Sri Lalit Mohan Singh & others @Hash State of Uttarakhand

Manoj K. Tiwari, J.

Since common question of facts and law are involved in these petitions, therefore, both these writ petitions are being heard and decided by this

common judgment. However, for the sake of convenience, facts of WPSS No. 2310 of 2015, are being taken into consideration for disposal of these

matters.

Petitioners are State employees, who are serving on the post of Assistant Audit Officer. Petitioners in WPSS No. 1885 of 2015 were serving in

Cooperative Societies & Panchayat Audit Wing, while petitioners in WPSS No. 2310 of 2015 were serving in Local Fund Audit Wing. There were

separate service rules for the Auditors serving in these two Wings. These two Wings were unified in terms of Uttarakhand Audit Act, 2012.

Thereafter on 07.11.2012, a Government Order was issued, whereby posts were created for Directorate of Audit. In clause â€" IV of the said

Government Order, it was provided that Local Fund Audit Wing and Cooperative Societies & Panchayat Audit Wing will become sub-cadre of the

unified cadre of Auditors and further that the existing posts in the two sub-cadres are declared to be ‘dying cadre’. Before enforcement of the

Uttarakhand Audit Act, 2012, petitioners had become eligible for promotion to the next higher post of District Audit Officer in their respective cadres

and there were sufficient vacancies available for their promotion. However, due to unification of the cadre, the promotion exercise was put on hold on

the ground that petitioners’ claim for promotion can be considered only after framing of service rules for the unified cadre. Thus, feeling

aggrieved, petitioners have approached this Court by filing writ petition.

Heard learned counsels for the parties and perused the record.

Mr. Rajendra Dobhal Senior Advocate with Mr. T.P.S. Takuli, learned counsel for the petitioners have placed reliance upon a Government Order

dated 23. 01.2003, wherein it is provided that till framing of new service rules, old service rules shall remain in force. Mr. Rajendra Dobhal, learned

Senior Counsel for the petitioners thus contends that in view of the Government Order dated 23. 01.2003, petitioners have a right to be considered for

promotion in terms of the earlier service rules. Learned Senior Counsel for the petitioners has also referred to the stipulation made in the Government

Order dated 07.11.2012, wherein it is provided that promotional avenues of existing employees shall not be disturbed. Thus, learned Senior Counsel for

the petitioners submits that in view of this stipulation in the Government Order dated 07.11.2012, the respondents cannot back out of the solemn

promise given to members of the two audit Wings. Learned Senior Counsel for the petitioners further submits that most of the petitioners have already

retired from service and the remaining petitioners are also going to retire shortly. He further submits that the State Government cannot bring about a

situation due to its inaction, which results in denial of right to be considered for promotion to the petitioners.

Learned Deputy Advocate General for the respondents/State does not dispute that before unification of the two Wings, posts of District Audit

Officer in both the Divisions were to be filled by promotion of Auditors only. The State Government unified the two Wings in terms of Uttarakhand

Audit Act, 2012 by issuing a Government Order as far back as on 07.11.2012.

A period of more than six years have gone by, but the State Government has not initiated promotion exercise for considering claim of the petitioners

for promotion to the post of Senior Auditor. The only justification offered by the State Government is that it is yet to frame service rules for the new

Divisions. Para 3 of the counter affidavit, filed by Director, Audit Uttarakhand, Dehradun, in WPSS No. 2310 of 2015 is extracted below:-

“3. That the contents of para no. 1 of writ petition as stated are not admitted and denied. It is submitted that in State of Uttarakhand the Audit Act

has been passed and also implicated. It is further submitted that vide Govt. Order dated 07.11.2012 the unified organization of Audit Department and

its posts have been reorganized and accordingly the service rules of the department based on unified organization are under process at the Govt. level.

It is also submitted that the process of the promotion against the created / available posts in the unified and reorganized organization may be done in

due course after the adjustment of the employees of the unified and reorganized organization.â€​

Learned counsel for the petitioners submits that in the year 2017, new service rules have been framed known as Uttarakhand Audit Service Rules.

He further submits that under the new rules, an Assistant Audit Officer with qualifying service of eight years alone is eligible for promotion as District

Audit Officer.

