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Uttarakhand High Court · body

2022 DIGILAW 263 (UTT)

Vinod Kumar Lohumi v. State of Uttarakhand

2022-08-22

SHARAD KUMAR SHARMA

body2022
JUDGEMENT : Sharad Kumar Sharma, J. Before this Court proceeds to sculpturize this judgment, this Court is of the view, that few backdrop of the legislative impact of the Act, the Rules and the Regulations framed thereunder are necessarily required to be considered, before considering the respective cases of the parties, to the proceedings of the present Writ Petition. 2. In the undivided State of U.P., the State had then formulated an Act called as U.P. Krishi Utpadan Mandi Adhiniyam, 1964, as it was notified to be enforced by the State; vide its notification, which was issued as back as on 4th August, 1964. 3. The said Act under Section 26-A, prescribes the modalities of exercise of control over the functioning of the respective Krishi Utpadan Mandi Samiti, and for the aforesaid purpose, the external controls are regulated as per the provisions contained under Chapter V of the Act, and basically, under Section 26-A of the Act, it contemplates providing of a constitution of a Board, by constituting the same by a gazette notification of the State, giving it as to be a status of body corporate and an apex body having perpetual succession, to deal with all the matters which are related to the provisions of the Act of 1964. What we would be more concerned herein is, that under Section 26-G of the said Act, the exclusive powers of superintendence over the functioning of the Board and the general control, is a power, which has been exclusively vested with the Director of the Mandi Samiti as per law, as it has been defined under Sub-section (h) of the Section 2 of the Act. 4. Under Section 26-X of the Adhiniyam of 1964, which would be the basic provisions, with which, we would be more concerned, its a power, which has been exclusively vested with Board thus constituted under Section 26-A, to be read as to be a Board defined under Section 2 (a-1). It provides for, that the Board may with the previous approval of the State Government, may make Regulations in relation to the exercise of its general administrative control over the affairs of the Board, and the functioning of its employees. It provides for, that the Board may with the previous approval of the State Government, may make Regulations in relation to the exercise of its general administrative control over the affairs of the Board, and the functioning of its employees. Accordingly, in the exercise of the powers which are to be read with in consonance with Section 26-A and Section 26-X, the Board has formulated the Service Rules, which would be governing the service conditions of the employees working with the Mandi Samiti, by notifying the same in the official gazette, in the exercise of its powers under Section 26-A to be read Section 26-X, called as U.P. Krishi Utpadan Mandi Adhiniyam, 1964. 5. The Rules, thus notified under Section 26-X, it provides for the various modalities which would be governing the service conditions of the employee of the Mandi, and particularly, the aspect, which we would be concerned with in the instant Writ Petition, would be the procedure for direct and promotional recruitment, as contemplated under Part-III of the Rules of 1964, the applicability of which, is not a fact, which is disputed by either of the parties to the proceedings of the present Writ Petition. 6. Particularly, for the purposes of adjudication of this case, a reference to Regulation 13 of the U.P. Agricultural Produce Market Committee (Centralized) Service Regulation of 1984, is specifically required a mention to be dealt with, which provides for the provisions of source of the recruitment, and the proportions from different sources is given thereof, which has been spilited over for the purposes of filing up, the available post of different categories of posts contained in the Schedule provided under Rule 13, as to what percentage, and upto what extent the same could be filled in by way of promotion or direct recruitment, as the case may be. Rule 13 is extracted hereunder :- 13. Quota. – (1) Subject to the provision of subrule (2) recruitment to various categories of posts in the cadres of the service shall be made from the source and in the proportion indicated below :- Name of post Source and method of recruitment Percentage Per cent 1. Secretary grade IV Direct recruitment 100 2. Quota. – (1) Subject to the provision of subrule (2) recruitment to various categories of posts in the cadres of the service shall be made from the source and in the proportion indicated below :- Name of post Source and method of recruitment Percentage Per cent 1. Secretary grade IV Direct recruitment 100 2. Secretary Grade-III By promotion of secretary grade IV, who has put in atleast 5 years continuous service as such (not being service on ad hoc basis) as on the first day of year of recruitment. 75 By Promotion of Mandi Paryavekshak who has put in atleast 5 years continuous service as such (not being service on ad hoc basis) as on the first day of year of recruitment. 25 3. Secretary Grade-II By Promotion of Secretary grade III, who has Put in at least 5 years continuous service as such (not being service on ad-hoc basis) as on the first day of year of recruitment. 