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2018 DIGILAW 494 (UTT)

RAMESH KUMAR SHARMA v. STATE OF UTTARAKHAND

2018-12-11

LOK PAL SINGH, RAMESH RANGANATHAN

body2018
JUDGMENT Ramesh Ranganathan, C.J. (Oral) Mr. Subhash Upadhyaya, Advocate holding brief of Mr. Subhang Dobhal, learned counsel for the appellant. 2. Mr. J.C. Pandey, learned Brief Holder for the State of Uttarakhand/respondent no. 1. 3. Mr. Bhagwat Mehra, learned counsel for respondent nos. 2 and 3. 4. Mr. Pradeep Kumar Chauhan, learned counsel for respondent no. 4. 5. This appeal is preferred against the order passed by the learned Single Judge in Writ Petition no. 1597 (S/S) of 2014, dated 31.05.2018. Selections were held for appointment on the post of Senior Administrative Officers. While both the appellant and the respondent-writ petitioner participated in the selection process, the appellant stood at serial no. 1 in the merit list, while the respondent-writ petitioner stood at serial no. 4. Questioning the appointment of the appellant as a Senior Administrative Officer, the respondent-writ petitioner invoked the jurisdiction of this Court by filing Writ Petition (S/S) no. 1597 of 2014. However, he chose not to array the candidate, who stood at serial no. 2 and 3 in the merit list, as party respondents in the writ petition. 6. The case of the petitioner is that, in terms of Rule 3 of the Uttarakhand Subordinate Civil Courts Ministerial Establishment Rules, 2007 (for short the “2007 Rules"), it is employees in the feeder category who are to be considered for promotion to the post of Senior Administrative Officer; Rule 3 of the 2007 Rules prescribes the cadre of service; thereunder the ministerial service shall consist of the following classes and categories of officials employed in each Judgeship and Family Courts in Uttarakhand; under the head ‘Civil Courts' are prescribed various posts, including that of Senior Administrative Officer in clause ‘e' of Rule 3; appointment to the post of Senior Administrative Officer is by promotion or selection from amongst categories ‘c' and ‘d' who have put at least ten years of service; in category ‘c' are included the posts of Munsarim and Readers of the Courts of the District Judge/Addl. District Judges/Chief Judicial Magistrate/Addl. District Judges/Chief Judicial Magistrate/Addl. Chief Judicial Magistrate; Central Nazir, Record Keeper, Head Copyist and 2nd Clerk; Clause ‘d' contains the posts Sadar Munsarim; the appellant-fourth respondent did not fall under either category ‘c' or ‘d' of Rule 3; he fell under category ‘h' which relates to the Personal Assistants to the Courts of District and Sessions Judge; as the appellant-fourth respondent did not belong to the feeder category, for promotion, the post of Senior Administrative Officer, he was ineligible to be considered for promotion to the post of Senior Administrative Officer; and the mere fact that the respondent-writ petitioner participated in the selection process did not disable him from questioning the promotion of the appellant-fourth respondent as his promotion was contrary to the 2007 Rules. 7. Mr. Pradeep Kumar Chauhan, learned counsel for the respondent-writ petitioner, would submit that it is not as if the petitioner had quietly participated in the selection process, and had then questioned appointment of the appellant-fourth respondent as a Senior Administrative Officer; the petitioner had submitted a representation, even before the selection process commenced, pointing out that the appellant was ineligible; the mere fact that Rule 20(5) also enables Senior Personal Assistants to be considered would not justify the appellant being promoted, since he is admittedly not in the feeder category of posts referred to in clauses ‘c' and ‘d' of Rule 3. 8. On the other hand, Mr. Subhash Upadhyaya, learned counsel for the appellant-fourth respondent would submit that the appellant was eligible to be considered for promotion to the post of Senior Administrative Officer, as he was a Senior Personal Assistant covered by Rule 20(5) of the 2007 Rules; the respondent-writ petitioner, having participated in the selection process, had acquiesced to the selection process; he could not thereafter turn out and question the very selection process in which he had participated; the validity of Rule 20(5) is not even under challenge in the writ petition; and, in any event, the respondent-writ petitioner could not have been promoted as a Senor Administrative Officer, as he was at serial no. 4 of the merit list, and there were two other candidates between the appellant-fourth respondent who stood firm in the merit list, and the respondent-writ petitioner who stood at serial no. 4 in the merit list. 9. 4 of the merit list, and there were two other candidates between the appellant-fourth respondent who stood firm in the merit list, and the respondent-writ petitioner who stood at serial no. 4 in the merit list. 9. While Personal Assistants are in category ‘h' of Rule 3, and do not form the feeder category for promotion to the post of Senior Administrative Officer, as promotion to the said post is restricted only from the feeder categories in clauses ‘c' and ‘d' of Rule 3, the fact remains that Rule 20(5) of the 2007 Rules requires the case of Senior Personal Assistants also to be considered by the District Judge for the post of Senior Administrative Officer. It is not in dispute that Senior Personal Assistants can be considered for promotion to the post of Senior Administrative Officer under Rule 20(5) of the 2007 Rules. The surprise expressed by the learned Single Judge in the order under appeal, as to how a person, who was not in the feeder category (under clauses ‘c' and ‘d' of Rule 3) could have been considered for promotion to the post of Senior Administrative Officer in clause ‘e' of Rule 3, and that it was not known as to how Senior Personal Assistants were brought in the feeder category in terms of Rule 20(5) of the 2007 Rules, is unjustified. It must be borne in mind that like Plenary legislation, there is a presumption regarding the constitutionality of Rules also. The present Rules were made by the Government of Uttarakhand in exercise of the powers conferred on them under the proviso to Article 309 of the Constitution of India. As there is a presumption regarding the constitutionality of Rules, the Court must proceed on the premise that the Rules are valid, in the absence of any challenge to its validity. 10. The respondent-writ petitioner has, admittedly, not challenged the validity of Rule 20(5) of the 2007 Rules. In the absence of any challenge thereto, the learned Single Judge could not have ignored Rule 20(5) which also requires Senior Personal Assistants to be considered, by the District Judge, for promotion to the post of Senior Administrative Officer. While we find considerable force in the submission of Mr. In the absence of any challenge thereto, the learned Single Judge could not have ignored Rule 20(5) which also requires Senior Personal Assistants to be considered, by the District Judge, for promotion to the post of Senior Administrative Officer. While we find considerable force in the submission of Mr. Subhash Upadhyay, learned counsel for the appellant, that the respondent-writ petitioner could not have been granted the relief of being considered for promotion as there were two other candidates above him in the merit list, it is unnecessary for us to dwell on this aspect, as, in the absence of any challenge to the validity of Rule 20(5) of the 2007 Rules, the appellant-fourth respondent, a Senior Personal Assistant, must be held to be eligible to be considered for appointment to the post of Senior Administrative Officer. 11. The order under appeal is set aside. The appeal is allowed upholding the action of the District Judge in promoting the appellant-fourth respondent, a Senior Personal Assistant, as Senior Administrative Officer in terms of Rule 20(5) of the 2007 Rules. 12. No costs.