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2019 DIGILAW 228 (UTT)

V. K. Tamta v. State of Uttarakhand

2019-03-20

N.S.DHANIK, RAMESH RANGANATHAN

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JUDGMENT : RAMESH RANGANATHAN, J. 1. The jurisdiction of this Court, under Article 226 of the Constitution of India, has been invoked by the petitioner seeking a writ of mandamus commanding the respondents to comply with the order of this Court in Writ Petition (S/B) No. 190 of 2012 dated 03.10.2012; and for a mandamus directing the respondents not to create artificial competitors for filling up the post of Chief Engineer, Level-I in the Irrigation Department of the Government of Uttarakhand. 2. Facts, to the limited extent necessary, are that the petitioner is a member of the Scheduled Castes. While the name of Sri S.C. Sharma figured at Serial No. 46, that of Sri Amirul Hassan at Serial No. 52, Sri Ramesh Chandra Saxena at Serial No. 61, Sri Durga Prasad Jugran at Serial No. 73, Sri Aditya Kumar Dinkar at Serial No. 75, Sri Ajay Verma at Serial No. 84 and Sri Dinesh Chandra Singh at Serial No. 85 in the seniority-list of Assistant Engineers, the petitioner’s name figured at Serial No. 91 therein. Since reservation was provided in promotion to higher posts, for members of the Scheduled Castes, the petitioner, though junior, was promoted before the aforesaid individuals to the post of Executive Engineer and, thereafter, as Superintending Engineer. 3. The petitioner was promoted as Chief Engineer, Level-II on 30.01.2008 and, on the very same day, both Sri S.C. Sharma and Sri Amirul Hassan were promoted as Superintending Engineers. 4. It is the petitioner’s case that, consequent on the retirement of the then Chief Engineer-Level-I, the said post fell vacant on 30.04.2010; a common Departmental Promotion Committee (DPC) was held for selection to the posts of Chief Engineer-Level-I and Chief Engineer-Level-II; his name was recommended by the DPC for appointment, to the post of Chief Engineer-Level-I, vide proceedings dated 11.02.2011; and both Sri S.C. Sharma and Sri Amirul Hassan were promoted as Chief Engineers, Level-II on the recommendation of the DPC held on 11.02.2011. 5. The petitioner claims to have taken charge of the post of Chief Engineer-Level-I on 14.03.2011, and that both Sri S.C. Sharma and Sri Amirul Hassan took charge, as Chief Engineers-Level-II, on 16.03.2011. 5. The petitioner claims to have taken charge of the post of Chief Engineer-Level-I on 14.03.2011, and that both Sri S.C. Sharma and Sri Amirul Hassan took charge, as Chief Engineers-Level-II, on 16.03.2011. Sri S.C. Sharma filed Writ Petition (S/B) No. 160 of 2011 which was allowed by order dated 14.12.2011 directing that a Review DPC be held treating all the three candidates i.e. the petitioner, Sri S.C. Sharma and Sri Amirul Hassan as Chief Engineers-Level-II, and as being eligible to be considered for promotion to the post of Chief Engineer-Level-I. However, even before the Review DPC could be held, Sri Amirul Hassan retired from service, on attaining the age of superannuation, on 31.01.2012. The Review DPC, in its meeting held on 07.06.2012, recommended the name of Sri Amirul Hassan for promotion to the post of Chief Engineer-Level-I with effect from 14.03.2011, i.e. the date on which the petitioner herein was earlier promoted to the said post. 6. The petitioner then filed Writ Petition (S/B) No. 190 of 2012, and a Division Bench of this Court, in its order dated 03.10.2012, observed that the Review DPC had only recommended grant of notional promotion to Sri Amirul Hassan; and the vacancy, therefore, stood revived. Instead of dismissing the Writ Petition, the Division Bench directed the State Government to hold a fresh DPC, and consider the case of all eligible persons, in the feeder post, for promotion. 7. Aggrieved thereby, the petitioner filed Special Leave to Appeal (Civil) No. 8241 of 2013 before the Supreme Court, and an interim order, of stay of the judgment of the Division Bench, was granted by the Supreme Court on 25.02.2013, which remained in force till 10th January, 2014 when the SLP was dismissed. The petitioner filed an application, seeking review of the said order, before the Supreme Court which was dismissed on 24.04.2014. 8. Thereafter, the petitioner filed Writ Petition (S/B) No. 262 of 2014 before this Court seeking a direction to declare the earlier judgment of the Division Bench, in Writ Petition (S/B) No. 190 of 2012 dated 03.10.2012, per incuriam or to refer the matter to a larger Bench to decide the questions of law which were kept open by the Supreme Court. No interim order was passed therein and, in the meanwhile, the petitioner retired from service on 31.07.2015. 9. No interim order was passed therein and, in the meanwhile, the petitioner retired from service on 31.07.2015. 