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2019 DIGILAW 229 (UTT)

Amit Kumar Verma v. State of Uttarakhand

2019-03-20

N.S.DHANIK, RAMESH RANGANATHAN

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JUDGMENT : RAMESH RANGANATHAN, J. 1. Shri Narendra Bali, learned counsel for the applicant-intervener in CLMA No. 2386 of 2019, would submit that the intervention application may be dismissed as not pressed. It is, accordingly, dismissed. 2. Heard Ms. Menka Tripathi, learned counsel for the petitioner and Shri Pradeep Joshi, learned Standing Counsel for the State; and, with their consent, the writ petition is disposed of at the stage of admission. 3. The relief sought for in the writ petition is for a mandamus commanding the respondents to consider and promote the petitioner to the post of Assistant Engineer (Civil) with effect from the date on which his junior Shri Neeraj Kumar Tripathi was promoted i.e. w.e.f 25.06.2018; and for a mandamus commanding the respondents to grant all consequential benefits in the post of Assistant Engineer (Civil) after considering and promoting the petitioner to the post of Assistant Engineer (Civil) with effect from the date his junior Shri Neeraj Kumar Tripathi was promoted. 4. It is the petitioner’s case that Shri Neeraj Kumar Tripathi was appointed by order dated 9.04.2012 eight years after the petitioner was appointed as a Junior Engineer; while he was serving as an Additional Assistant Engineer in P.W.D. from 2012, he suffered a major accident which resulted in a permanent disablement of one of his legs; and a medical certificate dated 08.04.2015 was issued certifying that the petitioner suffered a permanent disability of 40 to 45%. A Departmental Promotion Committee was constituted to fill up the vacancies in the post of Assistant Engineer (Civil), in which category four percent of the posts were earmarked for persons with disability under the Rights of Person with Disability Act 2016. Government Order dated 14.06.2018 was issued by the State Government for effecting promotion against 4 % reservation, of which one percent was to be reserved under each of the categories. 5. It is the petitioner’s complaint that, pursuant to the office order dated 26.06.2013 wherein his name was shown as serial no. 1 and Shri Neeraj Kumar Tripathi was at serial no. 2, and though he was senior to Shri Neeraj Kumar Tripathi, it was the latter and not the petitioner who was appointed as an Assistant Engineer in the physically disabled category. 6. 1 and Shri Neeraj Kumar Tripathi was at serial no. 2, and though he was senior to Shri Neeraj Kumar Tripathi, it was the latter and not the petitioner who was appointed as an Assistant Engineer in the physically disabled category. 6. Accepting the petitioner’s contention would mean that it is he, and not Shri Neeraj Kumar Tripathi, who ought to have been promoted as an Assistant Engineer under the physically disabled category, since both suffered from locomotor disability, and the petitioner was senior to him. Any relief, which would adversely affect the rights of any person, can only be granted after such a person is put on notice and is given an opportunity of being heard. Since Shri Neeraj Kumar Tripathi has not been arrayed as a respondent in the writ petition, it would be wholly inappropriate for this Court to undertake the task of examining whether or not the petitioner is senior to Shri Neeraj Kumar Tripathi, and whether the official respondents were justified in promoting Mr. Tripathi before the petitioner herein. 7. Ms. Menka Tripathi, learned counsel for the petitioner, would further submit that the petitioner does not wish to question the promotion of Shri Neeraj Kumar Tripathi, and it would suffice if the respondents are directed to consider the petitioner’s case in the ensuing promotions for which ACRs have already been called for. While a decision regarding filling up the vacancies, and when such vacancies should be filled up, are all matters in the executive realm, and this Court would not, ordinarily, undertake the task of determining these issues, suffice it to direct the respondents, as and when they choose to fill up the posts of Assistant Engineers, to verify the genuineness of the medical certificate produced by the petitioner, and if he fulfills the requirement of being physical disabled, to then consider his case for promotion under the quota earmarked in favour of the physically disabled, under the Rights of Person Disability Act 2016, in accordance with his seniority. The writ petition stands disposed of accordingly. No costs.