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2017 DIGILAW 434 (UTT)

Lalit Mohan v. State of Uttarakhand

2017-08-10

ALOK SINGH, K.M.JOSEPH

body2017
JUDGMENT : K.M. JOSEPH, J. 1. Supplementary counter affidavit filed on behalf of respondent No. 3 is taken on record. The Miscellaneous Application will stand disposed of. 2. Petitioner was appointed as Assistant Engineer (Civil) in the year 1983 in the Public Works Department of the undivided State of Uttar Pradesh. He was promoted as Executive Engineer (Civil) on 08.12.1993. He was working in the Hill Sub-Cadre and he was promoted as Superintending Engineer on 17.10.2000. Under the general order of allocation dated 11.09.2001, he stood allocated to the State of Uttarakhand. Pursuant to the recommendation of the DPC, the petitioner and one Sri P.N. Tikku were promoted as Chief Engineer Level-II on 12.12.2007. Annexure No. 2 is produced as Office Memorandum dated 23.06.2003. It is referred to in order to contend that, when the DPC makes recommendation, retirement vacancies are also to be taken note of and, if a vacancy is not filled, it is to be carried forward. The Office Memorandum is further referred to in order to point out that the vacancy is to be treated as a vacancy of the recruitment year during which it fell vacant whenever it is considered. Sri R.C. Mittal, who was holding the sole post of Chief Engineer Level-I, retired on 31.01.2008. Sri P.N. Tikku was recommended and appointed by way of promotion by order dated 23.04.2008 as Chief Engineer Level-I. Sri P.N. Tikku retired on 30.04.2008. It is the case of the petitioner that he was the only eligible candidate to be considered for the post of Chief Engineer Level-I. He was given the officiating charge by Annexure No. 4 dated 30.04.2008 in regard to the post of Chief Engineer Level-I. Petitioner has produced a note-sheet of November, 2009 as Annexure No. 5. Annexure No. 6 is the copy of the Minutes of DPC held on 29.01.2008. Petitioner filed a representation dated 05.04.2010 (Annexure No. 7). 3. Thereafter, petitioner filed Writ Petition (S/B) No. 294 of 2010, which was disposed of on 23.12.2010 as follows: “According to the petition, the post of Chief Engineer, Level – I is lying vacant since 30th April, 2008 and the petitioner is discharging on officiating capacity the duties of Chief Engineer, Level – I. The present writ petition is for a direction to constitute Departmental Promotion Committee and to consider the case of the petitioner for promotion to the said post. 2. 2. It being not in dispute that the post in question is lying vacant since 30th April, 2008, we dispose of this writ petition by directing the respondents to constitute an appropriate Departmental Promotion Committee and to consider the case of all eligible candidates and thereupon to supply the vacancy as quickly as possible, but not later than three months from the date of service of a copy of this order upon respondent No. 1.” 4. Petitioner avers that he came to know that Writ Petition (S/B) No. 16 of 2008 had been filed by one Sri J.K. Pant and it came to be disposed of on 30.11.2010 with the following directions: (i) The writ petitioner shall be given notional promotion w.e.f., 13.06.2001 to the post of Superintending Engineer, the date on which Junior to him was given promotion in the State of Uttarakhand. (ii) The writ petitioner shall be given notional promotion to the post of Chief Engineer, level-II, w.e.f. 12.12.2007, the date on which respondent no. 5 was given the promotion to said post. (iii) Since the writ petitioner has retired from service as Superintending Engineer in February 2008, he shall be entitled to the pensionery benefits only, arising out of the notional promotions directed to be given to the petitioner from the date of his retirement.” 5. Annexure No. 10 purports to be order dated 13.04.2011. Petitioner has a complaint that the DPC was not constituted within a period of three months from the date of the order passed in the writ petition filed by him, namely, Writ Petition (S/B) No. 294 of 2010. Petitioner relies on the note-sheet of November, 2009, which is produced as Annexure No. 11. According to him, the note-sheet would reveal the attitude of the department towards the petitioner in the matter of giving him further promotion. It be noted at this juncture that the petitioner belongs to the Scheduled Caste community (it be also noted that the petitioner got accelerated promotion as Superintending Engineer). Annexure No. 12 purports to be another note-sheet dated 12.12.2011. In the meantime, another post of Chief Engineer Level-I was created. Also a post of Engineer-in-Chief was created on 12.12.2011. Annexure No. 13 is produced to show that, on 16.01.2014, more persons were appointed as Chief Engineer Level-II, including respondent Nos. 3 to 5. Annexure No. 14 is the note-sheet by which respondent Nos. In the meantime, another post of Chief Engineer Level-I was created. Also a post of Engineer-in-Chief was created on 12.12.2011. Annexure No. 13 is produced to show that, on 16.01.2014, more persons were appointed as Chief Engineer Level-II, including respondent Nos. 3 to 5. Annexure No. 14 is the note-sheet by which respondent Nos. 1 & 2 decided to constitute a DPC in regard to the posts of Chief Engineer Level-I. It is the case of the petitioner that the DPC failed to appreciate that one of the two vacancies of Chief Engineer Level-I was of the year 2007-2008 and the petitioner was the only person eligible in respect of the vacancy, which arose in the year 2007-2008. The DPC recommended the names of respondent Nos. 3 & 4 for the post of Chief Engineer Level-I. By Annexure No. 16 dated 17.09.2014, respondent Nos. 3 & 4 were appointed as Chief Engineer Level-I. Annexure No. 17 is dated 17.09.2014, by which respondent No. 3, who in fact was acting as Chief Engineer Level-II, is stated to have been relieved of his duties and given the duties as Engineer-in-Chief. Annexure No. 18 dated 17.09.2014 is produced to show that the petitioner, who was in fact given the