100 4. Secretary Grade-I By direct recruitment 50 By promotion of Secretary grade II, who has put in at least 5 years continuous service as such (not being service on ad hoc basis) as on the first day of year of recruitment. 50 .. .. .. 7. According to the Rule 13, apparently the source of recruitment for the different posts of Secretaries who would be working with the Mandi Samiti, the post of Secretary, Grade-II, has been classified as to be a 100% post which is to be filled in by way of promotion only from amongst the feeding cadre of employees, i.e. Secretary Grade-III and the Mandi Supervisors, who had put in at least given five years of their continuous service on regular basis. 8. So far as the other two categories of Secretaries are concerned, as covered under the Rules of 1984, the post of Secretary, Grade-I has been spilited over, into two sources of recruitment, i.e. 50% by direct recruitment and 50% by way of promotion. 9. 8. So far as the other two categories of Secretaries are concerned, as covered under the Rules of 1984, the post of Secretary, Grade-I has been spilited over, into two sources of recruitment, i.e. 50% by direct recruitment and 50% by way of promotion. 9. For the purposes of promotion to the post of Secretary Grade-I, the feeding cadre is that of Secretary, Grade-II, from amongst these eligible candidates, who were having five years of continuous service having worked as such on the feeding cadre and balance 50% was left open to be filled in by way of a direct recruitment as against the vacancies, which was available on the first date of the year of recruitment, as defined under the Rules of 1984. 10. The year of recruitment in the instant case, becomes relevant to be considered; because that would be one of the aspects, which the petitioner has harped upon due to the depriviation, which was faced by him in the absence of being considered for promotion on the post of Secretary, Grade-II. According to the definition of year of recruitment as it has been provided under Sub-section (p) and Section 3 of the Regulation of 1984, 12 months would commence from 1st day of July of the calendar year. 11. The State of Uttarakhand came into existence by virtue of the gazette notification of Government of India w.e.f. 9th November, 2000, with the enforcement of U.P. Reorganization Act of 2000, and as a consequence thereto, the provisions of U.P. Krishi Mandi Samiti Adhiniyam, 1964, continued to be applied, in the bifurcated and newly created territory of the State of Uttarakhand, by virtue of the implications contained under Section 87 of the Reorganization Act of 2000. 12. The State of Uttarakhand, with the passage of time had formulated and notified its own Act called as Uttarakhand Agriculture Produce Marketing (Development and Regulation) Act, 2011, called as Uttarakhand Act No. 9 of 2011. 13. 12. The State of Uttarakhand, with the passage of time had formulated and notified its own Act called as Uttarakhand Agriculture Produce Marketing (Development and Regulation) Act, 2011, called as Uttarakhand Act No. 9 of 2011. 13. As per the provisions contained under the said Act, the Rule making power was vested with the State Government for the purposes of carrying out and enforcing the provisions of the Act under Section 93 of the Act of 2011, and so far as the repealing and savings clause is concerned, as contained under Section 95, the effect of repeal of the Act of 1964, would not be having any bearing, so far as it related to the subordinate legislations which were framed under the Act of 1964, is concerned, because that was saved to be constituted to be applied until and unless, they were substituted by the State, while exercising its rule making powers over the subject given under Section 93 of the Act of 2011, which has to be read with Section 95. 14. The contentions of the learned counsel for the petitioner is that the management of the various Mandi Samities constituted under the Act, are being regulated by the marketing committee, which is normally nomenclaured as “Agricultural Produce Marketing Committee”, (hereinafter to be called as APMC). 15. The petitioner’s case, is that he was inducted as a Mandi Supervisor, which was then the initial introducting cadre of Rule 13 of the Rules of 1984, by virtue of which, the petitioner was appointed as a Mandi Supervisor, on the basis of regular selection process and was accorded with the regular appointment by an order of 23rd September, 1987, as it was got issued by the competent authority under Regulation 9 of the Regulation of 1984, i.e. Deputy Director (Administration). As a consequence thereto, the petitioner joined the APMC, Rudrapur on 7th October, 1987, and had been satisfactorily working so in the said capacity. 16. With the enforcement of the Reorganization Act, the petitioner had opted out for his allocation of his services to the Mandi Samiti in the State of Uttarakhand, and as a consequence thereto, he was allocated APMC, Rudrapur and, accordingly, he functioned in the said APMC w.e.f. 14th May, 2001. 17. 16. With the enforcement of the Reorganization Act, the petitioner had opted out for his allocation of his services to the Mandi Samiti in the State of Uttarakhand, and as a consequence thereto, he was allocated APMC, Rudrapur and, accordingly, he functioned in the said APMC w.e.f. 14th May, 2001. 