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2015 DIGILAW 462 (UTT)

RAJENDRA CHALISGAONKAR v. STATE OF UTTARAKHAND

2015-09-17

K.M.JOSEPH, V.K.BIST

body2015
JUDGMENT K.M. Joseph, C.J. (Oral) Petitions, three in number, being connected, we are disposing of the same by a common judgment. 2. Writ Petition (S/B) No. 2 of 2014 is filed by three writ petitioners. The prayers sought in the writ petition are as follows: “1. To summon the complete record pertaining to the case. 2. To issue the Writ, Order or Direction in the nature of Mandamus directing the respondent authorities to treat the petitioners promoted on the post of Superintending Engineer since 05.02.2007 i.e. the date of promotion of juniors to the petitioners and consider the promotion of the petitioners for the post of Chief Engineer, Level-II from the date their juniors were promoted.” 3. Briefly put, the case of the petitioners is as follows: Petitioners were appointed in Irrigation Department of the erstwhile State of Uttar Pradesh in the post of Assistant Engineer during 1979. The further higher posts are posts of Executive Engineer, Superintending Engineer, Chief Engineer and Head of the Department. The State of Uttarakhand came into being with effect from 09.11.2000 on the basis of the U.P. State Reorganisation Act, 2000. Options were invited by the Government of India from the personnel to serve either in the State of Uttarakhand or Uttar Pradesh. Petitioners submitted their options for being absorbed in the State of Uttarakhand. Most of the personnel opting for Uttarakhand State were already serving in the geographical boundaries of Uttarakhand. There is reference to the erstwhile U.P. Hill Sub-cadre. There is reference to Uttarakhand Government Servants Seniority Rules, 2002. There is also reference to Uttarakhand Irrigation Department Engineering Services (Civil / Mechanical) Group “A” Service Rules, 2003 being enforced with effect from 05.06.2003. Paragraph 11 of Writ Petition (S/B) No. 2 of 2014 reads as follows: “11. That Part III of the Rules of 2003 deals with recruitment & sources to the various categories of the posts in the service. Paragraph 11 of Writ Petition (S/B) No. 2 of 2014 reads as follows: “11. That Part III of the Rules of 2003 deals with recruitment & sources to the various categories of the posts in the service. In sub Rule 1 of Rule 5 states that recruitment to the post of Executive Engineer shall be made by promotion from amongst 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; sub Rule 2 of Rule 5 states that recruitment to the posts of Superintending Engineers shall be made by promotion from amongst substantively appointed Executive Engineers in the Civil or Mechanical Branch, as the case may be, who have completed total 15 years’ service including at least 6 years’ service as Executive Engineer on the first day of the year of recruitment; and so on.” 4. In substance, there occurred delay in the matter of allocation of erstwhile employees of the State of Uttar Pradesh to the State of Uttarakhand. Final allocation took place on the basis of the order dated 11.05.2006. The State Government is accused of not having taken action for finalizing the seniority list of personnel in the Irrigation Department. Admittedly, petitioners and other similarly placed personnel were not considered for promotion in DPC convened on 08.12.2006 and promotion orders were passed ignoring the fact that there are much more senior personnel. It is complained that regular selections made, pursuant to DPC held on 08.12.2006 from the post of Executive Engineer to the post of Superintending Engineer, were the regular promotions and they did not adhere to the Rules and also ignored the seniority list. There is reference to a judgment of this Court passed in Writ Petition (S/B) No. 322 of 2007 (Jeevan Chandra Joshi vs. State of Uttarakhand through Secretary, Irrigation & others), whereunder this Court directed the Uttarakhand Government to issue final seniority list before 31.07.2009 and, thereafter, to start and complete the promotion process in the shortest possible time. Time was taken (15 months) for finalizing the seniority list. There is a reference to The Uttarakhand Government Servant Seniority Rules (First Amendment) 2009. Paragraph 32 of Writ Petition (S/B) No. 2 of 2014 reads as follows: “32. Time was taken (15 months) for finalizing the seniority list. There is a reference to The Uttarakhand Government Servant Seniority Rules (First Amendment) 2009. Paragraph 32 of Writ Petition (S/B) No. 2 of 2014 reads as follows: “32. That the said “The Uttarakhand Servant Seniority Rules (First Amendment) 2009”, promulgated on 22.06.2009, is applicable to the services rendered under the U.P. Hill Sub-cadre of erstwhile Uttar Pradesh upto the appointed day. The said amendment has got no effect on the service made under the Uttarakhand State Cadre as the erstwhile U.P. Hill Sub-cadre has merged to the Uttarakhand Cadre after creation of the Uttarakhand State.” 5. There is further reference also to the judgment of this Court in Writ Petition No. 204 (S/B) of 2010 and connected cases. There is reference, thereafter, to promotion being given to one J.K. Pant. Paragraph 41 of the writ petition reads as follows: “41. That the Hon’ble High Court granted notional promotion to Shri J.K. Pant to the post of Superintending Engineer from 13.06.2001 (the date of promotion of his junior) in its judgment dated 30.11.2010 in Writ Petition No. 16/2008 (S/B). Shri J.K. Pant was promoted to the post of Executive Engineer on 18.11.1995 in U.P. Public Works Department. The prescribed eligible service for promotion to the post of Superintending Engineer is that the personnel should have completed at least 15 years of service including at least 6 years’ service to the post of Executive Engineer. The total service of Shri J.K. Pant to the post of Executive Engineer at the time of promotion to the post of Superintending Engineer was only 4 years.” Thereafter, keeping in view the notional promotion given to J.K. Pant to the post of Superintending Engineer without attaining six years’ service, following the same principle, it is stated that the Government of Uttarakhand should have promoted the similarly placed personnel to the post of Superintending Engineer from the date of promotion of their juniors. It is stated that similar to the petitioners, number of personnel were also allocated Uttarakhand State during 2005 to 2009 in the Uttarakhand Secretariat services; they have been given notional promotions according to their seniority in Uttarakhand State / Uttar Pradesh. 6. It is the case of the petitioners that the petitioners have been given notional promotion to the posts of Executive Engineer with effect from 24.02.2004. 6. It is the case of the petitioners that the petitioners have been given notional promotion to the posts of Executive Engineer with effect from 24.02.2004. They became eligible for promotion as Superintending Engineers from February, 2007, which is the date, on which juniors of the petitioners have been promoted. This in substance is the complaint and which can be seen from the prayers, which we have extracted. As far as the next higher post of Chief Engineer, Level-II is concerned, it is common case that three years’ service is required as Superintending Engineer and there also, petitioners seek a direction that they be considered for promotion to the posts of Chief Engineer, Level-II from the date their juniors were promoted. 