State Of Uttarakhand And Another vs Kewal Singh

Ramesh Ranganathan, CJ

Heard Mr. Vikas Pandey, learned Standing Counsel for the appellant-State of Uttarakhand and Mr. T.A. Khan, learned Senior Counsel assisted by Mr. A.K. Arya, learned Counsel for the respondent-writ petitioner.

The application in CLMA No.1982 of 2019, seeking condonation of delay in preferring this Appeal, is not opposed by Mr. T.A. Khan, learned Senior Counsel for the respondent-writ petitioner. The Delay Condonation Application is therefore allowed, and the delay is condoned.

This appeal is preferred against the order passed by the learned Single Judge in WPSS No. 810 of 2012 dated 05.04.2018. In the order under appeal the learned Single Judge observed that the petitioner was fully eligible and qualified for promotion, but the respondents, instead of considering him, had promoted his juniors; and the petitioner ought to have been considered in accordance with law. The Learned Single Judge, thereafter, quashed the order dated 28.02.2012 which related to excess salary paid to the petitioner, and directed the respondents to consider the case of petitioner for promotion, if necessary, by holding a review D.P.C., from the date persons junior to him were considered and promoted. The dispute, in this writ petition, relates to the post of Cameraman, promotion to which post was sought both by the respondent-writ petitioner and the third respondent in the writ petition.

It is the case of the writ petitioner that, while he was appointed in a substantive vacancy on a regular basis, the third respondent, who was regularised subsequent to the petitioner's entry into the services, was treated as senior to him by including the ad-hoc services rendered by him earlier i.e. service prior to regularisation.

The submission of Mr. T.A. Khan, learned Senior Counsel, is that, since the services of an employee is required to be reckoned only from the date on which his services were actually regularised, the services rendered by him on an ad-hoc basis cannot be reckoned for the purpose of computing his seniority; the writ petitioner is senior to the third respondent in the writ petition, and the appellant herein erred in promoting the third respondent as a Cameraman, instead of promoting the writ petitioner.

If, as contended by Mr. T.A. Khan, learned Senior Counsel for the respondent-writ petitioner, the writ petitioner is entitled to be promoted to the said post, then the third respondent may be required to be reverted to his earlier post of Junior Cameraman. None of these contentions have been taken note of, much less considered, in the Order under Appeal.

While Mr. T.A. Khan, learned Senior Counsel would express urgency contending that the writ petition has been pending on the file of this Court for last seven years, the fact remains that the contentions now urged before us both by Mr.Vikas Pandey, learned Standing Counsel for the appellant and Mr. T.A. Khan, Learned Senior Counsel for the respondent-writ petitioner,would not, ordinarily, be examined by the appellate Court, that too in an intra-court appeal, as these matters ought to have been examined by learned Single Judge in the first instance.

Suffice it, in such circumstances, to set aside the Order under Appeal and restore the writ petition to file. This writ petition relates to year 2012, and as all matters relating to the year 2014, and prior thereto, have been indentified for expeditious disposal, Mr. Aditya Kumar Arya, Learned counsel for the respondent-writ petitioner, is permitted to request the learned Single Judge, before whom such matters are listed, to take up the Writ Petition for early hearing.

Both Mr. Vikas Pandey, learned Standing Counsel for the State of Uttarakhand-appellant and Mr. T.A. Khan, learned Senior Counsel appearing on behalf of respondent-writ petitioner, would agree that, since the order passed by learned Single Judge has already been implemented, status quo as on today may be maintained till the writ petition is finally heard and decided by the learned Single Judge. As learned counsel of either side are in agreement, status quo as on today shall be maintained by both the parties till the writ petition is finally heard and decided by the learned Single Judge in accordance with law.

The Special Appeal is disposed of accordingly. No costs.