17. The grievance of the petitioner is that the process of recruitment, on the posts of various level of Secretaries, as it has been provided under Rule 13 of the Rules of 1984, it was required to be resorted to by the respondents in consonance to the provisions contained under the Government Order dated 23rd June, 2003, which was issued by the State, Secretary (Personnel), which provided that for the purposes of resorting to the process of recruitment, one time DPC has to be held for each recruitment year and all anticipatory vacancies likely to be created in the forthcoming recruitment has to be jointly taken into consideration for the purposes of conducting the DPC, for filling up the promotional quota vacancies available and as classified under the Rules 13 of the Rules of 1984. 18. The petitioner contends, that as a consequence of his joining into the service on 7th October, 1987, the petitioner would fall well within the zone of consideration to be considered for promotion, as Secretary Grade-III, on having satisfactorily functioned for a period of five years, and according to him, he would become eligible to be considered for promotion, for Grade-III Secretary in the year 1992, as per his initial year of recruitment, in the feeding cadre. 19. The petitioner submits, that owing to the fact, that in the year of recruitment, when the petitioner has attained his eligibility to be promoted as Secretary Grade-III, his candidature was not considered, because of the fact of non availability of the vacancy for promotion of Grade-III, Secretary, as no post was available to be filled in. 20. The petitioner submits that the said situation prevailed till his merger of services, as a consequence of his option exercised by him for his working in the State of Uttarakhand. When for the aforesaid recruitment year of 2001-02, nine vacancies of Secretary, Grade-III, is said to have fallen vacant to be filled in by way of promotion, which according to Rule 13 was a 100% promotional post. 21. When for the aforesaid recruitment year of 2001-02, nine vacancies of Secretary, Grade-III, is said to have fallen vacant to be filled in by way of promotion, which according to Rule 13 was a 100% promotional post. 21. But, however, as against the total available nine vacancies for promotion, one of the vacancies, which was then made available in the recruitment year 2001-02, was the vacancy, which had fallen vacant due to the superannuation of one Mr. P.N. Sexena, but for the reasons best know to the respondents, it is contended by the petitioner, that the respondent No.2 had proceeded to promote only seven persons, as against the total available promotional vacancies of Secretary, Grade-III, and two posts were kept vacant to be filled, one of which, was available for general category candidate, with which, the petitioner is concerned and so far as the second vacancy, which was left to be unfilled, since it was fallen for the reserved category, he submits that he has not raised his claim for being promoted, as against the said post, which was otherwise to be filled in from the reserved category candidate by way of promotion as Secretary Grade-III. 22. Initially, the deprivation of the petitioner to be considered for promotion was meted to him in the year 1992, which was suspended on account of non availability of vacancy, but later on in the year 2001-02 also, when the promotional vacancy actually occurred and it was available to be considered for promotion, because at that relevant point of time, the petitioner has already fulfilled his eligibility in the year 1992, the respondents for the reason best known have not considered the petitioner’s candidature, to be considered to be promoted as against available one post of general category for being promoted as Secretary, Grade-III. However, lastly, in the year 2005, the petitioner submits, that the respondents have considered his claim for promotion and he was accorded promotion as Secretary, Grade-II, w.e.f. 14th February, 2005. 23. The petitioner’s contention is, that his promotion, which was made in 2005, in fact, was against the vacancy, which had occurred on account of retirement of one Mr. However, lastly, in the year 2005, the petitioner submits, that the respondents have considered his claim for promotion and he was accorded promotion as Secretary, Grade-II, w.e.f. 14th February, 2005. 23. The petitioner’s contention is, that his promotion, which was made in 2005, in fact, was against the vacancy, which had occurred on account of retirement of one Mr. P.N. Saxena, which was the vacancy which was then too available in the recruitment year 2001-02 and hence, the belated promotion of the petitioner, as granted to him on 14th February, 2005, ought to be reckoned from the date of year of recruitment, when the vacancy has occurred and petitioner was found to be eligible for promotion as Secretary, Grade-III. 24. In order to substantiate his contention, though not relevant, but he had submitted that the functioning of the Mandi Samiti, as it was constituted by an Act of 1964 and, later on by Uttarakhand Act of 2011, would amount to be a State function falling within the ambit of exercise of power under Schedule 7 of List II, of the Constitution of India, where the State has to exercise its powers for constitution of the Mandi Samiti for the purposes of regulating the affairs of the agricultural produces, within the State, and that is why, the State level Officer has been put under the control of the helm of affairs of the Mandi Samiti, who is an IAS officer, who is appointed by the State and functions as a Managing Director and the General Managers of the each of the Mandi Samiti is a State level Civil Services Officers and the Finance Department of each Mandi Samiti is regulated by the State officials belong to the Finance Services of the State. 