7. Pleadings have been exchanged in the matter. 8. Writ Petition No. 23 (S/B) of 2014 is filed by one person. Therein, the prayer is as follows: “i) Issue a writ order or direction in the nature of mandamus directing the respondent authorities to treat the petitioner promoted on the post of Superintending Engineer since 24.6.2010 i.e. the date of promotion of juniors to the petitioner and consider the promotion of the petitioner from the post of Chief Engineer Level II from the date his juniors were promoted.” 9. As far as Writ Petition (S/B) No. 159 of 2014 is concerned, petitioner belongs to the Hill Sub-cadre. The prayers sought in this case are as follows: “i) declare the notional promotion granted to respondent no. 4 and 5 to the post of Superintending Engineer (Civil) w.e.f. 04.01.2007 vide order dated 9th May, 2014 (annexure no. 3 to the writ petition) as arbitrary and illegal. Ii) declare consideration of claim of respondent no. 4 and 5 alone for promotion to the post of Chief Engineer Level-II in the D.P.C. held on 19.05.2014, by ignoring all other eligible persons including the petitioner, as arbitrary and illegal. Iii) Issue a writ, order or direction in the nature of certiorari for quashing the order dated 09.05.2014 issued by respondent no. 1 whereby respondent no. 4 and 5 were brought within the zone of consideration for promotion as Chief Engineer Level-II. Iv) Issue a writ, order or direction in the nature of certiorari calling for record and for quashing the recommendation made by the D.P.C. held on 19.05.2014 for the post of Chief Engineer Level-II. 1 whereby respondent no. 4 and 5 were brought within the zone of consideration for promotion as Chief Engineer Level-II. Iv) Issue a writ, order or direction in the nature of certiorari calling for record and for quashing the recommendation made by the D.P.C. held on 19.05.2014 for the post of Chief Engineer Level-II. V) Issue a writ, order or direction in the nature of mandamus commanding respondent no. 1 to forthwith hold D.P.C. during current recruitment year for supplying 04 available vacancies on the post of Chief Engineer Level-II to protect petitioner’s right to be considered for promotion. Vi) Issue a writ, order or direction in the nature of mandamus commanding respondent no. 2 to hold inquiry as regards consideration of only 2 persons, one retired and one serving, for promotion against 04 vacancies on the post of Chief Engineer Level-II, and also for ignoring all eligible persons in the said promotion exercise. Vii) Issue a writ, order or direction in the nature of mandamus commanding respondent no. 1 to promote the petitioner to the post of Chief Engineer Level-II from a deemed date i.e. 19.05.2014 when respondent no. 4 and 5 were considered, with all consequential benefits including pension.” 10. Petitioner was appointed on 06.09.1977 as Assistant Engineer on ad hoc basis. He was made regular Assistant Engineer in the year 1979. He is a member of Hill Sub-cadre. He was promoted as Executive Engineer on 17.05.2000. The fourth respondent was allotted to the State of Uttarakhand in May, 2006. He also joined as Assistant Engineer in 1979 and he became Executive Engineer in 2005; whereas the petitioner became Executive Engineer on 17.05.2000. Petitioner was promoted as a Superintending Engineer on 05.02.2007. The fourth respondent was promoted as a Superintending Engineer actually on 22.06.2012, but by the order, which is impugned, both the fourth respondent and the fifth respondent came to be given notional promotion as Superintending Engineer with effect from 04.01.2007 by order dated 09.05.2014 (Annexure-3). Thereafter, respondent nos. 4 and 5 alone were considered, according to the petitioner, for promotion to the post of Chief Engineer, Level-II in D.P.C. held on 19.05.2014. This was done by ignoring the claim of the eligible persons, including the petitioner. In the second prayer, petitioner seeks to challenge the order dated 19.05.2014, by which respondent nos. Thereafter, respondent nos. 4 and 5 alone were considered, according to the petitioner, for promotion to the post of Chief Engineer, Level-II in D.P.C. held on 19.05.2014. This was done by ignoring the claim of the eligible persons, including the petitioner. In the second prayer, petitioner seeks to challenge the order dated 19.05.2014, by which respondent nos. 4 and 5 were brought to the zone of consideration for promotion as Chief Engineer, Level-II. The proceedings dated 19.05.2014, by which respondent nos. 4 and 5 were considered for the post of Chief Engineer, Level-II and their names were recommended for promotion, were sought to be quashed. Petitioner has rendered 37 years of continuous satisfactory service. He opted for Hill Sub-cadre. He was regularly promoted as an Executive Engineer in 2000 and therefore, even after given notional promotion, he was senior to respondent nos. 4 and 5 in the cadre of Executive Engineer. The granting of notional promotion itself with effect from 2007 was bad. At any rate, excluding the petitioner from the zone of consideration for the post of Chief Engineer, Level-II, when there were vacancies and considering only respondent nos. 4 and 5 and thereafter, recommending the names of respondent nos. 4 and 5, excluding the petitioner, is clearly illegal and arbitrary. For the post of Chief Engineer, one is required to have completed 25 years of service, including three years as Superintending Engineer on the first day of recruitment year. Petitioner fulfilled this requirement on 01.07.2010. He was considered in D.P.C. held on 15.05.2013. Persons, who got ‘Very Good’, were considered and promoted. As far as D.P.C. held on 19.05.2014 is concerned, petitioner was not considered and to make respondent nos. 4 and 5 eligible, though they were not eligible for being considered for promotion to the post of Chief Engineer, Level-II, they were given notional promotion with effect from 04.01.2007. This notional promotion was given ten days’ before the DPC. There were four vacancies in the post of Chief Engineer, Level-II and for supplying all the four vacancies, promotion exercise should have been held, but only respondent nos. 4 and 5 were considered. 11. Pleadings have been exchanged. 12. This notional promotion was given ten days’ before the DPC. There were four vacancies in the post of Chief Engineer, Level-II and for supplying all the four vacancies, promotion exercise should have been held, but only respondent nos. 4 and 5 were considered. 11. Pleadings have been exchanged. 12. We heard Sri Pankaj Miglani, learned counsel for the petitioners in Writ Petition (S/B) No. 2 of 2014, Sri Amar Shukla, learned counsel for the petitioner in Writ Petition (S/B) No. 23 of 2014, Sri Manoj Tewari, Senior counsel for the petitioner in Writ Petition (S/B) No. 159 of 2014, Sri A.S. Rawat, learned Addl. Advocate General on behalf of the State and Sri M.C. Pant, learned counsel appearing for private respondents in Writ Petition (S/B) Nos. 2 of 2014 and 23 of 2014, which have been filed by the allottees of 2006. 