charge of Engineer-in-Chief, was made Advisor to the Government of Uttarakhand. It is the case of the petitioner that, though respondent Nos. 3 & 4 were on probation, the period of probation was relaxed and respondent No. 1 recommended respondent No. 3 for the post of Engineer-in-Chief. By Annexure No. 21, respondent No. 5 was recommended for the post of Chief Engineer Level-I. By Annexure No. 24 dated 30.09.2014, respondent No. 3 was promoted as Engineer-in-Chief and respondent No. 5 was promoted as Chief Engineer Level-I. 6. Originally, petitioner sought the following reliefs: “(A). Issue an appropriate Writ, Order or Direction in the nature of Certiorari, quashing the Relieving order dated 17.09.2014 of Petitioner passed by the Respondent No. 1 for the post of In-charge Engineer-in-Chief. (B). Issue an appropriate Writ, Order or Direction in the nature of Certiorari, quashing the order dated 30.09.2014 passed by Respondent No. 2 for appointing the Respondent No. 3 to the post of Engineer-In-Chief in the PWD Uttarakhand. (C). (B). Issue an appropriate Writ, Order or Direction in the nature of Certiorari, quashing the order dated 30.09.2014 passed by Respondent No. 2 for appointing the Respondent No. 3 to the post of Engineer-In-Chief in the PWD Uttarakhand. (C). Issue an appropriate Writ Order or Direction in the nature of Certiorari, quashing the Order dated 30.09.2014 passed by the Respondent No. 2 for appointing the Respondent No. 5 to the post of Chief Engineer Level-I in the PWD Uttarakhand. (D). Issue an appropriate Writ Order or Direction in the nature of Certiorari, quashing the Order dated 17.09.2014 passed by the Respondent No. 2 for appointing the Respondent No. 3 and 4 to the post of Chief Engineer Level-I in the PWD Uttarakhand. (E). Issue an appropriate Writ Order or Direction in the nature of Mandamus directing the Respondent No. 1 & 2 to promote the Petitioner to the post of Chief Engineer Level-I from the date of occurrence of vacancy and to the post of Engineer-in-Chief from 12.12.2011, in view of Para 23 of office memo dated 23.06.2003. (F). Issue an appropriate Writ, Order or Direction in the nature of Mandamus to Respondent No. 1 & 2 to conduct review of DPC dated 16.09.2014 and 26.09.2014 and to consider the claim of Petitioner for appointment to the post of Chief Engineer Level-I in the PWD Department in the State of Uttarakhand.” 7. Subsequently, petitioner amended the writ petition and he further sought the following prayers: “(I). Issue a Writ, Order or Direction in the nature of Certiorari thereby quashing the Government Order issued by the Respondent No. 1 dated 13.04.2011, as it decides the representations of the Petitioner in a highly illegal, malafide, arbitrary and wrongful manner as well as completely in abhorrence of the set rules of the Government. (J). Issue a Writ, Order or Direction in the nature of Certiorari, thereby quashing the order of the Respondent No. 1 issued dated 22.03.2016 granting notional promotion on supernumerary post to the petitioner wherein the Petitioner is entitled to regular promotion to the post of Chief Engineer Level-I from 30.04.2008 and Engineer-in-Chief from 12.12.2011 and as the above order is completely in violation of the established rules. (K). Issue a Writ, Order or Direction in the nature of Mandamus thereby directing the Respondent Nos. (K). Issue a Writ, Order or Direction in the nature of Mandamus thereby directing the Respondent Nos. 1 & 2 to follow the Government order dated 28.04.2005 and to consider the appointment of the Petitioner to the post of Chief Engineer Level-I and Engineer-in-Chief from the relevant dates in light of the aforementioned order. (L). Issue a Writ, Order or Direction in the nature of Mandamus thereby directing the Respondent Nos. 1 & 2 to fulfil the duty cast on them as per the Rules and regulations of the Government and to legally appoint the Petitioner from the relevant dates to the post of Chief Engineer Level-I and Engineer-in-Chief and direct the government to grant the Petitioner all consequential benefits arising thereof including inter alia arrears, back wages and other monetary compensation. (M). To issue a Writ, Order or Direction in the nature of Mandamus to the Respondent Nos. 1 & 2 to treat the appointment of the Petitioner on the post of Chief Engineer Level-II from the date 12.12.2007, and to regularly appoint the Petitioner on the post of Chief Engineer Level-I from the date 30.04.2008 and subsequently on the post of Engineer-in-Chief from the date 12.12.2011.” 8. Pleadings were settled. We have heard Mr. Yuvraj Samant along with Ms. Beena Pande, learned counsel for the petitioner; Mr. Paresh Tripathi, learned Chief Standing Counsel for the State; and Mr. B.D. Upadhyaya, learned Senior Counsel assisted by Mr. M.C. Pant, learned counsel for respondent No. 3. Though served, there is no representation for the other party respondents. 9. Learned counsel for the petitioner would submit that this is a case, where the petitioner was promoted as Chief Engineer Level-II on the basis of the recommendation of the DPC on 12.12.2007. Under Annexure No. 2, in view of the fact that a retirement vacancy was to arise, as per the procedure, DPC should have made recommendation in respect of the retirement vacancy of Chief Engineer Level-I, which was to arise on 01.05.2008 on the retirement of the previous incumbent (Sri P.N. Tikku, who retired on 30.04.2008). Under Annexure No. 2, in view of the fact that a retirement vacancy was to arise, as per the procedure, DPC should have made recommendation in respect of the retirement vacancy of Chief Engineer Level-I, which was to arise on 01.05.2008 on the retirement of the previous incumbent (Sri P.N. Tikku, who retired on 30.04.2008). As far as the judgment of this Court in the writ petition filed by Sri J.K. Pant (WPSB No. 16 of 2008) is concerned, learned counsel for the petitioner would point out that, though it was found that the promotion of the petitioner as Chief Engineer Level-II was illegal as it was in excess of the