9. It is represented by Sri Lalit Kumar, learned counsel for the petitioner, that the petitioner was officiating as a Chief Engineer- Level-I when he retired from service on 31.07.2015; the petitioner, thereafter, withdrew Writ Petition (S/B) No. 262 of 2014 on 21.06.2016; despite the order of the Division Bench in Writ Petition (S/B) No. 190 of 2012 dated 03.10.2012, the respondents did not constitute a DPC to consider the petitioner’s candidature for promotion to the post of Chief Engineer-Level-I; and, in their counter affidavit, the respondents have admitted that the petitioner was the only eligible candidate to be considered for promotion to the post of Chief Engineer-Level-I. 10. A supplementary affidavit has been filed by the respondents today, i.e. on 20.03.2019, wherein it is stated that, during the pendency of the SLP before the Supreme Court, Sri D.P. Jugran (Serial No. 73), Sri Aditya Kumkar Dinkar (Serial No. 75), Sri Ajay Verma (Serial No. 84) and Sri D.C. Singh (Serial No. 85) in the list of Assistant Engineers, were promoted to the posts of Chief Engineer-Level-II with effect from 31.05.2013; the petitioner, though placed at Serial No. 91 in the said seniority list of Assistant Engineers, was promoted by giving accelerated promotion due to reservation in terms of the promotion policy prevailing at that time; after being promoted to the posts of Chief Engineer-Level-II, these four persons regained their seniority in the feeding cadre and, thus, became seniors to the petitioner; on 10.01.2014, when the SLP filed by the petitioner was dismissed, the aforesaid four persons were working as Chief Engineers-Level-II; the DPC met on 29.07.2015, and considered the service records of the senior most four persons, (and not the petitioner) as, under the Rules, only senior Chief Engineers-Level-II were eligible to be considered for promotion to the solitary post of Chief Engineer-Level-I and the Head of the Department; the said four persons, who were senior to the petitioner in the feeder category, had regained their seniority on their being promoted as Chief Engineers-Level-II; they were considered by the DPC in its meeting held on 29.07.2015, and the name of Sri D.P. Jugran was recommended for promotion to the post of Chief Engineer-Level-I; consequently Sri D.P. Jugran was promoted, by order dated 31.07.2015, to the post of Chief Engineer-Level-I and the Head of the Department; he functioned as such from 01.08.2015 till 30.04.2016 when he retired from service; the DPC again met on 27.04.2016 (on the eve of the retirement of Sri D.P. Jugran), and recommended Sri Rajendra Chalisgaonkar for promotion to the post of Chief Engineer-Level-I, questioning which Sri Aditya Kumar Dinkar filed Writ Petition (S/B) No. 200 of 2016 and, by order dated 04.07.2017, this Court had directed implementation of the minutes of the meeting of the DPC, held on 29.07.2015, as regards the petitioner in Writ Petition (S/B) No. 200 of 2016. 11. 11. As noted hereinabove, the petitioner retired from service on 31.07.2015, and the post of Chief Engineer-Level-I remained vacant after the retirement of Sri Amirul Hassan on 31.01.2012 till the petitioner retired from service on attaining the age of superannuation on 31.07.2015. It is admitted by the respondents, in their counter affidavit filed in the present writ petition on 17th May, 2013, that the petitioner was the only person eligible to be considered for promotion to the post of Chief Engineer-Level-I, since he was the only person in the cadre of Chief Engineer-Level-II. The fact, however, remains that the said post could not be filled up, in compliance with the order of the Division Bench in Writ Petition (S/B) No. 190 of 2012 dated 03.10.2012, as the petitioner himself obtained an interim order from the Supreme Court as a result of which operation of the said judgment, of the Division Bench, remained stayed till the SLP was eventually dismissed on 10.01.2014. However, in the interregnum, Sri D.P. Jugran, Sri Aditya Kumar Dinkar, Sri Ajay Sharma and Sri D.C. Singh were promoted to the posts of Chief Engineer-Level-II with effect from 31.05.2013. 12. After the SLP preferred by the petitioner was dismissed by the Supreme Court on 10.01.2014, there were five individuals holding office of the Chief Engineer-Level-II. While the petitioner was, undoubtedly, senior to these four individuals in the cadre of Chief Engineer-Level-II, Rule 6 of the Uttaranchal Government Servants Seniority Rules, 2002, which relates to seniority in cases where appointment by promotion is only from a single feeding cadre, stipulates that where, according to the service rules, appointment is to be made only by promotion from a single feeding cadre, the seniority, inter se, of persons so appointed shall be the same as it was in the feeding cadre. Under the explanation to Rule 6, a person senior in the feeding cadre, even though promoted after the promotion of a person junior to him in the feeding cadre, shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre. 13. Under the explanation to Rule 6, a person senior in the feeding cadre, even though promoted after the promotion of a person junior to him in the feeding cadre, shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre. 13. As the four individuals, referred to hereinabove, were promoted as Chief Engineers-Level-II with effect from 31.05.2013, they became senior to the petitioner, in the cadre of Chief Engineer-Level-II, by virtue of Rule 6 of the Uttaranchal Government Servants Seniority Rules, 2002 and its explanation, even though they were far junior to him in the cadre of Chief Engineer-Level-II. However, as noted hereinabove, the post of Chief Engineer-Level-I remained unfilled from 31st January, 2012 (when Sri Amirul Hassan retired from service) till 31st July, 2015 when the petitioner retired from service. Even, in the DPC held on 29.07.2015, the petitioner’s candidature was not considered for reasons not known; and, instead, Sri D.P. Jugran was promoted as Chief Engineer-Level-I, and