13. The case of the petitioners in Writ Petition (S/B) Nos. 2 of 2014 and 23 of 2014 appears to be on similar line, that is to say that they are persons, who were recruited, when the State of Uttarakhand had not born and had also not opted in the Hill Sub-cadre, instead they opted for Uttarakhand thereafter and, on the basis of the orders passed by the Government, they came to be allotted. We proceed on the basis that when they were recruited in the State of Uttar Pradesh, many of their juniors opted for the Hill Sub-cadre. In the Hill Sub-cadre, according to the learned Additional Advocate General, as there was a separate seniority list, they got accelerated promotion. Petitioners, in the aforesaid two cases, were nonetheless senior to many, who were in the Hill Sub-cadre, who got accelerated promotions. There is delay in the matter of making final allocation orders and the final allocation orders, it appears, were made in 2006. These cases, essentially, involved the resolution of disputes in the conspectus of certain principles in service jurisprudence. Firstly, in the State, the seniority, which one acquires in the original cadre, accompanies him and, upon his being promoted, may be later than his juniors, he is entitled to catch up. These cases, essentially, involved the resolution of disputes in the conspectus of certain principles in service jurisprudence. Firstly, in the State, the seniority, which one acquires in the original cadre, accompanies him and, upon his being promoted, may be later than his juniors, he is entitled to catch up. Secondly, we are confronted with this case with effect of Rule 8 (a), which was inserted by way of amendment in the Uttarakhand Government Servants Seniority Rules, 2002 and, since it was the subject matter of a judgment of this Court in Writ Petition (S/B) No. 204 of 2010 and connected cases, we think that it is more apposite that we refer to the said judgment, which refers to the relevant portion of the Rules and also the interpretation to be placed on Annexure-5, which is as follows: “These petitions seek to challenge the legality of the amendment effected to the Uttarakhand Government Servants Seniority Rules, 2002 (hereinafter referred to as the “Rules”), whereby and under, after Rule 8, Rule 8(a) has been inserted. The inserted Rule 8(a) provides three things, namely, (i) that the status of the Government employee, as at 8th November, 2000, shall remain unaltered and, even if anyone is holding a superior post, on the ground that his seniors are not holding such posts, he shall not be reverted; (ii) a senior shall not be entitled to notional promotion on the ground that his junior is holding a superior post; and (iii) the employees shall be promoted to the superior posts only when they have achieved eligibility to be promoted to superior posts. 2. The petitioners are principally contending that by reason of insertion of Rule 8(a) in the said Rules, the right of the petitioners to be promoted has been interfered with. The petitioners are not contending that their juniors, who have been promoted to superior posts, should be reverted back, but they are contending that in service jurisprudence, a senior is entitled to notional promotion when his junior has been given a substantive promotion to a superior post and, accordingly, the Rule 8(a) interferes with such established right of the petitioners. The petitioners are not contending that their juniors, who have been promoted to superior posts, should be reverted back, but they are contending that in service jurisprudence, a senior is entitled to notional promotion when his junior has been given a substantive promotion to a superior post and, accordingly, the Rule 8(a) interferes with such established right of the petitioners. The petitioners are not contending that they should be given promotion without being eligible for promotion, but having regard to the acknowledged fact that their juniors are occupying superior posts, in the event petitioners are prevented from obtaining notional promotion on the basis that they have not crossed the eligibility bar, that will be interference with their established right of being promoted. 3. The reason for insertion of Rule 8(a) in the said Rules is basically the Uttar Pradesh Reorganisation Act, 2000. In terms thereof, the members of other services, not belonging to All India Services, would remain employees of Uttar Pradesh until they are allotted to the State of Uttarakhand. When such employees of Uttar Pradesh are allotted to the State of Uttarakhand, their conditions of service, applicable when they were employees of Uttar Pradesh, cannot be varied to their disadvantage except with the previous approval of the Central Government. That apart, the employees of Uttar Pradesh, so allotted to Uttarakhand, are entitled to hold and discharge duties of the posts they were holding while they were employees of the State of Uttar Pradesh. 4. Therefore, it makes it abundantly clear that until the writ petitioners and the private respondents, in these writ petitions, were allocated to the State of Uttarakhand, they were employees of the State of Uttar Pradesh. Each of the petitioners and the private respondents has been allocated to the State of Uttarakhand with effect from the appointed date, i.e. 9th November, 2000, although the orders of allocation had been issued from time to time. In such view of the matter, apparently, there cannot be any dispute inter se the petitioners and the private respondents, either as regards their right of promotion or as regards their seniority or as regards any other matter pertaining to their service conditions. In such view of the matter, apparently, there cannot be any dispute inter se the petitioners and the private respondents, either as regards their right of promotion or as regards their seniority or as regards any other matter pertaining to their service conditions. In other words, if the petitioners and the private respondents were sailing in the same boat while employees of the State of Uttar Pradesh, they would be sailing in the same boat when they would become employees of Uttarakhand on being allocated to the State of Uttarakhand. The reason for discontent and the reason for insertion of Rule 8(a) in the said Rules is that the petitioners and the private respondents were not sailing in the same boat while they were employees of the State of Uttar Pradesh. 