reservation permitted and it was not in terms of the roster points fixed, the Court may note that the order of promotion of the petitioner was not interfered with; instead, Sri J.K. Pant, who had retired, was only given notional promotion and pensionary benefits were to be considered. He would further point out that, as far as order dated 13.04.2011 is concerned, the same substantially reads as follows: “With reference to the aforesaid orders of the Hon’ble High Court, in order to review the promotion made to the post of Chief Engineer Level-2, on 12.12.07, a meeting of the Departmental Promotion Committee was held on 18.03.11, as per the recommendations of the Departmental Promotion Committee, the process for selection on the post of Chief Engineer Level-2, is in progress. Even after regular selection on the post of Chief Engineer Level-2, as per the provisions of Rule 10(2) of Uttar Pradesh Engineering Service (Public Works Department) Higher Rules 1990, Chief Engineer Level-2 would remain on probation for a period of six months. In this way, even after regular selection on the post of Chief Engineer Level-2, the desired personnel would be eligible for promotion to the post of Chief Engineer Level-1 only after 06 months. In this way, even after regular selection on the post of Chief Engineer Level-2, the desired personnel would be eligible for promotion to the post of Chief Engineer Level-1 only after 06 months. At present no regular employee is working on the 02 posts of Chief Engineer Level-2 which have been created, for this reason, in compliance with the order dated 23.12.10 of the Hon’ble High Court, it is not possible to initiate the process of selection to the post of Chief Engineer Level-1 and accordingly, the Petitioner Shri Lalit Mohan is not eligible for promotion to the post of Chief Engineer Level-1, as a result of this at present it is not possible to grant him regular promotion to the post of Chief Engineer Level-1.” 10. It is to be noted that the said order was passed based on the decision in J.K. Pant’s case and also the direction given by this Court in the case of the petitioner. The reason given was that the petitioner was not appointed regularly and, secondly, he had not completed his probation. It is contended that, as far as the period of probation is concerned, others have been given the relaxation. In fact, learned counsel for the petitioner would point out that even Sri P.N. Tikku, who was appointed along with the petitioner under Annexure No. 1 order dated 12.12.2007, was only given provisional promotion as Chief Engineer Level-II and, still, he was considered and given promotion as Chief Engineer Level-I by order dated 23.04.2008 provisionally. 11. It is also necessary to refer to the order dated 22.03.2016. It reads as follows: “From: Arvind Singh Hyanki, Secretary Incharge, Uttarakhand Govt. To The Chief Engineer, Public Works Department, Uttarakhand, Dehradun. Public Works Department-1 Dehradun, Dated 22 March, 2016 Subject: Regarding creation of the posts in the cadre of Chief Engineer Level-2. Sir, This is to inform you on the aforesaid subject that letter No. 2054(PWD)/Engr.2001-190(PWD)/2001 dated 11.07.2001, had been issued regarding the restructuring of the 02 posts of Chief Engineer Level-2, created in the Public Works Department for Scheduled Caste category. The promotion of Shri Lalit Mohan, the then Superintending Engineer had been made on 12.07.2002 against one reserved post for Scheduled Caste category. The promotion of Shri Lalit Mohan, the then Superintending Engineer had been made on 12.07.2002 against one reserved post for Scheduled Caste category. Against the promotion of Shri Lalit Mohan, Shri J.K. Pant, Superintending Engineer, who was senior to him, had filed a Writ Petition in the Hon’ble High Court being Writ Petition No. 16/SB/2008. The Hon’ble High Court, vide its order dated 30.11.2010, dismissed the aforesaid promotion of Shri Lalit Mohan. As a result of this, a Departmental Promotion Committee was constituted on 18.03.2011, and as per the recommendation made by it, Shri J.K. Pant was granted notional promotion from the date of promotion of Shri Lalit Mohan i.e. 12.12.2007 to the post of Chief Engineer Level-2, vide Office Memorandum No. 14.12.2012. 2. The Departmental Promotion Committee had recommended the promotion of Shri Lalit Mohan against the reserved post of Chief Engineer Level-2 for the year 2010-11 with the condition that while issuing orders with regard to the promotion of Shri Lalit Mohan, the cognizance of orders dated 25.02.2011 and 06.07.2011 passed by the Hon’ble High Court in Writ Petition No. 45/SB/2011 V.P. Nautiyal vs. State, should also be taken. In view of the interim orders passed by the Hon’ble High Cuort in the Writ Petition, the State Government could not take any action regarding promotion of Shri Lalit Mohan to the reserved posts of Chief Engineer Level-2 out of the reserved quota of 2010-11 and Shri Lalit Mohan continued to work on the post of Chief Engineer Level-2 as before. The Hon’ble High Court, as a result of setting aside of Section 3(7) regarding reservation in the promotion, issued vide order dated 10.07.2012 in the aforesaid petition, the orders for promotion of Shri Lalit Mohan to the post of Chief Engineer Level-2 for the reserved quota for the year 2010-11 were not issued. 3. After promotion of Shri Lalit Mohan to the post of Chief Engineer Level-2 on 12.12.2007, and as he had been continuously working on this post it does not appear to be practically appropriate to repatriate him as on date. 3. After promotion of Shri Lalit Mohan to the post of Chief Engineer Level-2 on 12.12.2007, and as he had been continuously working on this post it does not appear to be practically appropriate to repatriate him as on date. In view of this, the Department of Personnel, after due consideration, made a recommendation with respect to Shri Lalit Mohan and observed that a roster prepared for promotion to the post of Chief Engineer Level-2, and the posts which are earmarked for unreserved category at Serial No. 4 and 5, and as no appointment has been made in respect of these posts, those posts be filled and Shri Lalit Mohan be promoted w.e.f. 12.12.2007. Two posts should be created for this purpose, and these supernumerary posts will be automatically come to an end as and when the persons appointed on these posts are promoted or when they retire from service. 