Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 702 (UTT)

NARESH KUMAR ARYA v. STATE OF UTTARAKHAND

2013-10-31

BARIN GHOSH, SERVESH KUMAR GUPTA

body2013
JUDGMENT BARIN GHOSH, C. J. (Oral) 1. Petitioner belongs to Scheduled Caste community. He is an Assistant Engineer. He was appointed as an ad hoc Assistant Engineer on 24th September, 2005. The ad hoc appointment was made having regard to the then immediate requirement of the State. He could not be substantively appointed on that date, inasmuch as, by that time, the State could not consult the Public Service Commission for promoting the petitioner to the post of Assistant Engineer, as is the requirement of the Rules. The Uttaranchal Irrigation Department Engineering Services (Civil / Mechanical) Group ‘A’ Service Rules, 2003, contemplate, amongst others, the posts of Executive Engineer. The posts of Executive Engineer are to be supplied by promotion from amongst the substantively appointed Assistant Engineers, who have completed 7 years’ service on the first day of the year of recruitment. The first day of the year of recruitment, in the instant case, was 1st July, 2011. As on 1st July, 2011, petitioner had not completed 7 years of service as Assistant Engineer. The recruitment Rules permitted the Government to relax any of the provisions contained therein. In exercise of such power, the Government gave a relaxation of completion of 3½ years’ service on the first day of the year of recruitment. Accordingly, any Assistant Engineer, who completed 3½ years’ service on 1st July, 2011, was eligible for being considered for promotion to the post of Executive Engineer. Despite that, petitioner was not considered for promotion. Accordingly, the present writ petition has been filed. 2. In the counter affidavit, the State has contended that, on 24th September, 2005, petitioner was appointed as an ad hoc Assistant Engineer and he was substantively appointed as Assistant Engineer on 14th July, 2008 after consultation with the Public Service Commission and the Rules required the substantively appointed Assistant Engineers to have completed 3½ years’ service, after taking into account the relaxation accorded, on the first day of the year of recruitment, i.e. on 1st July, 2011, and, since the petitioner had not completed 3½ years of service as on 1st July, 2011, his case for promotion to the post of Executive Engineer was not considered. 3. 3. The learned counsel for the petitioner has drawn our attention to the fact, which is not being disputed, that, since after the petitioner was appointed as an ad hoc Assistant Engineer and, until such time, he was substantively appointed as Assistant Engineer on 14th July, 2008; petitioner continued to function as and discharged the duties of Assistant Engineer. The learned counsel for the petitioner has drawn our attention to the Constitutional Bench judgment, rendered in the case of Direct Recruit Class II Engineering Officers’ Association vs. State of Maharashtra and others, reported in (1990) 2 SCC 715 , where it has been held that, if the initial appointment is not made by following the procedure laid down by the Rules, but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the Rules, the period of officiating service will be counted for the purpose of seniority. 4. The applicable Rule is as follows: “Executive Engineer, Civil or Mechanical - By promotion from amongst the substantively appointed Assistant Engineers in the Civil or Mechanical Branch, as the case may be, who have completed seven years’ service on the first day of the year of recruitment.” 5. Therefore, the requirement was that, on the first day of the year of recruitment, the candidate concerned must be a substantively appointed Assistant Engineer and he must have completed 7 years’ service, as aforesaid, after the relaxation, 3½ years’ service. In view of the judgment of the Hon’ble Supreme Court, referred to above, it is not possible for us to hold that the petitioner, as on 1st July, 2011, did not complete 3½ years’ service as an Assistant Engineer and there is no dispute that, as on that date, he was already a substantively appointed Assistant Engineer. 6. It has been brought on record that respondent No. 7 also belongs to Scheduled Caste community. It has been stated that, due to ill health, respondent No. 7 held out to the Department, on two occasions, that he is not interested to be promoted to the next higher post. It has been stated that, despite respondent No. 7 holding out to the Department that even, at the time of consideration of promotions being the subject matter of the writ petition, he is not inclined to be promoted; he has been promoted. It has been stated that, despite respondent No. 7 holding out to the Department that even, at the time of consideration of promotions being the subject matter of the writ petition, he is not inclined to be promoted; he has been promoted. Respondent No. 7 has entered appearance and has also filed an affidavit, where he has stated that, despite having been promoted, he has not accepted the promotion. It has not yet come on record, whether the request of respondent No. 7, not to promote him, has been accepted by the State or not. 7. Having regard to what has been stated above, we feel that there cannot be any impediment, now, for consideration of promotion of the petitioner to the post of Executive Engineer. Let a Departmental Promotion Committee be constituted within a period of three months from today to consider the case of the petitioner for promotion to the post of Executive Engineer. In the event, the Departmental Promotion Committee finds the petitioner fit for promotion and makes a recommendation and the same is accepted by the State Government, let promotion to the petitioner be given from the date such promotion will be given, but with notional effect from the date when respondent Nos. 4, 5 & 6 were promoted. 8. This disposes of the writ petition.