5. The State of Uttar Pradesh had and has different services catering the needs of different departments of the said State. By the Uttar Pradesh Hill Sub-Cadre Rules, 1992, it was decided that the services catering the needs of the departments mentioned in the said Hill Sub-Cadre Rules shall have a hill sub-cadre. In order to be allocated to the said hill sub-cadre, an employee in the services of the State of Uttar Pradesh, attached to the departments mentioned in the said Hill Sub-Cadre Rules, was required to opt and such option was final and irrevocable. It provided that the strength of the hill sub-cadre, in such services, shall be such as may be determined by the Government from time to time by notified order. It also provided that if the number of persons in the hill sub-cadre is less than the posts available in hill sub-cadre, the vacant posts may be filled-in by transfer from general cadre. It also provided that the promotional posts available in the hill sub-cadre would be supplied only by those, who are in the feeder posts in the hill sub-cadre. Therefore, in each of the departments, mentioned in the said Hill Sub-Cadre Rules, after 1992, there was a hill sub-cadre and a general cadre. A promotional post, in the hill sub-cadre, could only be supplied by a person belonging to hill sub-cadre and not by a person belonging to the general cadre. In consequence thereof, fast track promotions were given to many a persons in different services, who belonged to hill sub-cadre of such services. A promotional post, in the hill sub-cadre, could only be supplied by a person belonging to hill sub-cadre and not by a person belonging to the general cadre. In consequence thereof, fast track promotions were given to many a persons in different services, who belonged to hill sub-cadre of such services. Admittedly, the Uttar Pradesh Hill Sub-Cadre Rules, 1992 were repealed w.e.f. 9th November, 2000 and, accordingly, whoever was in the hill sub-cadre, stood reverted back to the original cadre of the service. On that date, the members of the hill sub-cadre and some of the members of the general cadre were also allocated to the State of Uttarakhand. In view of the mandate of the Uttar Pradesh Reorganisation Act, 2000, each of them carried with them the benefits of the services rendered by them while serving the State of Uttar Pradesh and, accordingly, became entitled to seniority from the date of their substantive appointments. In such view of the matter, some of the persons, belonging to general cadres of different services, allocated to the State of Uttarakhand, became senior to many a members of hill sub-cadres of the same departments, allocated to the State of Uttarakhand, but substantively holding higher posts. Admittedly, neither by the Uttar Pradesh Reorganisation Act, 2000 nor by any other law made by the State of Uttarakhand, any of the conditions of service of any member, either belonging to the general cadre or hill sub-cadre, has been altered. It is an admitted position that each person, who has been allocated to the State of Uttarakhand, has been given due respect to the seniority to which he is entitled to from the date of his substantive appointment. However, as aforesaid, some juniors, having had opted for hill sub-cadre, occupied higher posts in the hierarchy as on the date of their allocation to the State of Uttarakhand. No doubt, they cannot be reverted back and that is also not the contention of the petitioners. The petitioners are contending that in service law, they have a right to be treated equally with their juniors and, accordingly, if promotional posts are not available for giving substantive promotions to the petitioners, in law, they are entitled to notional promotions to the posts held by their juniors. The petitioners are contending that in service law, they have a right to be treated equally with their juniors and, accordingly, if promotional posts are not available for giving substantive promotions to the petitioners, in law, they are entitled to notional promotions to the posts held by their juniors. The learned counsel for the State submitted that if petitioners seek notional promotion from the date their juniors were promoted, they would be seeking promotion from a date anterior to 8th November, 2000, i.e. the date when their juniors were promoted in the hill sub-cadre, which the State of Uttarakhand cannot accord as the State of Uttarakhand had not come into existence on that date. The learned counsel for the petitioners, in answer, submitted that acknowledging the fact that right of a notional promotion crystallised on the date of allocation of the petitioners to the State of Uttarakhand, their promotions should be given from the date of allocation i.e. 9th November, 2000, which is well within the competence of the State of Uttarakhand. It was also submitted that the inserted Rule 8(a), which debars such notional promotion, being contrary to the established right of the petitioners to obtain promotion on the analogy that their juniors have been promoted, should be struck down. 6. The fact remains that the promotions, which were accorded to the persons belonging to hill sub-cadre, could not be accorded to persons belonging to the general cadre in terms of the said Hill Sub-Cadre Rules. Because they were part and parcel of the sub-cadre created by the said Hill Sub-Cadre Rules, they could alone be considered for promotion to the posts available in the said sub-cadre. With the coming to an end of the said Hill Sub-Cadre Rules, while the sub-cadre ceased to exist, the posts available in sub-cadre also ceased to exist. The persons, who were holding the posts in the hill sub-cadre, came to be merged into the general cadre with the posts that they were holding. With the coming to an end of the said Hill Sub-Cadre Rules, while the sub-cadre ceased to exist, the posts available in sub-cadre also ceased to exist. The persons, who were holding the posts in the hill sub-cadre, came to be merged into the general cadre with the posts that they were holding. In such view of the matter, the persons in the general cadre cannot compare themselves with the holders of the posts in the hill sub-cadre, who came and merged along with their posts held in hill sub-cadre, with the general cadre and, accordingly, there is no question of a senior, in the merged cadre, to ask for a notional promotion in the merged cadre on the ground that his junior is holding a superior post in the merged cadre. Inserted Rule 8(a) only explains the same. 7. The learned counsel for the petitioners has, for our benefit, cited a judgment of the Hon’ble Supreme Court rendered in Mohammad Shujat Ali and others Vs. Union of India & others, reported in (1975) 3 SCC 76 , and drew our attention to paragraph 15 thereof. We are really grateful to the learned senior counsel Mr. Manoj Tiwari for citing the judgment. The said judgment records the distinction between “a right to be promoted” and “a chance to be promoted”. Whereas a right to be promoted is a part and parcel of the service conditions and, accordingly, the same cannot be altered to the disadvantage of an existing employee, whereas a chance to be promoted, being not a part and parcel of the service conditions, no right can be founded thereon. In the instant case, however, there was no right, nor even a chance of promotion. 8. Being a member of a hill sub-cadre, until such time the hill sub-cadre was in existence, he had a right to be promoted to the promotional posts available in the hill sub-cadre. The moment the Rules came to an end, the right envisaged in such promotions came to an end. The people belonging to general cadre had no right to be promoted to promotional posts available in a hill sub-cadre and not even a chance of notional promotion in the general cadre on the analogy that their juniors in the hill sub-cadre have been promoted. The people belonging to general cadre had no right to be promoted to promotional posts available in a hill sub-cadre and not even a chance of notional promotion in the general cadre on the analogy that their juniors in the hill sub-cadre have been promoted. After the Hill Sub-Cadre Rules came to an end, if the persons, who had no such right or even a chance, are given such right, the same would tantamount to windfall for them. That is not permissible, since, of their choice, they did not opt to become members of hill sub-cadre when they could. By reason of cessation of the Rules, they cannot get a benefit merely because they are senior to persons, who came from hill sub-cadre. We, accordingly, find no infirmity in Rule 8(a) inserted by the amendment impugned in the writ petitions. 