ad Hoc Service for Seniority

The judgment clarifies that ad hoc/officiating service within the promotees' quota, followed by regularisation, counts for seniority under Rule 24(4). Employees are entitled to the benefit of service from the date of initial ad hoc appointment.

4. Protection of Employees

The judgment protects employees who have rendered service in good faith from the consequences of the State's inaction. This is in line with the principle that employees should not suffer due to administrative delays.

5. Practical Test for Mandatory vs. Directory

The judgment provides a clear test for distinguishing between mandatory and directory provisions, relying on the classic Montreal Street Railway test.

How Advocates and Litigants May Rely Upon It

For Employees/Promotees:

• Cite this judgment to claim counting of ad hoc service for seniority

• Argue that consultation requirements with the Commission are directory, not mandatory

• Rely on the principle that the State cannot benefit from its own default

• Claim regular appointment from the date of initial ad hoc appointment

For the State/Employer:

• Must ensure timely consultation with the Commission

• Cannot use the State's own inaction to defeat employees' claims

• Must count ad hoc service within the quota for seniority

For Advocates:

• Cite this judgment to argue for the directory nature of consultation requirements

• Rely on the principle that the State cannot benefit from its own default

• Use the test for mandatory vs. directory provisions

• Cite the judgment to argue for counting ad hoc service for seniority

Can It Be Cited Before High Courts, Tribunals, or Subordinate Courts?

Yes, absolutely. This is a judgment of the Supreme Court of India (2026 INSC 759) and constitutes a binding precedent under Article 141 of the Constitution of India. It can be cited before:

• The Supreme Court of India

• High Courts

• Central Administrative Tribunal (CAT)

• State Administrative Tribunals

• Subordinate courts

• Any authority exercising service jurisdiction

Practical Implications for Future Litigation

1. Directory Nature of Consultation

Consultation requirements with the Public Service Commission are directory. Failure to consult does not invalidate appointments or service, where the provision does not prescribe such invalidation.

2. State Cannot Benefit from Its Own Default

The State cannot benefit from its own inaction or negligence. Employees must be protected from the consequences of administrative delays.

3. Counting of Ad Hoc Service

Ad hoc/officiating service within the quota, followed by regularisation, counts for seniority. Employees are entitled to the benefit of service from the date of initial ad hoc appointment.

4. The Test for Mandatory vs. Directory

A provision is directory if:

• It concerns the performance of a public duty.

• Treating acts in breach as void would cause serious inconvenience or injustice.

• No consequence for non-compliance is prescribed.

5. Evidence of Vacancies

Employees must produce evidence of vacancies in their quota to claim benefit of ad hoc service. The Commission's communications can serve as such evidence.

6. Distinction from Vinod Giri Goswami

The judgment distinguishes Vinod Giri Goswami and clarifies that the benefit of Rule 24(4) applies where the employee has continuously worked within the promotees' quota.

7. No Double Counting

Where employees have already been regularised, their ad hoc service counts for seniority. They are entitled to the benefit of all continuous service rendered within the quota.

8. Future Seniority Disputes

The judgment provides a framework for resolving seniority disputes between direct recruits and promotees. Ad hoc service within the quota, followed by regularisation, must be counted for seniority.

9. State's Obligation to Consult

While consultation is directory, the State still has an obligation to consult the Commission. Failure to consult can lead to administrative inconvenience, but does not invalidate appointments or service.

10. Protection of Employees' Service Rights

The judgment protects employees' service rights against the State's administrative failures. Employees who have rendered service in good faith will not be penalised for the State's inaction.