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2014 DIGILAW 559 (UTT)

Prakash Chandra Pandey v. State of Uttarakhand

2014-12-09

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. The petitioner before this Court was appointed as a Stenographer in the Regional Cadre of Uttar Pradesh Transport Department in the year 1982 and being a member of the hill cadre, he was finally allocated to the State of Uttarakhand in the year 2001. These are all admitted facts. 2. Since 14.05.2002 the petitioner was given an ad-hoc promotion (for a period of six months) to a higher post of “Passenger Tax Superintendent” and since then he was performing the duties on the post of Passenger Tax Superintendent. Initially his appointment was for six months, but subsequent orders for extension were passed in regular intervals. The petitioner has been able to establish his claim before this Court that he was continuously officiating as a Passenger Tax Superintendent, though it was only vide order dated 30.01.2009 that he was given a regular promotion to the post of Passenger Tax Superintendent against the vacancy of 2001-2002. 3. The petitioner now claims promotion to the post of Passenger Tax Officer (Grade-I). The Rules applicable in the service and promotion of such employees, which is known as “Uttar Pradesh Transport Taxation (Subordinate) Service Rules, 1980” (hereinafter referred to as “Rules of 1980”), as adopted and applicable in the State of Uttarakhand. 4. The promotions have to be done under the Rules by the State Public Service Commission. The Government on its part had sent the name of the petitioner, along with other names, for approval or recommendation for conducting DPC for the post of Passenger Tax Officer (Grade-I). As per the Rules which are applicable in the present case, particularly, Rule 5 of Rules of 1980, the post of Passenger Tax, Goods Tax Officer are to be filled by way direct recruitment and the permanent Tax Superintendent / Passenger Tax/Goods Tax Superintendent can be filled by way of promotion inter alia from permanent Tax Superintendent / Passenger Tax / Goods Tax Superintendents “who have put in at least five years of continuous service as such.” Rule 5(1) of Rules of 1980 reads as under:- “5. Source of recruitment:- Recruitment to the various categories of posts in the service shall be made from the following sources- (1) Passenger Tax, Goods-Tax Officer – (i) By direct recruitment through the Commission. Source of recruitment:- Recruitment to the various categories of posts in the service shall be made from the following sources- (1) Passenger Tax, Goods-Tax Officer – (i) By direct recruitment through the Commission. (ii) By promotion through the Commission from amongst- (a) the permanent Tax Superintendent /Passenger Tax/Goods Tax Superintendents who have put in at least five years of continuous service as such: (b) the permanent Assistant Public Prosecutors who have put in at least five years of continuous service as such; and (c) the permanent Head Assistants, Head Clerks of the Transport Commissioner’s Office, who have put in at least five years of continuous service as such: Provided that as far as possible the recruitment shall be so arranged that 50 percent posts in the cadre are held by direct recruits and rest by promotion as follows- (a) Tax Superintendents/Goods Tax Superintendents/Passenger Tax Superintendents – 40 percent. (b) Assistant Public Prosecutors-5 percent. (c) Head Assistant/Head Clerks in Transport Commissioner’s Office- 5 percent.” 5. The State Public Service Commission sought a clarification from the Department vide its letter dated 30.04.2012 as to whether present petitioner had put in five years of substantive service as permanent Tax Superintendent or not. The State in its clarification dated 21.05.2012 said that the petitioner has been appointed in a substantive capacity only since 30.01.2009 and he was not granted a retrospective promotion from 2001-2002. Thereafter, the State Public Service Commission vide its letter dated 06.06.2012 directed respondent no. 2 to drop the name of the petitioner, since notional promotion has not been granted to the petitioner from 2001 and his service, as permanent Tax Superintendent, will only be calculated from 30.01.2009, and therefore, his name cannot be considered for promotion, as he has not put in five years of service. The Department too vide its order dated 07.11.2012 recalled the name of the petitioner from the list of candidates eligible for promotion. The petitioner being aggrieved filed this writ petition before this Court. 6. The case of the petitioner before this Court was that though he was formally confirmed or appointed on the post of Passenger Tax Superintendent vide order dated 30.01.2009 yet he has been working on this post since 2002 on the vacancy of 2001-2002. The petitioner being aggrieved filed this writ petition before this Court. 6. The case of the petitioner before this Court was that though he was formally confirmed or appointed on the post of Passenger Tax Superintendent vide order dated 30.01.2009 yet he has been working on this post since 2002 on the vacancy of 2001-2002. He has also been drawing his salary from 2002, and therefore on the “doctrine of continuous officiation” it cannot be said that he has not been continuously working as a permanent Passenger Tax Superintendent since 2002, and therefore, he has done five years of continuous service and liable to be considered. This Court vide order dated 26.06.2013 allowed the writ petition of the petitioner holding that the petitioner is eligible though the petitioner was actually appointed on 30.01.2009 but he has been given a continuous officiation precisely since he has been working on a substantive vacancy on the post of Passenger Tax Superintendent since 2001-2002 and consequently, the promotion order dated 30.01.2009 indicates that the appointment of the petitioner is on a vacancy of 2001-2002. Thus holding the petitioner eligible, the order was passed in his favour. 7. Consequent to the said determination, which was done by this Court in the earlier round of litigation on 26.06.2013, a review petition was filed before this Court by such employees, who were directly appointed as Transport Tax Superintendent (Grade-II) in the year 2005. Their case was that the petitioner had deliberately not impleaded them as a party and the petitioner was always shown junior to them. He is junior to them in the inter se seniority list and they were liable to be heard by this Court. 