4. Therefore, in view of the approval granted by the Finance Department on the aforesaid recommendation of the Department of Personnel, I am directed to say that the Governor has granted the approval for creation of two posts in the cadre of Chief Engineer Level-2 in the Public Works Department in the pay scale of Rs. 37400-67000, in the Grade Pay of Rs. 8900 for promotion of suitable persons on these posts w.e.f. 12.12.2007 till 31.10.2009, or till the date of retirement of these Engineers, on the following conditions: (1) On promotion of the employee, who is senior to Shri Lalit Mohan, to the post of Chief Engineer Level-2, or after the retirement of the concerned Engineer, the aforesaid two created posts of Chief Engineer Level-2, will automatically expire. 5. The aforesaid order has been issued after the grant of approval by the Department of Finance vide Letter No. 1219/XXVII(2)/16 dated 16 March, 2016. Yours truly Sd/- (Arvind Singh Hyanki)” 12. Learned counsel for the petitioner also took us through the notes prepared, which are produced as Annexure No. 11. They read as follows: NOTING AND ORDERS JOINT SECRETARY: Please refer to the noting of Administrative Department from the previous page 1. In this file, the Administrative Department has made available the proposal for holding meeting of the Selection Committee for filling up the one vacant post of Chief Engineer- with the grade pay of Level 1 (Head of the Department). 2. In this file, the Administrative Department has made available the proposal for holding meeting of the Selection Committee for filling up the one vacant post of Chief Engineer- with the grade pay of Level 1 (Head of the Department). 2. The Administrative Department has informed that 01 post of Chief Engineer Level-1 (Civil) has been created in the Public Works Department in the pay scale of Rs.37400-67000 with the equivalent Grade Pay of Rs.10,000/- This post has fallen vacant on 30.04.2000 due to the retirement on superannuation of Shri P.N. Tikku. 3. In Rule 5(4) of Uttar Pradesh Engineering Service (Public Works Department) Higher Rules 1990, there is a provision for selection on promotion to the grade of Chief Engineer Level-1 (Civil) out of the regularly appointed Chief Engineer Level-2 (Civil). As per Rule 8(3) of the aforesaid Rules, of Uttar Pradesh (on the posts outside the purview of Public Service Commission) (Selection Eligibility Rules, 2003), for preparing the eligibility list and for selection, the bench mark criteria is “Excellent”. 4. Due to creation of only 01 post of Chief Engineer Level-1 in the Public Works Department, the roaster would not be applicable in the concerned cadre. Due to the aforesaid system of the Rules, at present only 01 officer Shri Lalit Mohan Chief Engineer (Level-2) comes in the category of eligibility. I the aforesaid seniority list, Shri Lalit Mohan is at seniority no.38, and as per the seniority list, 14 Engineers are senior to Shri Lalit Mohan, but all the Engineers senior to him are at present working on the post of Executive / Superintending Engineers and for this reason they do not come within the eligibility criteria. 5. Besides the aforesaid, the Administrative Department, having perused the Confidential Reports of 10 previous years, and due to non-pending of departmental proceedings/administrative inquiry against him, and because he is having the certificate of undisputed seniority, a noting has been made for perusal by the Selection Committee, requesting it to select him on the post of Chief Engineer Level-1. 6. 5. Besides the aforesaid, the Administrative Department, having perused the Confidential Reports of 10 previous years, and due to non-pending of departmental proceedings/administrative inquiry against him, and because he is having the certificate of undisputed seniority, a noting has been made for perusal by the Selection Committee, requesting it to select him on the post of Chief Engineer Level-1. 6. As per the aforesaid, you may like to recommend for holding the meeting of the Selection Committee for selecting one vacant post of Chief Engineer (Level-1), in the pay scale of Rs.37400-67000 with the grade pay of Rs.10,000/-, and seek date and time from the Chief Secretary for the said purpose, and for nominating an officer of the rank of Secretary from the Schedule Caste category to be included in the Selection Committee and you may like to send the file for the order of the Chief Secretary. Sd/- 20.11.09 Joint Secretary All the officers senior to Shri Lalit Mohan (unreserved category) are posted as Executive Engineers/ Superintending Engineers. Shri Lalit Mohan had been promoted from the posts reserved for Scheduled Caste candidates, and was promoted as Chief Engineer Level-2. Only Shri Lalit Mohan is eligible to be promoted on the post of Chief Engineer Level-1. If shri Lalit Mohan is promoted as per the proposal of the Public Works Department, then he will remain on the post of Chief Engineer Level-1. In such a situation, until the unreserved category employees do not become eligible to be promoted as Chief Engineer Level-1, till then making the regular promotion does not appear to be appropriate. You may like to take the decision in the matter as per the position mentioned above. Sd/- 25.11.09 (Ramesh Chand Lohani) Joint Secretary, Personnel Department, Uttarakhand Government Addl. Secretary Please discuss. Sd/- 26.11.09 (Dr. Bhupinder Kaur Alakh) Additional Secretary, Vigilance, Personnel, Reorganization, Public Works Department, Uttarakhand Government Discussed today. You may like to see pages 11, 12. DPC is to be held for the post of Chief Engineer-1 in the PWD Department. As per Rules, for promotion to the post