It is settled position in law that right to be considered for promotion is a Fundamental Right, therefore, the State Government cannot be permitted to

violate this valuable right of the petitioners due to its inaction. The Hon’ble Supreme Court in the case of Y.V. Rangaiah Vs J. Sreenivasa Rao

reported in (1983) 3 SCC 284 has held that a Government Employee cannot be deprived of chances of promotion on account of delay in preparing

panel for promotion. Para 9 of the said judgment is extracted below:-

“9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared

every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Register

Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the

respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the

amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth

promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore,

there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not

the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.â€​

Similar view was expressed by Hon’ble Supreme Court in the case of State of Punjab & others Vs Arun Kumar Aggarwal & others reported

in (207) 10 SCC 402. In para 30 of the said judgment, Hon’ble Supreme Court has held that “there is no quarrel over the proposition of law that

normal Rule is that the vacancy prior to the new Rule would be governed by the old Rules and not by the new Rules.â€​

The aforesaid view was reiterated by Hon’ble Supreme Court in the case of Richa Mishra Vs State of Chhatisgarh & others reported in AIR

2016 SC 753. Para 19 of the said judgment is extracted below:-

“19. Question No. 1

The High Court held that first and second requisitions to commence recruitment process against the vacant seats to the post of Dy. S.P. was made

when Rules, 2000 were in force. Therefore, recruitment was rightly undertaken under Rules, 2000.

The admitted facts are that the process of selection started before Rules, 2005 were promulgated with the requisitions dated September 27, 2004 and

March 26, 2005 sent by the State Government to the CPSE. At that time, Rules, 2000 were in vogue. For this reason, even in the requisition it was

mentioned that appointments are to be made under Rules, 2000. Further, it is also an admitted fact that the vacancies in-question which were to be

filled were for the period prior to 2005. Such vacancies needed to be filled in as per those Rules, i.e. Rules, 2000. This is patent legal position which

can be discerned from Y.V. Rangaiah and Others V. J. Shreenivasa Rao. As per the facts of that case a panel had to be prepared every year of list

of approved candidates for making appointments to the grade of Sub-Registrar Grade-II by transfer according to the old rules. However, the panel

was not prepared in the year 1976 and the petitioners were deprived of their right of being considered for promotion. In the meanwhile, new rules

came into force. In this factual background, it was held that the vacancies which occurred prior to the amended rules would be governed by the old

rules and not by the amended rules. The judgment in the case of B.L. Gupta and Another V. M.C.D. also summarises the legal position in this behalf.

The judgment in P. Ganeshwar Rao and others v. State of Andhra Pradesh and Others is also to the same effect. Para 9 of the judgment lying down

the aforesaid proposition of law, is reproduced below:

“9. When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been

held to be prospective by the High Court and in our opinion this was the correct conclusion. This being so, the question which arisen earlier than 1995

can be filled as per the 1995 Rules. Our attention has been drawn by Mr. Mehta to a decision of this Court in the case of N.T. Devin Katti v.

Karnataka Public Service Commission [(1990) 3 SCC 157]: (AIR 1990 SC 1233). In that case after referring to the earlier decisions in the cases of

Y.V. Rangaiah (AIR 1983 SC 852), P. Ganeshwar Rao (AIR 1988 SC 2068), and A.A. Calton v. Director of Education [(1983) 3 SCC 33]: (AIR

1983 SC 1143) it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old

Rules and not by the amended Rules.â€​â€​

As per our constitutional scheme, State has to act as a model employer, having due regard to the aspirations / legitimate expectations of its

employees. Most of the petitioners have already retired from service and very few are still continuing in service with the legitimate expectation that

their claim for promotion would be considered before they retire from service. Right to be considered for promotion is a valuable right, which has been

elevated to the status of Fundamental Right, therefore, the delay by the State Government in the matter cannot be justified. State is under a duty to do

the needful to ensure that petitioners are not denied their right to be considered for promotion.

In such view of the matter, writ petitions are disposed of with a direction to the State Government to take necessary steps to ensure that claim of

the petitioners for promotion to the post of District Audit Officer is considered without any further delay. It is further directed that upon culmination of

promotion exercise, appropriate orders shall be passed by the Competent Authority on or before 31.12.2018.