he held the said post from 01.08.2015 till he retired from service on 30.04.2016. No explanation is forthcoming from the respondents as to why the petitioner’s candidature was not even considered by the DPC, which was convened on 29.07.2015 to recommend candidates for promotion to the post of Chief Engineer-Level-I, though the order of the Division Bench, in Writ Petition (S/B) No. 190 of 2012 dated 03.10.2012, obligated the State Government to hold a fresh DPC and consider the case of all eligible persons, in the feeder post, for promotion to the post of Chief Engineer-Level-I. 14. It is not even the case of the respondents that the petitioner was ineligible for promotion. It is not even the case of the respondents that the petitioner was ineligible for promotion. Even if the other four individuals, who were promoted as Chief Engineers-Level-II on 31.05.2013, are presumed to be seniors to the petitioner in the cadre of Chief Engineer- Level-II, in view of Rule 6 of the Uttaranchal Government Servants Seniority Rules, 2002 and its explanation, the petitioner’s candidature should have been considered along with these four, since admittedly the Rules do not stipulate a zone of consideration for appointment to the single post of Chief Engineer-Level-I. The order of the Division Bench, in Writ Petition (S/B) No. 190 of 2012 dated 03.10.2012, obligated the State Government to hold a fresh DPC, and to consider the case of all eligible persons, in the feeder post, for promotion as Chief Engineer-Level-I. While this order was under a cloud till 10.01.2014, in view of the interim order passed by the Supreme Court on 25.02.2013 operating till then, the respondents ought to have convened a DPC soon thereafter, to consider the case of all eligible persons for promotion to the post of Chief Engineer-Level-I. 15. While the petitioner would not be entitled to be considered for promotion to the post of Chief Engineer-Level-I, for the period posterior to his retirement on 31.07.2015, he, if found the most meritorious, would undoubtedly be entitled for notional promotion with effect from 31.01.2012 (when Sri Amirul Hassan retired from service) till the petitioner himself retired from service on 31.07.2015. 16. The relevant Rules prescribe that promotion to the post of Chief Engineer-Level-I is to be made strictly in accordance with merit. The DPC, which met on 29.07.2015, ought to have considered the inter se merit of all eligible candidates for promotion to the post of Chief Engineer-Level-I, at least after the dismissal of the SLP on 10.01.2014. 17. 16. The relevant Rules prescribe that promotion to the post of Chief Engineer-Level-I is to be made strictly in accordance with merit. The DPC, which met on 29.07.2015, ought to have considered the inter se merit of all eligible candidates for promotion to the post of Chief Engineer-Level-I, at least after the dismissal of the SLP on 10.01.2014. 17. Sri Lalit Kumar, learned counsel for the petitioner, would contend that, even if 10.01.2014 is taken to be the date from which the DPC should consider candidates for promotion to the post of Chief Engineer-Level-I, it is the petitioner alone who would be eligible to be considered, since Rule 10(1) of the Uttaranchal Irrigation Department Engineering Services (Civil/Mechanical) Group “A” Service Rules, 2003 requires a person, appointed by promotion in different categories of posts, to be placed on probation for a period of one year; and, since the other four individuals were promoted to the post of Chief Engineer-Level-II only on 31.05.2013, their probation period of one year expired only on 31.05.2014. 18. We see no reason, however, to examine these aspects, more so in the absence of those four individuals, who were promoted on 31.05.2013, being arrayed as respondents in the writ petition. Suffice it to hold that, since the order of the Division Bench in Writ Petition (S/B) No. 190 of 2012 dated 03.10.2012 necessitated compliance and, in terms of the said order, the State Government was obligated to hold a fresh DPC and consider the case of all eligible persons, in the feeder post, for promotion, the respondents shall forthwith convene a Review DPC, and consider the case of all eligible candidates, in the cadre of Chief Engineer-Level-II as on 10.01.2014, for promotion and recommend the name of the most meritorious for promotion to the post of Chief Engineer-Level-I. Needless to state that, just as Sri Amirul Hassan was given notional promotion and was extended the benefit of the emoluments prescribed for the higher post of Chief Engineer-Level-I, after he retired from service, i.e. from the date of his notional promotion till the date of his retirement, in case the Review DPC finds the petitioner to be the most meritorious among the eligible candidates and recommends his case for promotion as Chief Engineer-Level-I, the petitioner shall also be extended the same benefit of notional promotion as was extended to Sri Amirul Hassan. 19. 19. The entire exercise of convening the DPC, for the DPC to recommend the most meritorious of the eligible candidates for promotion to the post of Chief Engineer-Level-I, and the Government issuing appropriate orders of promotion to the recommended candidate, shall be completed at the earliest and, in any event, not later than four months from the date of receipt of a certified copy of this order. 20. The writ petition stands disposed of accordingly. No costs.