25. The petitioner submits that though he was considered for promotion on 14th February, 2005, to be promoted as Secretary, Grade-III, but as against the vacancy of 2001-02, but since the process of recruitment, itself, and it was resorted to by way of promotion itself was resorted to after, the Government Order of 23rd June, 2003, the petitioner claims that he ought to have been reckoned with the promotion on Grade-III, from the year of recruitment and not w.e.f. for 14th May, 2005, which though be a claim may not be a subject of much concern in the present Writ Petition. 26. 26. The petitioner submits that the respondents have erred at law, in a belated consideration of claim of the petitioner for promotion as Secretary, Grade-III, being in violation of Rule 14 of Rules 1984, because piecemeal exercise of promotion was not permissible under law particularly because when the respondents have proceeded to grant six promotions, as against the nine vacancies, which were available in 2001-02, there was no legal impediment or any genuine reasons as such nor there being any justification too at the hands of the respondent, as to why they have kept the two vacancies left vacant to be filled in, which were otherwise available to be filled in by way of promotion. 27. The petitioner’s contention is, that if the petitioner was considered for promotion as Secretary, Grade-III, along with such other suitable eligible candidates, who were granted promotion on 3rd June, 2002, he would have under Rule 13, would have made himself to be eligible to be considered for promotion of Secretary, Grade-III post, which is 100% promotional post. 28. Hence, he submits that his eligibility to be considered for promotion, should have been on the basis of his entitlement to be considered for promotion from 3rd June, 2002 and not w.e.f. from 14th February, 2005, when he was actually granted promotion to the post of Secretary, Grade-III, and the logic, which the petitioner assigns is, that when he has been considered for promotion against the same post, which was otherwise available for promotion even in the year 2002, he should have been suitably adorned with the promotion of Secretary Grade-III, as per the provisions of the selection process provided under the recruitment year, as defined under the Act. 29. According to the Rules as already observed, that the post of Secretary, Grade-II is a 100% promotional post, and there is no debate on the said provision of the law, that Secretary, Grade-II is a 100% promotional post, which had been contemplated under the Statute, as provided under the Regulation framed under Section 26-X of the Act. 30. 29. According to the Rules as already observed, that the post of Secretary, Grade-II is a 100% promotional post, and there is no debate on the said provision of the law, that Secretary, Grade-II is a 100% promotional post, which had been contemplated under the Statute, as provided under the Regulation framed under Section 26-X of the Act. 30. The respondents had issued an Advertisement No. 1 of 2003, advertising the vacancies, which were otherwise alleged to be available to be filled in by direct recruitment, as per Rule 13 of 1984 Rules, and as per the Rules 13, two vacancies were left open to be filled for the post of Secretary, Grade-I, which is otherwise 50% posts of the cadre is available to be filled in by way of direct recruitment and nine vacancies were advertised to be filled in by way of direct recruitment to the Secretary, Grade-III, in accordance with the quota of direct recruitment fixed under Rules 13 of the Rules of 1984. 31. But on the ultimate culmination of the selection process, the respondent No. 3, who admittedly, while responding to the Advertisement No. 1 of 2003, has extended his candidature to be considered for being appointed against the post available for direct recruitment, i.e. Secretary, Grade-II and Grade-III. In his application form thus submitted, and rightly so, he could not have been an applicant to be considered for promotion as against the Secretary, Grade-II, because as per Rule 13 of the Rules of 1984, the said post was not a post, which was available or which could have been at all directed to be filled up by direct recruitment. 32. Be it so. The respondent No.3, who had participated in the process of selection was recruited as Secretary, Grade-I and he had also qualified to be considered for recruitment by way of direct recruitment to Secretary, Grade-II, according to the percentage of quota, which has been fixed under the Rules of 1984. 33. 32. Be it so. The respondent No.3, who had participated in the process of selection was recruited as Secretary, Grade-I and he had also qualified to be considered for recruitment by way of direct recruitment to Secretary, Grade-II, according to the percentage of quota, which has been fixed under the Rules of 1984. 