of CE-I, the promotion be made out of the regularly appointed CE-II (Chief Engineer-II). At present, only Shri Lalit Mohan comes in the eligible category. It is correct that in case he is promoted to the post of CE-I, he will remain on this post till 2018. As per Rules, for promotion to the post of CE-I, the promotion be made out of the regularly appointed CE-II (Chief Engineer-II). At present, only Shri Lalit Mohan comes in the eligible category. It is correct that in case he is promoted to the post of CE-I, he will remain on this post till 2018. While making recommendation for DPC, you may like to take the date and time from the Chief Secretary. Sd/- 1.12.09 (Dr. Bhupinder Kaur Alakh) Additional Secretary, Vigilance, Personnel, Reorganization, Public Works Department, Uttarakhand Government Chief Secretary Discussed with the Secretary, He has directed that the position be ascertained on C.E.II first and then promotions be made on the post of C.E.-II, so that other officers also become eligible for the post of C.E.-1. Sd/- 4.12.2009 Personnel-2 Sd/- 8.12.09 (Ramesh Chand Lohani) Joint Secretary, Personnel Department, Public Works Department, Uttarakhand Government Under Secretary This is to inform that in the present file, the case for promotion from Chief Engineer Level-1 is being processed. 2. The proposal for selection to the post of Chief Engineer Level-1, was sent to the Personnel Department as per prescribed format of the Personnel Department, and had prepared the details of the eligible officers on the required documents for holding the meeting of the Selection Committee for filling up the 01 post of Chief Engineer Level-1. 3. On 15.12.09, the file was received directly from the section, the Personnel Department has given the advice on the file that:- The position be first ascertained on C.E.-2, and then promotions be made on the post of C.E.-2, so that other officers may also become available for the post of C.E.-1. You may like to inform the Additional Secretary/ Secretary about the aforesaid advice, and may further advice in the matter. Sd/- 17.12.09 The advice rendered by the Personnel Department at page 7 is logical. Therefore, action be taken accordingly and the proposal for promotions of all officers working on the post of Chief Engineers Level-1I, and such proposal for promotion would be appropriate. Sd/- 26.12.09 (Mahima) Under Secretary, Public Works Department, Uttarakhand Government Deputy Secretary For recommendation please. Sd/- 11.1.2010 Pradeep Singh Rawat Deputy Secretary, Public Works Department, Uttarakhand Government Additional Secretary The advice of the Personnel Department is to be seen. The proposal should be prepared for CE-II at the Government level. Submitted for approval please. Sd/- 11.1.10 (Dr. Sd/- 26.12.09 (Mahima) Under Secretary, Public Works Department, Uttarakhand Government Deputy Secretary For recommendation please. Sd/- 11.1.2010 Pradeep Singh Rawat Deputy Secretary, Public Works Department, Uttarakhand Government Additional Secretary The advice of the Personnel Department is to be seen. The proposal should be prepared for CE-II at the Government level. Submitted for approval please. Sd/- 11.1.10 (Dr. Bhupinder Kaur Alakh) Additional Secretary, Vigilance, Personnel, Reorganization, Public Works Department, Uttarakhand Government Secretary For immediate action please. (Utpal Kumar Singh) Secretary, P.W.D. Uttarakhand Government AS, PWD” 13. In particular, learned counsel for the petitioner would emphasise upon the stand of the authorities as reflected in the Noting dated 25.11.2009 of the Joint Secretary. He would submit that it was for this reason that the petitioner was not given the due promotion and injustice has been done to the petitioner. 14. Mr. Paresh Tripathi, learned Chief Standing Counsel, on the other hand, would point out that the petitioner may not be justified in relying upon the Noting dated 25.11.2009 of the Joint Secretary, as he would submit that, subsequent to the same, in fact, the case of the petitioner was recommended for being considered. He would point out, however, that there were developments in the form of interim order dated 25.02.2011 passed by the Court in Writ Petition (S/B) No. 45 of 2011 (Vinod Prakash Nautiyal & others vs. State of Uttarakhand & others), which prevented passing of orders. That litigation was, in fact, launched calling in question reservations being carried out under Section 3(7) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, which is applicable to the State of Uttarakhand also. 15. Learned Chief Standing Counsel would further submit in regard to the effect of the order dated 22.03.2016 that the Government took the view in view of the recommendation of the Personnel Department that, as the petitioner had been working for a period of 6 years as Chief Engineer Level-II, despite the finding in the judgment of this Court in J.K. Pant’s case, it would not be fair to revert the petitioner as Superintending Engineer. He would further contend that, till 21.03.2016, out of the two vacancies of Chief Engineer Level-II, which were created as supernumerary posts, one was filled-up by accommodating Sri J.K. Pant and the petitioner was accommodated against the other vacancy; but on 22.03.2016, petitioner was treated as appointed substantively in the cadre of Chief Engineer Level-II from 12.12.2007. 