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2016 DIGILAW 832 (UTT)

Shailesh Pant v. State of Uttarakhand

2016-11-16

SUDHANSHU DHULIA

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JUDGMENT : 1. Rejoinder affidavit filed by the petitioner today in the Court is taken on record. 2. The petitioner is an employee in the Clerical cadre in the Education Department. He joined his services as Junior Assistant in Government Inter College in Pithoragarh in the month of September, 2003. Presently, the Ministerial cadre post, which we are concerned, consists of three levels. The entry level post is called Junior Assistant. A Junior Assistant can be promoted to the post of Senior Assistant and Senior Assistant is thereafter liable to be promoted to the post of Chief Assistant. The promotions from Junior Assistant to Senior Assistant and thereafter from Senior Assistant to Chief Assistant is done on the basis of seniority subject to the rejection or unfit. 3. Admittedly promotion from the post of Junior Assistant to Senior Assistant is a regional level promotion. Admittedly, there are two regions in the State of Uttarakhand i.e. Kumaon Region and Garhwal Region. As per rule, a Junior Assistant, who has put in six years of service as a Junior Assistant on the substantive service become eligible for promotion to the post of Senior Assistant. According to the petitioner, he has completed six years of service in the year 2009 itself and the vacancies of Senior Assistant were available even at the relevant time whereas he was only promoted in the year 2011. 4. Meanwhile, other Junior Assistants in another region i.e. Garhwal Region, who were junior to the petitioner, inasmuch as they were appointed after September, 2003, took a march over to the petitioner, as they were promoted to the post of Senior Assistant earlier i.e. in the year 2010 and later. 5. Now, the question is of promotion to the post of Chief Assistant in the present case. Admittedly, for the post of Chief Assistant, the minimum requirement is of 10 years of total service in the Clerical cadre and at least 3 years substantive service as Senior Assistant. When the promotions were being considered for the year 2014-15, the candidature of the petitioner has not been considered inasmuch on 01.07.2014, which was the relevant date for consideration of eligibility, the petitioner had not put in three years of substantive service as Senior Assistant, which was done admittedly within three years. When the promotions were being considered for the year 2014-15, the candidature of the petitioner has not been considered inasmuch on 01.07.2014, which was the relevant date for consideration of eligibility, the petitioner had not put in three years of substantive service as Senior Assistant, which was done admittedly within three years. The case of the petitioner has not been considered, hence he filed the present petition, seeking following relief: (i) Issue a writ, order or direction in the nature of mandamus declaring and holding that non-grant of promotion to the petitioner w.e.f. 29.07.2015 when juniors to him were promoted as Chief Assistant is bad in law. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to promote the petitioner as Chief Assistant w.e.f the due date (i.e. 29.07.2015) when juniors to him have been promoted keeping in view a large number of vacancies of the promotional post. 6. The case of the petitioner is that many of the Senior Assistants, who were appointed as Junior Assistants subsequent to the petitioner, were hence junior to him, however, they have been considered in the said promotional exercise. Their case is purely an fortuitous circumstances, inasmuch as the posts of Senior Assistant in the Garhwal Region were filled earlier and in the Kumaon Region later. The petitioner, though became eligible in 2009 itself, yet was promoted to the post of Senior Assistant only in December, 2011. 7. The petitioner relies upon Rule 4 of the Uttarakhand Government Servants Relaxation in Qualifying Service for Promotion Rules, 2010, which reads as under:- “Relaxation in Qualifying Service 4. The petitioner, though became eligible in 2009 itself, yet was promoted to the post of Senior Assistant only in December, 2011. 7. The petitioner relies upon Rule 4 of the Uttarakhand Government Servants Relaxation in Qualifying Service for Promotion Rules, 2010, which reads as under:- “Relaxation in Qualifying Service 4. In case a post is filled by promotion and for such promotion a certain minimum length of service is prescribed on the lower post or posts, as the case may be, and the required number of eligible persons are not available in the field of eligibility, such prescribed minimum length of service may be suitably relaxed upto fifty percent by the Administrative Department in consultation with the Personnel Department of the Government, excluding the period of probation as laid down for the said lower post or posts as the case may be: Provided that relaxation in prescribed qualifying service for promotion will be allowed once in entire service tenure of any employee; Provided further that the employees, who have availed the benefit of relaxation of prescribed qualifying service for promotion earlier, shall not be entitled for such benefit again.” 8. According to the petitioner, the aforesaid Rules have been framed only with a view of meeting the contingency which is at hand. The contention of the petitioner, even as of now, is that more than 250 posts of Chief Assistants are still lying vacant with the Department, which has been admitted by the respondents. Even in the exercise for 2014-15 it is not a case that all posts of Chief Assistants were filled up but due to the fact that the eligible candidates were not available, these posts could not be filled. This remains an admitted fact. Therefore, it was absolutely necessary that relaxation in the qualifying service was liable to be given to the petitioner under Rule of 2010 (referred above), particularly in view of the circumstances above, many of the Senior Assistants have been promoted to the post of Chief Assistant. The State in its counter affidavit has remained silent on this aspect. 9. There is another apprehension, however, which has been raised by the learned counsel for the State that in case relaxation is given to the petitioner, it would open floodgate for many other persons, who would be filing writ petitions before this Court for similar relief for relaxation in their cases as well. 9. There is another apprehension, however, which has been raised by the learned counsel for the State that in case relaxation is given to the petitioner, it would open floodgate for many other persons, who would be filing writ petitions before this Court for similar relief for relaxation in their cases as well. It is hence made clear that interference of this Court is being made in the present matter purely of relaxation but primary factor being that many of the Junior Assistants have been promoted to the post of Senior Assistant, who were actually junior to the petitioner. They were promoted purely on fortuitous circumstances inasmuch as in their Region i.e. Garhwal Region the vacancies of Senior Assistant filled earlier or the promotional exercise was made earlier than what it was done in the Kumaon Region. The petitioner being employee in the Kumaon Region, therefore, cannot be punished where admittedly the fact is that he was senior to many of the Junior Assistants, who were promoted to the post of Senior Assistant earlier to the present petitioner. It is also made clear that such relaxation can be given once in a life time. 10. The writ petition is hence allowed. A mandamus is hereby issued to the respondents to promote the petitioner to the post of Chief Assistant, unless there is any other ineligibility or disqualification attached to the petitioner and his promotion shall be considered from the date when others i.e. including his junior have been promoted to the post of Chief Assistant. It is, however, made clear that as far as payment of salary is concerned, the petitioner should be given salary only from the date when he joined the post of Chief Assistant. However, he shall be given notional benefit from the date his juniors have been promoted.