9. The learned counsel for the petitioners contended that taking advantage of the said inserted Rule, the right to claim notional promotions, on the strength of promotions given 13 subsequent to 9th November, 2000, has also been interfered with. We do not think that is permissible and make it absolutely clear that Rule 8(a), inserted by the amendment, only deals up to 9th November,2000 and does not deal with anything done or to be done after 9th November, 2000. It was further submitted before us by the learned counsel for the petitioners that taking advantage of the inserted Rule 8(a), the right of being notionally promoted would be denied even in cases where unjust, inappropriate or illegal promotions had been given to juniors. A look at the inserted Rule 8(a) would make it abundantly clear that the appointments and promotions, referred to therein, are substantive, legal and valid appointments and promotions and does not contemplate any unjust, illegal or inappropriate appointment or promotion. Therefore, there is no scope of apprehension that the petitioners will have no scope of putting forth a case of unjust, inappropriate or illegal promotion given to a junior. 10. Therefore, there is no scope of apprehension that the petitioners will have no scope of putting forth a case of unjust, inappropriate or illegal promotion given to a junior. 10. With the clarifications as above, we permit the petitioners to make representations to the appropriate authorities highlighting their personal grievances in relation to any promotion not given to any of the petitioners or in relation to any promotion given to any other person, which according to the petitioners, was inappropriate and, if such representations are made, we hope and expect that the same will be dealt with in accordance with law as quickly as possible, but not later than three months from the date of making of such representations. 11. With the observations as above, the writ petitions are disposed of. Parties to bear their own costs.” 14. The case of the petitioners in Writ Petition (S/B) Nos. 2 of 2014 and 23 of 2014 would, therefore, appear to be that under this judgment, while the position regarding rights cannot be predicated with reference to the date of promotion of juniors, who had opted for Hill Sub-cadre upto 09.11.2000, after 09.11.2000, if promotions are made, the said Rule will not stand in the way of promotions being claimed notionally with reference to date, on which juniors were promoted. They would seek to derive this position from paragraph-9, which we have already extracted. At this juncture, it is also necessary for us to notice that pursuant to interim orders passed by this Court in Writ Petition (S/B) Nos. 2 of 2014 and 23 of 2014, certain orders have been passed by the Govt. As far as Writ Petition (S/B) No. 2 of 2014 is concerned, an order was passed by directing that their case be considered and pursuant to the same, notional promotion has already been granted from 2007. As far as Writ Petition (S/B) No. 23 of 2014 is concerned, petitioner has been given notional promotion from 2010, which is what is, in fact, claimed by the petitioner. 15. According to the learned Additional Advocate General, the situation presented by this litigation arises from the historical causes, which prevailed both, prior to creation of the State of Uttarakhand and, immediately after formation of the State of Uttarakhand and the developments, which took place, thereafter. 15. According to the learned Additional Advocate General, the situation presented by this litigation arises from the historical causes, which prevailed both, prior to creation of the State of Uttarakhand and, immediately after formation of the State of Uttarakhand and the developments, which took place, thereafter. That is to say, the persons, who were senior, going by the original entry in the original cadre (apparently as an Assistant Engineer in all these cases), continued in the State of Uttar Pradesh without opting for the Hill Sub-cadre. In other words, in many cases, juniors opted for Hill Sub-cadre; they got accelerated promotions and this is also provided for in view of the separate seniority list, which was allowed, but at the same time, in view of the entitlement to notional promotion and the right to preserve their original seniority, when they became entitled for promotion otherwise and also their right to catch up, which no doubt, remained in the state of suspended animation, till 09.11.2000, which revived after 09.11.2000, particularly as declared by this Court in Writ Petition (S/B) No. 204 of 2010 and connected cases, appropriate orders are to be passed. There is a case for the writ petitioners in the aforesaid two writ petitions that relaxation has also been granted from qualifying service in the matter of promotion to Chief Engineer. Learned Additional Advocate General would submit that relaxation was given, as there was nobody available. 16. Sri M.C. Pant, Advocate, who appears for the contesting respondents, would submit that against the judgment of this Court in Writ Petition (S/B) No. 54 of 2013 “Ramesh Chandra Saxena Vs. State of Uttarakhand and others”, SLP is pending before the Hon’ble Apex Court. That was a case, it is to be noticed, where the writ petition was allowed and the Court took the view that because of the delay in allocation of the petitioner to the State of Uttarakhand, the right of the petitioner therein to catch up in terms of the seniority was upheld. That was a case, it is to be noticed, where the writ petition was allowed and the Court took the view that because of the delay in allocation of the petitioner to the State of Uttarakhand, the right of the petitioner therein to catch up in terms of the seniority was upheld. He next relied on a judgment of the Hon’ble Supreme Court in the case of Union of India and another vs. M. Bhaskar and others, reported in (1996) 4 SCC 416 , where the Hon’ble Apex Court held as follows:- “The aforesaid decision has been challenged in this appeal by the Union of India by contending that 2 years period of experience has to be reckoned, not from 11.10.1988, but from 21.9.1989. There is no dispute that the eligibility condition is 2 years experience in Grade-II. Now, this respondent having really started working in Grade-II pursuant to the order of 21.9.1989, he could not have gained experience prior to the date he had joined pursuant to this order. The mere fact that his promotion in Grade-II was notionally made effective from 11.10.1988 cannot be taken to mean that he started gaining experience from that day, because to gain experience one has to work. Notional promotions are given to take care of some injustice, inter alia, because some junior has come to be promoted earlier. But we entertain no doubt that the persons promoted to higher grade cannot gain experience from the date of the notional promotion; it has to be from the date of the actual promotion.” 