33. But, the respondents, for the reason best known, when they issued a called letter on 07.07.2006 and 24th August, 2006, when they have called upon the respondents to participate in the process of selection, i.e. the interview which was supposed to be held, after the respondent No.3 being declared as to be selected, the call letter was issued calling upon the respondent to participate in the interview process for Secretary, Grade-II and Grade-III. 34. Ultimately, on the culmination of the process of selection, the result was declared on 23rd October, 2006, and for the reasons best known to the respondents, the two posts of Secretary, Grade-I, which was advertised vide it Advertisement No.1 of 2003, the result of the said post was directed to be withheld to be declared. Consequently, the respondent No.3, had approached the Writ Courts, by filing the Writ Petition No. 336 of 2006, which was considered by this Court and the Division Bench of this Court, while considering the Writ Petition, at its admission stage had passed an order that since the advertisement itself was of 2003, and it related to resorting to the process of direct recruitment for Secretary, Grade-I and Grade-III, the respondent may be considered for issuance of the appointment letter for Grade-III, without prejudice to the right of the respondents, to claim his right to be appointed as Secretary, Grade-I. The relevant part of the interim order, which was passed by the Division Bench of this Court on 23rd November, 2006, is extracted hereunder :- “Respondents may file counter affidavits within a period of two weeks. It is pointed out by Sri. J.C. Belwal learned counsel for respondent No.2 that the petitioner has stated for the post of Secretary Grade-III, but the appointment order of Grade-III has not been issued so far. It is further stated that the respondents have no objection to issue the same. It is pointed out by Sri. J.C. Belwal learned counsel for respondent No.2 that the petitioner has stated for the post of Secretary Grade-III, but the appointment order of Grade-III has not been issued so far. It is further stated that the respondents have no objection to issue the same. It is pointed out by learned counsel for the petitioner that the petitioner has also qualified for the post of category-I. Respondents are directed to issue the appointment letter to the petitioner for Grade-III without prejudice the right of the petitioner claiming in the Cadre-I” 35. In the light of the interim order of 23rd November, 2006, the respondent No. 3, was appointed as Grade-III Secretary by an order of 7th December, 2006, he joined the post of Secretary, Grade-III on 26th December, 2006, and had started functioning accordingly. 36. Rather, in fact, in response to the interim order of 23rd November, 2006, when the respondent No.3 has extended his candidature for being appointed, and the same was voluntarily accepted and he was permitted to join on the date as already given above and hence, there was no occasion for the respondent No.3, that after accepting his appointment as Secretary, Grade-III to convert his appointment to Secretary, Grade-II and that too in absolute contravention to the provisions of Rule 13 of the Rules of 1984, where the post of Secretary Grade-II has been kept as to be a 100% promotional post. 37. The petitioner contends that the subsequent order passed by the respondents on 29th December, 2006, happens to be in apparent contravention to the provisions contained under Rule 13 of the Rules of 1984, and the logic behind it is that :- i. When the advertisement itself was related to the direct recruitment process only for the post of Secretary, Grade-I and post of Secretary, Grade-III, there could not have been any switching over of the appointment on the post to fill in the post, which is otherwise 100% available for promotion, as per Rule 13 of the Rules of 1984. ii. ii. That the appointment of respondent No.3, by making changes in his order of appointment, as accepted by him unconditionally under the light of the interim order passed by the Division Bench of this Court, and since having joined the post as Secretary, Grade-III dated 23rd December, 2006, there could not have any reason for the respondents, to change over the nature of appointment of respondent No.3, only after a couple of days by giving him joining as Secretary, Grade-III post by an order of 29th December, 2006, and too being contrary to the Rules of 1984. iii. The petitioner submits that since the post of Secretary, Grade-II, which is the next promotional avenue available to the petitioner, which is 100% promotional post, his right to be considered for promotion would be prejudiced, if the same is permitted to be filled in by way of direct recruitment, in an apparent contravention to the provisions of Rule 13 of the Rules of 1984, against 100% promotional posts. iv. He submits that because of the order of 29th December, 2006, the petitioner’s avenue for promotion has been prejudiced, as the available vacancy to be considered for promotion as Secretary Grade-II, since has been filled in and siphoned to be occupied by direct recruitment, the availability of vacancy for promotion, have been reduced prejudicing the rights of the petitioner. 38. The petitioner submits that the respondent No.3 since himself was an applicant to be considered for direct recruitment as Secretary, Grade-I and Secretary, Grade-III, he could not have been appointed as Secretary, Grade-II and that too in violation of the Rules of 1984. 