16. Learned Chief Standing Counsel would draw our attention to the Uttaranchal Promotion by Selection (on Posts Outside the Purview of the Public Service Commission) Eligibility List Rules, 2003. He would submit that the case of the petitioner that he was the only person and, under Annexure No. 2 procedure, he should have been considered, may not hold good having regard to the provision of Rule 4. Rule 4 reads as follows: “4. Preparation of eligibility list where the criterion is merit. – Where the criterion for promotion is merit, the appointing authority shall prepare a list of the senior most candidates containing names as far as possible, three times the number of vacancies subject to the minimum of eight provided that, if recruitment is to be made for vacancies occurring during more than one year of recruitment separate eligibility lists will be prepared in respect of each such year and in such a case while preparing the eligibility list for second and subsequent years of recruitment, the number of candidates to be included in the eligibility list shall be as follows: (1) for the second year: The number according to the said proportion plus the number of vacancies in the first year; (2) for the third year: The number according to the said proportion plus the number of vacancies in the first and second year; and so on; Provided further that candidates who are not considered suitable, prima facie, for promotion shall not be taken into account in calculating the said proportion and a note to the effect that they are not so considered shall be added against their names;” 17. In fact, a perusal of Annexure No. 2 also would show that similar provisions are contained in the said Government Order. 18. Mr. Paresh Tripathi also raised the contention relating to delay in challenging the order dated 13.04.2011, as the said order was challenged after about six years and, that too, by amending the writ petition, which had originally been filed in 2015, and no explanation has been given. 19. Mr. 18. Mr. Paresh Tripathi also raised the contention relating to delay in challenging the order dated 13.04.2011, as the said order was challenged after about six years and, that too, by amending the writ petition, which had originally been filed in 2015, and no explanation has been given. 19. Mr. B.D. Upadhyaya, learned Senior Counsel appearing for respondent No. 3, would, no doubt, submit that there is no order by which the petitioner has been appointed substantively as Chief Engineer Level-II. He would, further, submit that, in terms of both the order and the Rule, even going by the case of the petitioner that he was the only person eligible to be considered for the post of Chief Engineer Level-I, the minimum number of persons required were not there and, therefore, the case of the petitioner cannot be considered. 20. It is necessary to note that, as far as respondent Nos. 3, 4 & 5 are concerned, they are indeed appointed earlier than the petitioner in the cadre of Assistant Engineer. Respondent Nos. 3, 4 & 5, though senior to the petitioner in the cadre of Assistant Engineer, were given notional promotion in the cadre of Superintending Engineer only on 13.12.2007. As far as the petitioner is concerned, he was given promotion, be it noted, on 17.10.2000. The next higher post is the post of Chief Engineer Level-II. It is under the impugned orders that respondent No. 3 has been promoted on 27.09.2013 as Chief Engineer Level-II under the proceedings of the DPC as we have noticed and respondent Nos. 4 & 5 were promoted on 17.01.2014 as Chief Engineer Level-II. 21. In this case, the essential question to be decided is whether the petitioner is entitled to be considered for the post of Chief Engineer Level-I ahead of respondent Nos. 3 to 5 and, therefore, also to the post of Engineer-in-Chief in preference to respondent No. 3. 22. Petitioner was promoted to the post of Chief Engineer Level-II on the basis of the recommendation of the DPC, but provisionally, by order dated 12.12.2007. That promotion was called in question by Sri J.K. Pant. It is true that the promotion of the petitioner was found to be flawed; but we have also noticed the relief, which has been granted. Petitioner was promoted to the post of Chief Engineer Level-II on the basis of the recommendation of the DPC, but provisionally, by order dated 12.12.2007. That promotion was called in question by Sri J.K. Pant. It is true that the promotion of the petitioner was found to be flawed; but we have also noticed the relief, which has been granted. It may not be inaccurate to say that, actually, the order promoting the petitioner was not interfered with by the Court though such a relief was prayed for; instead, the Court thought it fit to grant notional promotion to the petitioner Sri J.K. Pant. Petitioner was asked to officiate as Chief Engineer Level-I on the retirement of Sri P.N. Tikku on 30.04.2008. Thereafter, he was asked to officiate as Engineer-in-Chief and he was discharging the said functions. He was relieved, however, from the duties and functions of Engineer-in-Chief when respondent No. 3 was appointed as Engineer-in-Chief. In regard to the post of Chief Engineer Level-I, petitioner had approached this Court and this Court had directed consideration of his case. It culminated in order dated 13.04.2011. The case of the petitioner was rejected. The reason for rejection was that the petitioner was not appointed regularly as Chief Engineer Level-II and further that he has not commenced and completed the period of probation of six months in the said post. 23. As far as the objection that the petitioner is not promoted regularly as Chief Engineer Level-II is concerned, we take note of the stand of Mr. Paresh Tripathi, learned Chief Standing Counsel, that, after the issuance of order dated 22.03.2016, petitioner is to be treated as substantively appointed Chief Engineer Level-II w.e.f. 12.12.2007. 24. The further hurdle necessarily going by order dated 13.04.2011 is the fact that the petitioner did not complete his probation. 25. The next aspect to be considered going by Annexure No. 2 order is, whether the petitioner can stake a claim to be considered for the post of Chief Engineer Level-I w.e.f. 01.05.2008. The date 01.05.2008 would come within the recruitment year 2007-2008. The recruitment year commences from the first of July of a year and it lasts till the 30th of June of the immediately succeeding year. The date 01.05.2008 would come within the recruitment year 2007-2008. The recruitment year commences from the first of July of a year and it lasts till the 30th of June of the immediately succeeding year. It is clear on a perusal of Annexure No. 2 that, to be considered eligible for appointment to a vacancy, which arises during a recruitment year, the person must be so eligible on the first day of the recruitment year, which is the first of July of the concerned year. If that is considered, quite clearly, petitioner, who was only a Superintending Engineer as on the first of July, 2007, could not stake a claim for promotion in the recruitment year 2007-2008 in regard to the vacancy of Chief Engineer Level-I, which arose on 01.05.2008. Hence, we have no hesitation in rejecting the claim. 