17. Therefore, according to him, in all these cases, since entitlement is sought on the basis of promotion to the higher post, unless there is an actual promotion and the person actually works for the requisite period, he will not be entitled for consideration for promotion to the next higher post. Next, Sri M.C. Pant, would contend that the claim for notional promotion cannot be carried beyond one post. In other words, he posed a question, ‘how long this claim for notional promotion can be carried?’ 16 18. Mr. M.C. Pant, Advocate argued that persons like the party respondents have rendered actual service unlike the petitioners. 19. In the case of Writ Petition (S/B) No. 159 of 2014, we must notice that respondent no. 4 (R.C. Saxena) has died on 22.06.2012. Mr. M.C. Pant, Advocate argued that persons like the party respondents have rendered actual service unlike the petitioners. 19. In the case of Writ Petition (S/B) No. 159 of 2014, we must notice that respondent no. 4 (R.C. Saxena) has died on 22.06.2012. Therefore, as against him, we must straight away observe that the writ petition is abated and no relief can be given to the petitioner, but as regards the surviving respondent, two general aspects have been raised, namely, he could not have been given notional promotion as Superintending Engineer with effect from 04.01.2007, as he became Executive Engineer only in 2005. Period of 6 years qualifying service is required to be considered for promotion as Superintending Engineer. As far as the 4th respondent is concerned, it is noted that he was given actual promotion as Executive Engineer in 2005. Thereafter, he was given notional promotion in 2013 by the State of Uttarakhand to the post of Executive Engineer with effect from 24.02.2004. He was thereafter given promotion as Superintending Engineer in 2012. The 4th respondent filed Writ Petition (S/B) No. 54 of 2013 (Annexure-2 to the counter affidavit filed by him) and therein, the Court, inter-alia, held as follows:- “Under the Rules, in order to be promoted to the post of Chief Engineer (Level II), a Superintending Engineer is required to serve for 25 years in the Department on the first day of the year of recruitment and, out of those 25 years, at least three years as Superintending Engineer. The first day of the year of recruitment, in the instant case, was 1st July, 2012. Petitioner, it is not in dispute, served the Department for 25 years; but, having regard to the fact that, on 22nd June, 2012, petitioner was promoted to the post of Superintending Engineer, he had not completed three years as Superintending Engineer as on 1st July, 2012 and, accordingly, his case was not considered at the meeting of the Departmental Promotion Committee held on 15th May, 2013. The fact remains that many other persons also did not complete three years of service as Superintending Engineer as on 1st July, 2012 and, accordingly, the Government exercised its power and granted relaxation to them. The fact also remains that each of those persons, in whose favour relaxation was given, is junior to the petitioner. Under the Rules, a senior always catches up with the junior. The fact also remains that each of those persons, in whose favour relaxation was given, is junior to the petitioner. Under the Rules, a senior always catches up with the junior. Before creation of the State of Uttarakhand, there was a concept of Hill Sub-Cadre, which was separate from the general cadre. No sooner the State of Uttarakhand was created, Hill Sub-Cadre was abolished and there is a concept of only one cadre for all employees of the State of Uttarakhand. Petitioner, while Assistant Engineer, was senior to those, who have been granted relaxation, no sooner he became an Executive Engineer, he became senior to all those Executive Engineers in whose favour the relaxation was granted and, immediately he became a Superintending Engineer, he automatically became senior to all those Superintending Engineers in whose favour the relaxation was granted. There is not a single whisper in any part of the pleadings why relaxation was given to the others and not to the petitioner. Under the U.P. Reorganisation Act, 2000, the Central Government was required to settle allocation of all employees of undivided State of Uttar Pradesh as soon as possible after the appointed date. It took six years for allocation of the petitioner to the State of Uttarakhand. It is nobody’s case that, because of any action on the part of the petitioner, his allocation to the State of Uttarakhand was delayed. Because the Central Government has delayed allocation of the petitioner to the State of Uttarakhand, and because the State of Uttarakhand woke up from its slumber in the year 2013 in order to reach to the petitioner his rightful claims; petitioner cannot be made to suffer. We, accordingly, allow the writ petition and direct constitution of a Departmental Promotion Committee as soon as possible, but not later than three months from the date of service of a copy of this order upon respondent No. 3. The Departmental Promotion Committee will consider the suitability of the petitioner for being promoted to the post of Chief Engineer (Level II). By an order passed by this Court on 10th June, 2013, one post of Chief Engineer (Level II) has been directed to be kept vacant until further orders of this Court. No application has been filed for vacating this interim order, however, it is being contended that, before this order dated 10th June, 2013 was passed, all posts had been filled-up. No application has been filed for vacating this interim order, however, it is being contended that, before this order dated 10th June, 2013 was passed, all posts had been filled-up. In the event that is true, we direct the State Government to create a post for the petitioner, if he is found suitable for being promoted. Petitioner should be notionally promoted from the date his juniors were promoted, in the event, a recommendation for promotion is made by the Departmental Promotion Committee.” 20. As far as the 5th respondent is concerned, it appears that he was given relaxation and, accordingly, it is that he was given notional promotion for the post of Superintending Engineer from 2007, though going by the normal period, and the date of notional promotion as Executive Engineer being in February, 2004, he would have become Superintending Engineer only in 2010, but he was given notional promotion in 2007. It is to be noted that the fifth respondent has already retired. 21. The first question, we must consider is, whether as per the judgment of the Hon’ble Apex Court cited by Sri M.C. Pant, qualifying service means actual service, for in which case, none of the petitioners in Writ Petition (S/B) Nos. 2 of 2014 and 23 of 2014 will be entitled to any relief as what they are seeking is that they should be given notional promotion on the basis that their juniors were given promotion earlier. 