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2015 DIGILAW 579 (UTT)

LALIT SINGH KHARAYAT v. STATE OF UTTARAKHAND

2015-12-17

SUDHANSHU DHULIA

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JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. The petitioner is a Class-IV employee in the Treasury of District Udham Singh Nagar in Uttarakhand. He was appointed on Class-IV post in the year 2006. The Service Rules, which are governed the services of the petitioner, are known as “Uttarakhand Treasury Subordinate Cadre Rules, 2003” (in short “Rules of 2003”), which has been substantially amended in the year 2013. According to the petitioner, while he was governed by the un-amended Rules, there was a provision by which Class-IV employees could be promoted to the post of Accounts Clerk. The post of Accounts Clerk had to be filled by way of direct recruitment and certain percentage of the posts could be filled by way of promotion amongst Class-IV employees. In the year 2013, however, this Rules were substantially amended and the post of Accounts Clerk was declared ‘dying cadre’. The persons working on the post of Accounts Clerk have been either promoted or retired from service and their posts were merged with the post of Assistant Accountant. 2. The case of the petitioner is that the post on which he would have been considered for promotion i.e. the post of Accounts Clerk, which is now declared as dying cadre and this was the only channel of promotion for him in his entire service, which has now been removed by way of an amendment in the year 2013. In other words, the petitioner is not liable to be considered at all for promotion in his entire service. The petitioner has already challenged the amended rules saying that declaring the post of Accounts Clerk as dying cadre is violative of Article 16 of the Constitution of India. 3. In this case, counter affidavit has been filed by the State. In the counter affidavit the State has taken a stand that the petitioner could not have been promoted on the post of Accounts Clerk, as the same is declared dying cadre and he can get benefit of Assured Carrier Promotion wherein, after particular period of service, he would be put in higher scale. 4. This is a clear view of this Court that Assured Carrier Promotion Scheme cannot be a full substitute of a promotional channel. The scheme of Assured Carrier Promotion is in addition to the promotional avenue, which are available to a person in Government Service. 5. 4. This is a clear view of this Court that Assured Carrier Promotion Scheme cannot be a full substitute of a promotional channel. The scheme of Assured Carrier Promotion is in addition to the promotional avenue, which are available to a person in Government Service. 5. It is a settled position of law though a person does not have a fundamental right to be promoted to a higher post at least he has a fundamental right to be considered for promotion. Moreover, in a welfare State it is only fair, just and proper that a Government servant must have chances of promotion in his service. 6. Another fact which has been brought to the notice of this Court was that the amended rules were brought on 25.06.2013 whereas in Udham Singh Nagar Treasury a post of Accounts Clerk fell vacant on 22.06.2013 i.e. prior to two days when this amended rules had not become effective. Therefore, there was a post available to the petitioner in any case on 22.06.2013, thereafter the post itself has merged with the post of Assistant Accountant. 7. Be that as it may, the fact remains that the respondents must frame scheme giving fair chance of promotion to the petitioner, which can only now be done to the post of Assistant Accountant. This Court has been informed that there are total 326 posts of Assistant Accountant in the different Treasuries in Uttarakhand are vacant. The Government can fix certain percentage of posts for promotion from eligible Class-IV employees, after fixing a prescribed qualification and if need be a qualifying test, so that eligible and competent candidate may be given opportunity of promotion to that post. 8. Let the needful be done as expeditiously as possible, though no interference is being made in the amended Rules of 2003. 9. With the aforesaid observation, the writ petition stands disposed.