26. But, if the petitioner is to be treated as substantively appointed Chief Engineer Level-II w.e.f. 12.12.2007 and, though also his appointment in the cadre of Chief Engineer Level-II was frowned upon by this Court in the writ petition filed by Sri J.K. Pant, his appointment order was not interfered with, he would definitely become eligible in regard to the post of Chief Engineer Level-I, the vacancy which arose on 01.05.2008 and which vacancy was not filled-up and which had to be carried forward to the next year. In other words, even if he is not considered eligible in the recruitment year 2007-2008, he may become eligible for the subsequent years. In the year 2011, one more post of Chief Engineer Level-I was created. This Court had directed by its judgment in 2010 to consider the case of the petitioner. It is to be noted that respondent Nos. 3 to 5 came into the cadre of Superintending Engineer notionally only on 13.12.2007. Though the petitioner had a case that, in order to be considered for appointment as Chief Engineer Level-II, a person must work for six years, he was unable to substantiate the said case and the learned counsel for the petitioner would, in fact, submit that the submission was unfounded, as, under the rules regulating the promotions, there is no such requirement. 27. As far as respondent Nos. 3 to 5 are concerned, they came in the cadre of Chief Engineer Level-II on 27.09.2013, 17.01.2014 and 17.01.2014 respectively. 27. As far as respondent Nos. 3 to 5 are concerned, they came in the cadre of Chief Engineer Level-II on 27.09.2013, 17.01.2014 and 17.01.2014 respectively. As far as the issue relating to probation is concerned, it is true that there is a period of probation of six months. The case of the petitioner, however, is that the said period is one, which was being relaxed. Further, we notice that, if the petitioner was to be treated as regularly appointed as Chief Engineer Level-II from 12.12.2007, the effect of this also is a matter to be considered by the authorities having regard to the order we propose to pass. 28. The further obstacle in the path of the petitioner getting relief is in the form of the requirement of minimum of 8 persons for consideration going by both Annexure No. 2 Government Order and the statutory Rules relied on by Mr. Paresh Tripathi. According to the learned counsel for the petitioner, however, this has been relaxed and, if this Rule is to be strictly applied, then no promotion could possibly take place in all cases. In fact, Mr. Paresh Tripathi also drew our attention to Rule 5 and pointed out that, in the said Rule also, for 1 to 5 vacancies, it is two times the number of vacancies subject to the minimum of 5. So, even in respect of one vacancy, there must be minimum of 5. Therefore, Mr. Paresh Tripathi would submit that the word “minimum” in Rule 4 is not a result of a printer’s devil, as was a doubt entertained by the Court. Having regard to the nature of the order we propose to pass, we do not say anything further. 29. The next hurdle to the petitioner is the fact that the petitioner is challenging order dated 13.04.2011 with laches. There is no period of limitation for a petition under Article 226. A day’s delay can be fatal; whereas, delay in approaching the court running into years may be overlooked by the courts. The courts exercising extra-ordinary discretionary jurisdiction under Article 226 have evolved the doctrine of laches. Stale claims are not entertained as, in particular, they may result in grave injustice to third party rights. A day’s delay can be fatal; whereas, delay in approaching the court running into years may be overlooked by the courts. The courts exercising extra-ordinary discretionary jurisdiction under Article 226 have evolved the doctrine of laches. Stale claims are not entertained as, in particular, they may result in grave injustice to third party rights. In this case, it is true that the petitioner has challenged order dated 13.04.2011 after a period of nearly six years; but, we are also invited by the learned counsel for the petitioner to certain facets. We may notice that the petitioner was given charge as Chief Engineer Level-I on the retirement of Sri P.N. Tikku on 30.04.2008. Still later, when the post of Engineer-in-Chief was created, petitioner was asked to discharge the duties and functions of Engineer-in-Chief. Learned counsel for the petitioner, further, draws our attention to the fact that the petitioner continued to discharge the duties and functions of Engineer-in-Chief, which is the Head of the Department, till the year 2014 when he was relieved pursuant to the appointment of respondent No. 3 as Engineer-in-Chief. It is true that, even at the time of filing the writ petition, relief was not sought; but the learned counsel for the petitioner would submit that the earlier counsel, who was appearing, did not notice this and it was after he was engaged that he thought it fit that it is necessary. The petitioner has filed the writ petition in the year 2015 immediately, apparently, on the passing of the orders giving promotion to the private respondents in the cadre of Chief Engineer Level-I and Engineer-in-Chief to respondent No. 3. We have also noticed the notes of the Government, no doubt, of the year 2009. We did feel disturbed by what was stated in the note of the Joint Secretary particularly. It is relevant, however, to notice that it was a note, which is prepared at a time when the judgment in the petitioner’s case and in J.K. Pant’s case had not come. No doubt, it is also true that the