39. 38. The petitioner submits that the respondent No.3 since himself was an applicant to be considered for direct recruitment as Secretary, Grade-I and Secretary, Grade-III, he could not have been appointed as Secretary, Grade-II and that too in violation of the Rules of 1984. 39. Accordingly, and more particularly once as a consequence of the respondent No.3, being appointed as Secretary, Grade-III, in pursuance to the interim order of 23rd November, 2006, the Writ Petition, which was preferred by the petitioner involving a question, about questioning the act of the respondents of not filling the post of Secretary, Grade-I, which was advertised by the Advertisement No. 1 of 2003, in fact, it was never pressed by respondent No.3 on merits and the respondent No.3 since being satisfied, after having been appointed as Secretary, Grade-III, under the interim order of 23rd November, 2006, the respondent No.3, got his Writ Petition dismissed as withdrawn on 22nd February, 2007, without pressing his principle relief, that he should be recruited as against the post of Secretary, Grade-I, the post for which, he had applied in pursuance to the advertisement of 1st November, 2003, against which, he was declared to be selected on 23rd October, 2006. 40. In that eventuality, the impact of the judgement of 22nd February, 2007, where the Writ Petition was got dismissed as withdrawn, it would amount to that respondent No. 3, had never made any efforts to get an answer on a judicial side, by the Court in his Writ Petition No. 336 of 2006, for being considered to be appointed as Secretary, Grade-I, because he as a consequence of the withdrawal of the Writ Petition on 22nd February, 2007, it would be presumed, and inferred that the respondent No.3, was satisfied with his appointment as Secretary, Grade-III, as a consequence of his joining on 22nd December, 2006, and more particularly as a consequence of withdrawal of the Writ Petition on 22nd February, 2007. 41. In view of the aforesaid factual backdrop, the petitioner preferred the Writ Petition, praying for the following reliefs:- “i) declare appointment of respondent no. 3 by direct recruitment against the post of Secretary Grade-II which is required to be filled 100% by promotion, as arbitrary and illegal. (ii) issue a writ, order or direction in the nature of certiorari calling for the record and for quashing the appointment given to respondent no. 3 by direct recruitment against the post of Secretary Grade-II which is required to be filled 100% by promotion, as arbitrary and illegal. (ii) issue a writ, order or direction in the nature of certiorari calling for the record and for quashing the appointment given to respondent no. 3 on the post of Secretary Grade-II in disregard of the Service Rules.. (iii) issue a writ, order or direction in the nature of mandamus commanding respondent no. 2 to appoint respondent no. 3 against an appropriate post of Secretary Grade-1 Secretary Grade-III which can be filled by direct recruitment. (iv) issue a writ, order or direction in the nature of mandamus commanding respondent no. 2 to promote the petitioner notionally as Secretary Grade-III w.e.f. 3.6.2002 or at any rate from 30.6.2002 and further to notionally promote the petitioner to the post of Secretary Grade-II w.e.f. 1.7.2007, with all consequential benefit. (v) To issue a writ, order or direction in the nature of mandamus commanding respondent no. 2 to consider and promote the petitioner for the post of Secretary Grade-1 w.e.f. 01.07.2012 with all consequential benefit. (vi) issue any other writ order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case. (vii) award the cost of the writ petition in favour of the petitioner.” 42. In a nutshell, what the petitioner has contended in the Writ Petition is that the respondent No.2 on his own wisdom, could not have converted the post of Secretary, Grade-II, which was under law a 100% promotional post, to be filled in from the direct recruitment process, which was otherwise offered for filling the post by direct recruitment to the post of Secretary, Grade-I or Secretary, Grade-III, as such, any such overact of the respondents would be in absolute derogation to the provisions of the statute, and particularly, the Rules of 1984, which has been saved to be applied under the Uttarakhand Act of 2011. 43. 43. He submits that the avenues of promotion as Secretary, Grade-II, since is having a very limited in its scope, depending upon the creation of vacancies due to superannuation of already functioning of Secretary, Grade-II, it is a very rare opportunity, which has been available to an employee to be considered for promotion as Secretary, Grade-II, and that too only subject to the availability of the vacancies, and if the said post of Secretary Grade-II, which is otherwise 100% promotional post, is permitted to be filled in under the garb of a direct recruitment on the post of Secretary, Grade-I and Grade-III, which was otherwise permissible under the Rules of 1984, the same could not have been permitted to fill the promotional post of Secretary, Grade-II, to be filled by the respondents No. 3 as Secretary, Grade-II, which would be in violation of the Rules of 1984. 