22. Before that, we must clear the ground for dealing with the arguments of the parties, posed by the effect of Rule 8(a) inserted by amendment to the Uttarakhand Government Servants Seniority Rules, 2002. We have before us the judgment passed by this Court in Writ Petition (S/B) No 204 of 2010 and connected cases. That judgment is not appealed against and that judgment has become final as there is no SLP pending against the said judgment. Going by the said judgment, what is laid down appears to be that if any junior has been promoted, who belongs to Hill Sub-cadre ahead of the senior, there will be no reversion. That judgment is not appealed against and that judgment has become final as there is no SLP pending against the said judgment. Going by the said judgment, what is laid down appears to be that if any junior has been promoted, who belongs to Hill Sub-cadre ahead of the senior, there will be no reversion. Secondly, the senior, who is subsequently allocated to the State of Uttarakhand, will not be able to catch up with his junior, who has been promoted to the extent that such promotion took place prior to 09.11.2000, but in regard to promotions made after 09.11.2000, which is the appointed day under the State Reorganisation Act, Rule 8(a) will not stand in the way of the seniors, who are subsequently allocated to the State of Uttarakhand. Rule 8(a) will not stand in the way of senior catching up and questioning the illegal promotion given to his junior. He will have the right to be promoted from the date on which, he, however, attains the eligibility. We see no reason to take a different view and if we follow the said dictum, in the facts of this case, we will have to examine what will be the effect. Petitioners in Writ Petition (S/B) No. 2 of 2014 and 23 of 2014 did not opt for the Hill Sub-cadre. In other words, they were appointed in the erstwhile State of Uttar Pradesh. It is an admitted case, however, that they have been lawfully allocated to the State of Uttarakhand under orders of the Government. The allocation did not take place immediately after the appointed day, but it took time and subsequently, after the appointed day, namely, 09.11.2000, certain promotions took place, which related to the juniors of the petitioners in Writ Petition (S/B) Nos. 2 of 2014 and 23 of 2014. It is on the strength of the same that they are claiming the right to get notional promotion. 2 of 2014 and 23 of 2014. It is on the strength of the same that they are claiming the right to get notional promotion. They also rely on the Government Order, English version of which has been filed by the learned counsel for the petitioners, which is as follows: “Government of Uttarakhand Personnel Section-2 No. 737 / Karmik-2 /2003 Dehradun: Dated 11 June 2003 Office Order The Government has encountered the question that whether any person has got any right for promotion from the date of occurrence of the vacancy and whether notional promotion from such an anterior date can be granted to a retired or deceased person, the date on which, neither the person concerned himself was working to the promotion related posts nor any person junior to him was working to the said post. 2. This has been clarified earlier that in the situation where the process of selection for promotions has been delayed, the names of such retired/deceased personnel will also be included in the eligibility list, whose names would have been included in the eligibility list as per the prevalent service rules, had the selection process been made timely, irrespective of that some of personnel amongst them might have retired or expired at the time of selection. If found suitable, the deceased and retired personnel will be considered for grant of notional promotion from the relevant year (date). 3. The undersigned has been directed to state that there as per the Rule-8 of Uttarakhand Promotion By Selection In Consultation with Public Service Commission (Procedure) Rules and Rule-2 of the Preparation of Eligibility List for Selections to The Posts Outside The Purview Of the Public Service Commission, provisions has been made for preparing separate eligibility lists for the vacancies of every year. This means that the all personnel shall be kept in the eligibility list irrespective of the fact that at the time of selection they have died or have retired. But as regards the question of notional promotion, there is no obligation for granting the promotion from the date of vacancy, Meaning there by that Notional Promotion is always considered from the date of promotion of the junior, with the restriction that the person concerned is found to suitable by the Selection Committee.” 4. Therefore it is requested that in such matters, action may be taken as stated above. (Surendra Singh Rawat) Additional Secretary” 23. Therefore it is requested that in such matters, action may be taken as stated above. (Surendra Singh Rawat) Additional Secretary” 23. According to the petitioners, they have been given promotion as Executive Engineers in the year 2004. For the next higher post of Superintending Engineer, according to them, they are entitled to be promoted, in the case of petitioners in Writ Petition (S/B) No. 2 of 2014 and 23 of 2014 with effect from 2007, when their juniors were promoted. According to the writ petitioner in Writ Petition (S/B) No. 23 of 2014, petitioner is entitled to be promoted with effect from 2010. The admitted position is that in regard to promotion to the post of Superintending Engineer from the post of Executive Engineer, under the Rules, persons must have the qualifying service of six years among other qualifications. Even going by the position that they became entitled to be promoted as Executive Engineer from February 2004, they can be considered qualified to be promoted as Superintending Engineer only after completion of service of six years. In fact, Sri Pankaj Miglani does not dispute this question that though the prayer is for being notionally promoted with effect from 2007, he would submit that the petitioners may be given notional promotion from the time when they completed the qualified service in 2010, from the date on which they were given notional promotion as Executive Engineer, namely, in February, 2004. In other words, both the petitioners in Writ Petition (S/B) Nos. 2 of 2014 and 23 of 2014, claim notional promotion from their respective dates they complete six years notionally from the time when notionally promoted in 2004 February. Learned Additional Advocate General does not seriously dispute the applicability of the said principle, though he would submit that ordinarily, the period of six years must be completed with reference to the date on which one is actually promoted, but he would submit that this is a case, where after 09.11.2000, promotions were given to the juniors of the petitioners and in view of the legal position obtaining in the State of Uttarakhand, which was a part of larger State of Uttar Pradesh and having regard to the principle of catching up with the seniority, petitioners may be entitled to be considered with reference to the date of notional promotion and the qualifying period must be understood accordingly. 24. 24. Now, if we pass on to the consideration of the judgment in the case of Union of India and another vs. M. Bhaskar and others, reported in (1996) 4 SCC 416 cited by Shri. M.C. Pant, it is true that in Paragraph 15, in the conspectus involved in the said case, the Hon’ble Apex Court held that the period of experience must be actual experience. 