Research › Search › Judgment

Uttarakhand High Court · body

2011 DIGILAW 42 (UTT)

Hemant Kumar Upreti v. State of Uttarakhand

2011-01-06

BARIN GHOSH, V.K.BIST

body2011
Judgment Barin Ghosh, J. In the year 1983, petitioners as well as private respondents were appointed by the State of Uttar Pradesh, as Assistant Engineers in Public Works Department. In 1992, the State of Uttar Pradesh made Rules and thereby provided for hill sub cadre, amongst others, in the department in which the petitioners and the private respondents were working. Private respondents opted for hill sub cadre. Being members of the hill sub cadre, private respondents became entitled to be promoted to the posts available in hill sub cadre, whereas, petitioners who remained in the general cadre were not entitled to be considered for promotion to such posts available in the hill sub cadre. Inasmuch as, there were certain posts of Executive Engineers available in the hill sub cadre, private respondents were promoted to the posts of Executive Engineers. On 9th November, 2000, the State of Uttar Pradesh was bifurcated. On that date hill sub cadre stood abolished and any employee working in the hill sub cadre became an employee of State of Uttarakhand. Inasmuch as, petitioners were employees of the State of Uttar Pradesh, they, w.e.f. 9th November, 2000, became provisional employees of the State of Uttar Pradesh. The Central Government was asked to allocate such provisional employees of the State of Uttar Pradesh finally either to the State of Uttarakhand or to the State of Uttar Pradesh. In 2009, petitioners were finally allocated by the Central Government to the State of Uttarakhand. By reason of such allocation petitioners became employees of the State of Uttarakhand w.e.f. 9th November, 2000, and the same has also been indicated in the final allocation order of the petitioners. On and from 9th November, 2000, there is only one single cadre of Engineers in the Public Works Department in the State of Uttarakhand. 2. In terms of the Rules governing the service conditions of the employees of the State of Uttarakhand, seniority is fixed on the basis of initial substantive appointment. On 9th November, 2000, petitioners were Assistant Engineers, whereas private respondents, who were juniors on the basis of their substantive appointments, to the petitioners, were Executive Engineer 3. Petitioners went to the Public Services Tribunal, Uttarakhand. On 9th November, 2000, petitioners were Assistant Engineers, whereas private respondents, who were juniors on the basis of their substantive appointments, to the petitioners, were Executive Engineer 3. Petitioners went to the Public Services Tribunal, Uttarakhand. The Tribuna passed an order and thereby directed the State Government to ascertain the vacancies in the posts of Executive Engineers for the year 2000-2001 and thereupon to consider whether petitioners can be promoted to supply the said vacant posts. This exercise was done by the State Government in the year 2009. Petitioners were found suitable for being promoted. Accordingly, petitioners were promoted in the vacancies of 2000-2001, but in 2009. 4. Petitioners made a representation that their junior have been promoted earlier and, accordingly, they should be given notional promotion from the date their juniors were promoted. At that stage, the State Government found that an Assistant Engineer, belonging in the hill sub cadre and junior to the petitioners, were promoted in the year 2003. The State Government, accordingly, proponed the promotion of the petitioners to 2003. At that stage, the State Government did not consider the fact that each of the private respondents to in law was junior to the petitioners w.e.f 9th November, 2000, i.e. the date when the service became a single cadre service. Despite juniors to the petitioners were then holding superior posts and despite vacancies being available in the year 2000-2001, the petitioners were compared with a junior who was promoted in 2003, but not with the private respondents who, on 9th November, 2000, were holding a superior post despite being junior to the petitioners. It, therefore, appears that the State Government did not do what it was required to do in law and in accordance with the Rules made by it, namely, that if a senior is promoted subsequent to his junior, his promotion should relate back at least notionally to the date his junior was promoted and also refused to act on the basis of order of the Tribunal, which order was not challenged by the State Government. 5. We, accordingly, direct the State Government to propone the notional promotion of the petitioners to the post of Executive Engineer from 2003 to 9th November, 2000. 6. 5. We, accordingly, direct the State Government to propone the notional promotion of the petitioners to the post of Executive Engineer from 2003 to 9th November, 2000. 6. In the meantime, it appears that the private respondents having had served as Executive Engineers for the continued period of six years became entitled to be considered for promotion to the post of Superintending Engineer. It further appears that in 2007 a Departmental Promotion Committee considered the suitability of the private respondents for being promoted to the post of Superintending Engineer. They found that each of the private respondents is suitable for being so promoted. Accordingly, from 13th December, 2007, private respondents were provisionally promoted to the post of Superintending Engineer, subject to finalization of allocations of Engineers of the department by the Central Government. 7. In 2010, again a Departmental Promotion Committee considered the case of private respondents and found that they were entitled to be promoted to the post of Superintending Engineer w.e.f. 13th December, 2007. The Departmental Promotion Committee, in 2010, also considered the case of promotion of the petitioners and found that the petitioners are also eligible for being promoted to the posts of Superintending Engineer. Accordingly, promotions to the posts of Superintending Engineers were granted to petitioners w.e.f. 4th November, 2010. At that stage, the State proceeded on the basis that the petitioners became eligible for being considered for promotion to the posts of Superintending Engineers on 2nd April, 2009, after having had completed six years of service from the date they were notionally promoted to the post of Executive Engineer. Inasmuch as, petitioner should be deemed to be notionally promoted to the posts of Executive Engineers w.e.f. 9th November, 2000 in view of this judgment, it' must also be deemed that the petitioners became eligible for being considered for promotion to the posts of Superintending Engineers before 13th December, 2007, when the private respondents were promoted to the posts of Superintending Engineers. 8. We, accordingly, pre-pone notionally the ,date of promotion of the petitioners to the post of Superintending Engineer, as accorded in 2010, to 13th December, 2007. The writ petition is, accordingly, disposed of. All interim orders stand vacated.