44. Hence, he has sought for a writ of mandamus, that since the petitioner, who was promoted as Secretary, Grade-III on 14th February, 2005, he would be otherwise maturing his rights to be considered for promotion as Secretary, Grade-II after completing five years of satisfactory service under the Rules 1984. But this promotion of the petitioner of 14th February, 2005, if it is to be reckoned to be from the year of recruitment, i.e. the year when the vacancy was created in 2001-02, he would be becoming eligible to be considered for promotion as Grade-II on completing five years of service on 1st July, 2007, had he been promoted, along with the others by an order of 30th June, 2002. 45. 45. On the contrary, the private respondents have contended that he was not at all instrumental, in procuring any order or in any decision making process of the respondents in appointing the petitioner as against the post of Secretary, Grade-II, by an order of 29th December, 2006, because under any of the circumstances, as a consequence of he having succeeded to be appointed as Secretary, Grade-I, which is a superior cadre, to the Secretary, Grade-II, under Rule 13, he could have been considered for the said Grade-I, based on his merits for being appointed as Secretary, Grade-I, but since, he has joined as Secretary, Grade-III, in pursuance to the interim order of this Court, he could not be blamed for any decision taken by the respondents which was made by an order of 29th December, 2006, because otherwise also, the right of respondent No.3, was still reserved to be considered for being appointed against the two vacancies, which were advertised in Advertisement No. 1 of 2003, to fill in the post of Secretary, Grade-I, by way of direct recruitment. 46. After having heard the learned counsel for the parties at length, and particularly, after having perused the written submission, which has been extended by the counsel for the respondent No. 3, which he has argued in the context that no malice or fault could be pointed out, as against respondent No.3, for the reason being that he was not at all instrumental in the decision making process, taken by the Board for offering him an appointment on Secretary, Grade-II. 47. Be that as it may. The decision of the Board itself cannot be permitted to be inconsistent to the provisions contained under the Act and the Rules framed thereunder. The inconsistency in the instant case is apparent on the face of the record itself, when the respondents have proceeded to pass the order of 29th December, 2006, appointing the respondent No. 3 as Secretary, Grade-II, which was not a post which was available under the Rules, to be filled in by way of direct recruitment, since being an exclusive promotional post. 48. 48. In that eventuality, at the most, the respondent No.3 should have either press his earlier Writ Petition No. 336 of 2006, on its own merit to be considered for being granted an appointment as Secretary, Grade-I, the post against which he has applied, but having not done so and after having voluntarily joined the post of Secretary, Grade- III on 22nd December, 2006, as a consequence of the effect of the interim order dated 23rd November, 2006, it would be deemed that the petitioner has on his own volition accepted his nature of appointment as Secretary, Grade-III, the post which was otherwise available to be filled in by way of direct recruitment under the Rules of 2013, and also as per the Advertisement to which he responded in 2003. 49. In that eventuality, the voluntary acceptance of appointment as Secretary, Grade-III on 22nd December, 2006, will amount to that the respondent No.3, have renounced his rights to get an adjudication on merits of the Writ Petition, to be considered to be recruited on Secretary, Grade-I post, for which he has otherwise applied for under the advertisement No. 1 of 2003, and particularly, because of the impact of the judgement dated 22nd February, 2007, when he himself got the Writ Petition dismissed as withdrawn, it would be inferred that the respondents was satisfied with his appointment as Secretary, Grade-III. 50. 50. The contention of the learned Senior Counsel for the respondents, that the act of the respondents of issuing the order of 29th December, 2006, offering the appointment to respondent No. 3, as Secretary, Grade-II, he was not at all instrumental or responsible for it, as it was exclusively the wisdom and the decision which was taken by the respondents appointing him as Secretary, Grade-II, this Court is of the view, that may be, that respondent No.3 was not at all instrumental in any decision making process culminating to passing of an order of 29th December, 2006, but still, this Court is of the confirmed opinion, that an illegality cannot be perpetuated and persisted to be continued even if a wrongful decision has been taken by the respondents on 29th December, 2006, particularly when, its indirect consequences would be that it would be, marring the opportunity of the petitioner, to be considered for promotion as Secretary, Grade-II, for which, he was otherwise according to him, would have been qualified to be considered in 2007, had he been timely promoted as Secretary, Grade-III in 2002, or at the most, if he was considered for promotion as Secretary, Grade-II, after his promotion made as Secretary, Grade-III on 4th February, 2005, he would have been otherwise maturing his right to be considered for promotion as Secretary, Grade-II as per the eligibility clause. But owing to the act of the respondents of filling the post, which was otherwise exclusively made available for promotional exercise under Rule 13 of the Rules of 1984, which is in apparent contravention to the Rules of 1984, as framed under Section 26-X of the Act of 1964, which has been saved to be applied by the Uttarakhand Act of 2011. 