officers at the higher level did process the matter further. It is the case of the petitioner also that it is not the law that a person belonging to the reserved category cannot be considered for a vacancy which is unreserved. It be noted that the post of Chief Engineer –I is an unreserved post. It is the case of the petitioner also that it is not the law that a person belonging to the reserved category cannot be considered for a vacancy which is unreserved. It be noted that the post of Chief Engineer –I is an unreserved post. We say this for the reason that the judgment in Writ Petition (S/B) No. 45 of 2011 (V.P. Nautiyal vs. State) was actually concerned with the issue relating to reservation in promotion. It may not directly have an impact on the promotion to the post of Chief Engineer Level-I, which is not reserved for any category. It is a promotional exercise to be undertaken purely on the basis of merit. In fact, petitioner did point out to us that the Government Orders point to the fact that the person belonging to the reserved category can also aspire for the post which is unreserved and there is no obstacle in regard to the same. In the factual matrix obtaining in this case, we would think that it may not be just to non-suit the petitioner on the ground of laches in challenging the order dated 13.04.2011. 30. Having regard to the circumstances, we would think that interest of justice requires that the matter receives consideration at the hands of the authorities in regard to appointment to the post of Chief Engineer Level-I having regard to the admitted fact that a regular vacancy of Chief Engineer Level-I arose on 01.05.2008 on the retirement of Sri P.N. Tikku and also having regard to the further fact that, under the law as evident from Annexure No. 2 Government Order, the vacancy is to be carried forward and it is to be filled-up on the basis of eligibility obtaining as on the date when the post became vacant. This last aspect also receives further fortification from Rule 4, relied on by Mr. Paresh Tripathi, as it contemplates list being prepared on the basis of year in which the vacancy arises even when the DPC is held subsequently. 31. In such circumstances, we quash order dated 13.04.2011. We direct the Principal Secretary, Public Works Department, to consider the case of the petitioner for promotion to the post of Chief Engineer Level-I on the basis of the occurrence of vacancy of Chief Engineer Level-I on 01.05.2008, which, in law, is to be carried forward till a person is appointed as per law. We direct the Principal Secretary, Public Works Department, to consider the case of the petitioner for promotion to the post of Chief Engineer Level-I on the basis of the occurrence of vacancy of Chief Engineer Level-I on 01.05.2008, which, in law, is to be carried forward till a person is appointed as per law. In doing so, undoubtedly, the Principal Secretary will be free to look into the aspect about probation; but will take into consideration the fact that the period of probation has been relaxed in other cases. The Principal Secretary will also consider the impact of Rule 4 and also Annexure No. 2 Government Order, which provides for a minimum of 8 persons for the matter to be considered. 32. Having regard to the facts obtaining, namely, that it was taking into consideration the vacancy of Chief Engineer Level-I of the year 2008, which we have found has to be carried forward in law into the succeeding years, that respondent Nos. 3 & 4 have been appointed as Chief Engineer Level-I and also respondent No. 3 has been appointed as Engineer-in-Chief, to facilitate a decision being taken in accordance with law, the order dated 30.09.2014 appointing respondent No. 3 to the post of Engineer-in-Chief; order dated 30.09.2014 promoting respondent No. 5 to the post of Chief Engineer Level-I; and order dated 17.09.2014 promoting respondent Nos. 3 & 4 to the post of Chief Engineer Level-I, will stand quashed. It is brought to our notice that respondent Nos. 4 & 5 have retired. We make it clear that respondent No. 3 will be permitted to continue to act as Engineer-in-Chief on the basis of the promotion, which he has been granted. 33. The Principal Secretary will, first of all, consider the question whether the petitioner can be considered having regard to the fact that he has not completed the period of probation. Secondly, he will also consider what is the effect of Rule 4 requiring minimum of 8 persons. If it is found that the case of the petitioner can be forwarded for being considered by the constitution of a DPC, either without there being minimum of 8 persons or after it takes a decision to relax the requirement relating to period of probation for the post of Chief Engineer Level-I, then the case of the petitioner will have to be necessarily placed before the DPC. When it is placed before the DPC, necessarily, if any other eligible person is also there, the case of that person will also have to be considered for the post of Chief Engineer Level-I as per law. 34. Learned Chief Standing Counsel would submit that, actually, the petitioner was allocated finally only on 31.07.2008. If the matter is referred to the DPC, the DPC will consider the same. Petitioner has a case that there was no other stumbling block and the petitioner was always considered otherwise eligible. 35. A decision must be taken by the Principal Secretary within a period of six weeks from the date of production of a certified copy of this judgment. 36. When the matter is considered in the DPC, if the petitioner is found eligible for being considered for appointment as Chief Engineer Level-I before respondent No. 3, the case of the petitioner will also be considered for the post of Engineer-in-Chief. 37. The DPC will conclude the matter as per law within a period of eight weeks from the date on which the Government takes a decision and the DPC is constituted. Necessarily, this is only if the Government takes a decision in favour of the petitioner otherwise. 38. The writ petition is, accordingly, disposed of.