8. This Court rejected the review application of the applicants after calling objections from the other side. Aggrieved the review applicant filed Special Appeal before the Division Bench of this Court. The Division Bench in the said Special Appeal was of the view that though the benefit of “continuous officiation” has been rightly granted, yet what has not been determined by the Single Judge is as to the post on which the petitioner was working since 2002 was a post which was liable to be filled by way of promotion or by direct recruitment. Since, there was no such determination, the Division Bench vide order dated 24.04.2014 set aside the order passed by the learned Single Judge and remanded the matter for fresh determination. 9. While the learned Senior Counsel for petitioner Mr. Manoj Tiwari insists that the matter remand by the Division Bench on a limited issue i.e. whether the petitioner was promoted in the year 2002 on a promotional post or on the post of a direct recruitment and rest of the determination made by this Court in the earlier round of litigation was upheld by the Division Bench. 10. To its contrary, Mr. Rakesh Thapliyal, learned counsel for the intervenors would insists that the matter needs to be determined de novo, as the order passed earlier has been set aside by the Division Bench in toto. This Court is also of the view that the determination has to be made de novo without limiting as to whether petitioner was promoted on a promotional post or a post of direct recruitment as that would not be an “adjudication” of the dispute. 11. It is an admitted fact that on the post on which the petitioner was held was to be filled by way of promotion only. 12. This Court, therefore, gave a fresh hearing to the petitioner, State and State Public Service Commission as well as review applicant. The review applicants though have not been formally impleaded, as party, are also being heard as an intervenors. Their review petition and other objections are also made a part of pleading in this Court. 13. The issue before this Court is as to whether the petitioner was eligible for promotion to the post of permanent Passenger Tax Officer/Goods Tax Officer (Grade-I) or not. 14. Evidently under the Rules referred above, the post has to be filled by way of direct recruitment as well as by the promotion from three channels. One of the channels for promotion is from the feeding cadre i.e. of permanent Tax Superintendent/Goods Tax Superintendents, who have put five years of continuous service as such. What is the requirement under the law, therefore, is five years of continuous service. It does not speak of five years of continuous service on either on a substantive post or by way of substantive appointment. What is the requirement under the law, therefore, is five years of continuous service. It does not speak of five years of continuous service on either on a substantive post or by way of substantive appointment. In any case, the petitioner has been working that a substantive post since 2002, therefore, he has been continuously working as a permanent Tax Superintendent since 2002. Therefore, on the date the promotional exercise were undertaken i.e. in the year 2011-2012, the petitioner has done five years of continuous service. 15. The contention of the intervenors that petitioner have not done five years of service on a substantive post is totally misconceived. As far as the eligibility is concerned for the post of Passenger Tax Officer, the requirement is only five years of continuous service as such. Therefore, there can be no question that the petitioner is not eligible for promotion on the said post. The writ petition stands allowed to that extent. Though the actual appointment on is of 30.01.2009, yet the petitioner has to be given the benefit of “continuous officiation” for two reasons, firstly, the petitioner has been actually working on a substantive vacancy on the post of Passenger Tax Superintendent since 2001-2002. Secondly, even the promotion letter dated 30.01.2009 indicates that the date of appointment is 2001-2002 (i.e. the period when the vacancy came into existence). Therefore, the petitioner cannot be faulted if he has been confirmed later on 15.10.2011, on the post of Transport Tax Officer-II, as there are uncertainties regarding the confirmation in service particularly in government service. Moreover, there is no uniformity as regards of confirmation. It should have not been drawn adversely against the petitioner. Consequently, the writ petition deserves to be allowed and is hereby allowed. Petitioner is hereby treated to be a Passenger Tax Superintendent since 2002. 16. Having made the above determination, after rejecting the contention of the intervenors, the next aspect is as to what should be the criteria for promotion to the post of Transport Tax Officer (Grade-1). Here the procedure prescribed under Rule 17 of Rules of 1980 has to be adopted which talks of a combined select list. Rule 17 of Rules of 1980 reads as under:- “17. Here the procedure prescribed under Rule 17 of Rules of 1980 has to be adopted which talks of a combined select list. Rule 17 of Rules of 1980 reads as under:- “17. Combined select list - If appointment has to be made both by direct recruitment and by promotion, a combined select list shall be prepared by taking the names of candidates alternately from the lists prepared under Rule 15 and 16, the first name being from the list prepared under Rule 16. Provided that for preparing combined select list under this rule, the name of persons, selected for promotion shall be arranged in the following under:- (i) For the post of Passenger Tax Officer/Goods Tax Officers:- (a) Head Assistant/Head Clerks in order of their inter se seniority as determined on the basis of the date of their substantive appointment. (b) Tax Superintendents. (c) Passenger Tax Superintendent, Goods Tax Superintendents and Assistant Public Prosecutors in order of seniority as determined on the basis of the date of their substantive appointment.” 17. In the above rules, when a combined select list has to be prepared on the basis of the order of seniority as determined on the basis of the date of substantive appointment. The substantive appointment of petitioner is undoubtedly of 30.01.2009. The Rules being absolutely clear his placement in the combined select list, which has to be drawn by the respondent, while considering the promotion to the next higher post of Passenger Tax Officer (Grade-I), has to be on the date of substantive appointment of all eligible person, including the petitioner. 18. Having made the above determination the writ petition is disposed of accordingly. 19. No order as to costs.