51. 51. The very action of the respondents of appointing the respondent No.3, as Secretary, Grade-II, which is exclusively a promotional post, was bad in the eyes of law, may by, it may be a truth, which could be for the time being momentarily accepted, that respondent No.3 was not at all instrumental in getting an order of 29th December, 2006, but in that eventuality, this Court cannot rule out the admitted fact, that when the respondent No.3 has accepted his appointment as Secretary, Grade-III, he will fall, within a zone of consideration for promotion of Secretary, Grade-II only subject to the fulfilment of the promotional probation provided under Rule 13 of the Rules of 1984, and not otherwise before that. By changing over the nature of appointment of respondent No.3, from Secretary, Grade-III to Secretary, Grade-II and that too, at the cost of the petitioner’s right for being considered for promotion as Secretary, Grade-II, which, he otherwise according to him would have qualified to be considered for promotion in the recruitment year 2007-08. 52. Since this Court is of view, that the order of appointment of respondent No.3, as Secretary, Grade-II is in apparent contravention to the Rules of 1984, because he was admittedly an applicant for a direct recruitment only, his candidature couldn’t have been considered to be appointed by way of promotion, hence, the very genesis of the action taken by the respondents, would be bad and in apparent contravention to law, because of passing of the order of adjusting the respondent No.3, as against the post of Secretary, Grade-II, for which, he had never applied nor was he the member of feeding cadre of promotional post of Secretary, Grade-II as per rules. The petitioner cannot be deprived to be considered as against the vacancy, which has been made available for the post of Secretary, Grade-II, the post for which, he should qualify in accordance with his year of recruitment to be read in consonance to the provisions of Government Order dated 23rd June, 2003, wherein, the modalities of resorting to the promotional exercise was expected to be resorted to by the respondents considering the overall vacancies, which occurred in a recruitment year. 53. In that eventuality, the Writ Petition is allowed. 53. In that eventuality, the Writ Petition is allowed. The appointment of respondent No.3, as against the post of Secretary, Grade-II by an order of 29th December, 2006, will not be creating any impediment as such for the purposes of considering the claim of promotion of the petitioner for Secretary, Grade-II on the pretext, that the post, which was otherwise available to be filled by way of promotion, has now been recruited by respondent No.3 by way of direct recruitment as Secretary, Grade-II. 54. Apart from it, a writ of mandamus is also issued to the respondents because on perusal of the counter affidavit which had been filed by the respondents, I do not see any logic, when the respondents had resorted to the process of promotion as against the vacancy, which was made available in 2001-02, as to why, one post was kept vacant to be filled in from amongst the general category candidate, i.e. the post, which was created on account of superannuation of one Mr. P.N. Saxena, which was then itself available, particularly when, the others similarly placed candidates, to that of the petitioner, were considered for promotion on 3rd June, 2002. Hence, the petitioner would be rightfully asserting that he ought to have been promoted on 3rd June, 2002, along with such other similarly placed employees, working as Secretary, Grade-II, in that eventuality, he too would have qualified and made himself to be eligible to be considered for promotion as Secretary, Grade-II, w.e.f. 1st July, 2007. 55. In that eventuality, the respondents are directed to reconsider the claim of the petitioner for being considered for appointment by way of promotion as Secretary, Grade-III, w.e.f. 3rd June, 2002, as it has been granted to the other similarly placed employees against the post, which has fallen vacant due to superannuation of Mr. P.N. Saxena, against which, the petitioner was later on considered for promotion only on 14th February, 2005 at a much belated stage, and that too without there being any logical reason. 56. P.N. Saxena, against which, the petitioner was later on considered for promotion only on 14th February, 2005 at a much belated stage, and that too without there being any logical reason. 56. It is hoped and trusted, that since the petitioner has not questioned the propriety of the order of appointment of respondent No.3 w.e.f. 29th December, 2006, the said order is not being disturbed, but still, it is hereby being clarified that merely because of the fact that respondent No.3 has been appointed as Secretary, Grade-II by an order of 29th December, 2006, that itself will not create any impediment in the claim of the petitioner to be considered to be appointed by way of promotion as Secretary, Grade-II w.e.f. his year of eligibility, i.e. 1st July, 2007. 57. Subject to the aforesaid, the Writ Petition is allowed.