Rajendra Kumar Jain vs State of Uttaranchal and Others

By means of this writ petition, the Petitioner has prayed for the following reliefs:

a) Issue writ rule or direction in the nature of certiorari quashing the impugned order dated 04-06-2005 as contained to Annexure No. 1 to this petition and its effect and operation also.

b) Issue any other writ, order or direction in the nature of mandamus commanding to the Respondent No. 1 to review the D.P.C. and to consider the case of the Petitioner on the vacant post of Chief Engineer Level-II and to grant him all consequential benefits w.e.f. 31-01-2005.

We have heard Sri M.C. Pant, learned Counsel for the Petitioner and Sri K.P. Upadhyay, learned Standing Counsel for the State and perused the record.

From the perusal of the record it reveals that for four vacancies of the post of Chief Engineer, Level-II, the D.P.C. was held on 31-10-2005 in which the Petitioner was considered and the Petitioner was not recommended for promotion. Sri S.M. Saxena, Sri H.C. Pathak, Sri B.B.L Mittal and Sri Shiv Datt were recommended for promotion and were given promotion on the post of Chief Engineer, Level-II. On account of further occurrence of the vacancies on the post of Chief Engineer Level - II, another D.P.C. was held on 02-02-2006. The Petitioner was again considered and he was not recommended for promotion but Sri A.K. Rathi was recommended for promotion.

The rule relating to promotion is purely on merit. Sri T.S. Panwar - Joint Secretary, Irrigation Department, Dehradun and Sri Naveen Taragi - Under Secretary who appeared before us instructed the Standing Counsel that there is no Government order for determination of the merit of the candidates. This is the tradition being followed that merit is being determined on the basis of adverse entries and then re-arranged according to seniority for promotion equal to that number of vacancies available.

Learned Standing Counsel was instructed that this is the practice also being followed in the State of Uttar Pradesh. There is Government Order in Uttar Pradesh which provides for awarding of adverse entry and cut-off marks was fixed and the candidate obtaining marks upto cut-off marks were re-arranged according to their seniority.

This rule was considered by a Division Bench of the Allahabad High Court (Lucknow Bench) in which one of us (P.C. Verma, J.) was a member in the case of Tribhuwan Ram v. State of U.P. and Ors. in Writ Petition No. 403 of 2000 (S/B) decided on 04-09-2000 which related to the post of Engineer-in-Chief, Public Works Department. In that case, the Division Bench set aside the selection held by the State Government on 26-4-2000. Tribhuwan Ram had obtained highest marks but the candidate on account of his seniority who obtained the lowest cut-off mark was offered promotion to the post of Engineer-in-Chief. The said promotion was quashed as the rule applied for was not the merit rule but was merit-cum-seniority and accordingly direction was issued to give appointment to Tribhuwan Ram on the post of Engineer-in-Chief. This judgment has been upheld by the Hon''ble Supreme Court. Therefore, on that Government Order relied upon by the State of Uttaranchal cannot stand in view of the settled position of law as narrated above.

Hence, the State Government is directed to reconsider the promotion for all the four posts which were filled up on 31-01-2005 out of which one vacancy again came in the year 2006, purely on the basis of merit awarding the marks on the adverse entries and performance of all the candidates by the D.P.C. The candidate who obtains higher marks should be given appointment in order of their merit. Cutoff mark and seniority shall not be applied as it violates the rule of merit.

Learned Counsel for the parties agree that with the aforesaid observations, the petition may be disposed of finally, in view of the fact that the Petitioner has retired from service and he will get only notional promotion, if he is promoted.

In view of the agreement between the parties, the petition is disposed of with the aforesaid terms. However, it is made clear that no ad-hoc arrangement shall be made till compliance of our order.