25. Per contra, Sri Pankaj Miglani, Advocate would bring to our notice the following decision of the Hon’ble Supreme Court, namely, Union of India and others vs. K.B. Rajoria, reported in (2000) 3 SCC page 562, which reads as follows:- “11. The word ‘regular’ therefore, does not mean ‘actual’ and the first question the High Court should have considered was whether the appointment of Krishnamoorti was regular and in accordance with the Rules or it was irregular in the sense that it was contrary to any principle of law. 12. The decision which is somewhat apposite is the case of K. Madhavan v. Union of India where the eligibility requirement was eight years in the grade ‘on a regular basis’. In that case it was held: (SCC p. 575, para 10) “In our view, therefore, the expression ‘on a regular basis’ would mean the appointment to the post on a regular basis in contradistinction to appointment on ad hoc or stopgap or purely temporary basis.” 13. It is nobody’s case that the notional promotion granted to Krishnamoorti was ‘irregular’. By giving him notional promotion as Additional Director General with effect from 22.02.1995, Krishnamoorti was in fact regularly appointed to the post on that date.” 26. We would think that in the context of the facts and the law applicable and which principle has been applied, in fact, even in the matter of granting them notional promotion with regard to the post of Executive Engineer, petitioners would appear to be entitled to be considered for notional promotion. We have already noted the order of the Government, which says that in regard to notional promotion, the question of suitability also must be considered, which will be done by the DPC. In this regard, it is to be noted that the petitioners have already been recommended for promotion by the DPC and, therefore, the question is one of applying the principle. In this regard, it is to be noted that the petitioners have already been recommended for promotion by the DPC and, therefore, the question is one of applying the principle. We would think that the petitioners cannot be held to be disentitled for being considered for notional promotion as Superintending Engineer on the basis of the notional promotion as Executive Engineer in 2004, accordingly, and we reject the argument of Sri M.C. Pant, learned counsel for party respondents that unless the actual service is rendered in the post of Executive Engineer for a period of six years, they cannot be considered for further notional promotion as Superintending Engineer. Accordingly, in the light of the above discussion, Writ Petition (S/B) Nos. 2 of 2014 and 23 of 2014 will be disposed of by directing that the petitioners will be considered for notional promotion as Superintending Engineer with reference to the date of completion of 6 years from the date of notional promotion as Executive Engineer. It appears that in the case of Writ Petition (S/B) No. 23 of 2014, such an order has already been passed. The effect will be given to that order. [In the case of Writ Petition (S/B) NO. 2 of 2014 and 23 of 2014 orders have been passed on the basis of the interim order of this Court, which according to Sri MC Pant, was directed not to be implemented pending final disposal.] In Writ Petition (S/B) No. 2 of 2014, the order to the effect that the petitioners will get notional promotion from 2007 cannot be given effect to as they would not complete 6 years as in 2007 and they would complete six years only in 2010. Accordingly, petitioners will be entitled for notional promotion as Superintending Engineer with effect from the date on which they complete six years, as in the other case, as in Writ petition (S/B) No. 23 of 2014. As far as for the post of Chief Engineer, Level-II is concerned, petitioners will be entitled to be considered for the same in accordance with law. 27. In regard to Writ Petition (S/B) No. 159 of 2014, we have already set out the facts. 28. Whatever that be, learned Additional Advocate General would submit that the DPC made recommendations in respect of two vacancies as per the Court’s order. 27. In regard to Writ Petition (S/B) No. 159 of 2014, we have already set out the facts. 28. Whatever that be, learned Additional Advocate General would submit that the DPC made recommendations in respect of two vacancies as per the Court’s order. Learned Additional Advocate General would submit that two vacancies are intact and have not been filled up even now, in view of the Government Order relating to the notional promotion even in respect of persons, who have retired. Petitioner, who was considered in 2013, but not having passed muster in view of the grading he got cannot complain. However, he was not considered for the DPC held in May 2014. Learned Additional Advocate General, in fact, would submit that respondent nos. 4 & 5 were not junior to the petitioner. 29. According to the learned Senior Counsel for the petitioners, all the vacancies, available in respect of the year of recruitment, which means from 1st July of that year, should have been considered in this case. There being four vacancies, the petitioner should also have been considered. According to the learned Additional Advocate General, only two vacancies were considered and that too on the basis of the order of this Court. The learned Senior Counsel for the petitioner pointed out that one of the persons, who was considered, has retired by that time. The fact remains that out of respondent nos. 4 & 5, one has died and another has retired. Petitioner has also retired. But, according to the petitioner, failure to consider him for the DPC in 2014 is illegal at any rate. That apart, the argument is that respondent nos. 4 & 5 were not eligible to be considered, as they were given notional promotion a few days prior to the DPC without having completed six years even from the date of notional promotion, but there, it appears, that they were given notional promotion on the basis of the judgment of this Court in Writ Petition (S/B) NO. 54 of 2013 “Ramesh Chandra Saxena Vs. State of Uttarakhand and others”, and apparently, on the basis of relaxation of service. But, still the second complaint of the petitioners is that they were not considered in 2014; their claim must be considered, and it would have effect in regard to his retirement benefits merits acceptance. 54 of 2013 “Ramesh Chandra Saxena Vs. State of Uttarakhand and others”, and apparently, on the basis of relaxation of service. But, still the second complaint of the petitioners is that they were not considered in 2014; their claim must be considered, and it would have effect in regard to his retirement benefits merits acceptance. Accordingly, Writ Petition (S/B) No. 159 of 2014 is disposed of by directing that a review DPC will be held to consider the case of the petitioner with reference to the two unfilled vacancies, in accordance with law, alongwith all others, who were eligible to be considered on that date. This will be completed within a period of two months from the date of production of a certified copy of this judgment. 30. All the pending Applications also stand disposed of. 31. Let a copy of this judgment be kept in all the connected files.