State of Uttarakhand & another vs Keshav Datt Tiwari & others

V.K. Bist, J.

Lok Pal Singh, J.

Learned Senior Counsel appearing for the review applicants prayed that the review application may be converted into recall application.

Learned counsel appearing for the other side did not oppose for the same.

Considering the submission advanced by the learned counsel for the parties and also in the interest of justice, the review application is converted

into recall application.

Heard learned counsel for the parties.

There is delay of 340 days in filing the recall application.

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Reasons furnished in the affidavit filed in support of the delay condonation application are sufficient to condone the delay in filing the recall

application. Consequently, the application for condonation of delay is allowed and the delay in filing the recall application stands condoned.

Respondent nos. 1 to 7 in the Special Appeal filed Writ Petition (S/S) No. 273 of 2009 before this Court. Prayers sought in the writ petition read as

under:

“I. Issue a writ, order or direction in the nature of Mandamus declaring that the petitioners are entitled for regular promotion to the post of

‘Leading Fireman’ on the basis of Range Test and Central test held in the year 2002 and after completion of 3 months successful training in the

month of Jan. 2009.

II. Issue a writ, order or direction in the nature of Mandamus for issuing declaration to the effect that the petitioners are entitled for promotion to the

post of ‘Leading Fireman’ earlier to those who completed their training subsequently or who have not passed ‘Merit test’ i.e Range Test

or Central test at all, held in the year 2002 or subsequently.

III. Issue a writ, order or direction in the nature of Mandamus for issuing declaration to the effect that without passing ‘Merit test’, which is

range Test and Central test, any ‘Fireman’ can not be entitled for promotion to the post of ‘Leading Fireman’ in view of relevant Service

Rule and, therefore, the order of ad-hoc promotion dated 22 November 2008 passed by the respondent no. 2 is bad in law and is liable to be set aside

and any person promoted on ad-hoc basis on the post of ‘Leading ‘Fireman’ on the basis of said order is not entitled for confirmation or

regular promotion on the post of ‘Leading ‘Fireman’.

IV. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to give the benefits of promotion of the post of

‘Leading Fireman’ with consequential seniority to the petitioners w.e.f. 17-12-2005, when the unsuccessful candidates were promoted to the

post of ‘Leading Fireman’, ignoring the candidatures of the petitioners who had already been selected in the Range test and Central test in the

year 2002 meant for promotion.â€​

On 29.07.2013, the learned Single Judge allowed the said writ petition. Operative portion of the said judgment reads as under:

“36. In view of above, the writ petition is allowed and a mandamus is issued to the respondents directing them to issue the appointment letters in

favour of the petitioners forthwith, which shall have its effect since 17.12.2005 when “promotions†on the basis of seniority were made. Needful

be done within one month from the date of production of a certified copy of this order. All promotions made on the basis of seniority are also set aside.

No order as to costs.â€​

Aggrieved by the order dated 29.07.2013, the State of Uttarakhand preferred this Special Appeal. On 23.04.2014, the Co-ordinate Bench of this

Court dismissed this Special Appeal in the following manner:

“There has been 18 days’ delay in preferring the appeal. An Application for condonation of delay has been filed. The same is not objected to

by the learned counsel for the respondents.

We have independently considered the averments made in the Application for condonation of delay and, being satisfied with the reasons furnished for

the delay, allow the Application for condonation of delay.

There is no dispute that, in terms of the provisions contained in U.P. Fire Service Act, 1944, the State Government had power to make Rules, but no

such Rules were made. On the other hand, the State Government made Rules known as United Provinces Fire Services (Recruitment and Conditions

of Service) Rules, 1945. In terms thereof, Fireman, on merits alone, could be promoted to the post of Leading Fireman. An exercise was undertaken

to ascertain the merit of Firemen for being promoted to the posts of Leading Firemen in the year 2002. After the exercise was completed, results

were not declared. A writ petition was filed, which was allowed by directing the State Government to declare the results. Accordingly, results were

declared and the people, who succeeded in the test, were sent for training. While they were sent for training, 52 Firemen, but not who were declared

meritorious, were given officiating appointments to the posts of Leading Firemen. The people, who succeeded in the test, were not granted the

promotion. Those, who were declared meritorious, approached the Court by filing a writ petition seeking a direction to issue appointment letters in their

favour.

The writ petition was contested by the appellants by holding out that the 1945 Rules were not applicable; instead, the Rules known as Uttarakhand

Government Servants (Criterion for Recruitment by Promotion) Rules, 2004 are applicable.

The fact remains that the promotional exercise was undertaken on the basis of the Rules, as were prevalent immediately before the Uttarakhand

Government Servants (Criterion for Recruitment by Promotion) Rules, 2004 came into effect. People, who were entitled to the benefit of the previous

Rules, could not be denied, in law, the benefit of the said Rules. In the circumstances, the writ petition has been allowed by the judgment and order

under appeal. We refuse to interfere and dismiss the appeal.â€​

It is submitted by the learned Senior Counsel appearing for the recall applicants that, after the judgment passed by the Division Bench in this

Special Appeal, promotions of the recall applicants were set aside. Thereafter, the recall applicants came to know about the judgment passed in this

Special Appeal and preferred the recall application as well as Special Appeal No. 283 of 2015 before this Court.

It is the contention of learned Senior Advocate appearing for the recall applicants that neither the recall applicants were arrayed as party

respondents in the writ petition nor any prayer was sought by the writ petitioners for quashing the promotion order of the recall applicants. He also

submitted that, before passing the order sought to be recalled, neither the recall applicants were heard by the learned Single Judge nor by the Division

Bench nor they were arrayed as party respondents in the writ petition.

Learned Senior Counsel appearing for the recall applicants prayed that the order dated 23.04.2014 passed in this Special Appeal may be recalled,

inasmuch as, the recall applicants were neither arrayed as party respondents in the writ petition as well as in this Special Appeal nor the promotion

orders of the recall applicants were challenged. Furthermore, the recall applicants were not afforded an opportunity of hearing. Learned counsel for

the other side did not oppose for the same.

With the consent of learned counsel for the parties, the order dated 23.04.2014 passed in this Special Appeal is hereby recalled. The Special

Appeal is restored to its original number.

List this Special Appeal alongwith SPA No.283 of 2015 for hearing on 10.09.2018.

It is made clear that the status of the parties shall not be changed during the pendency of this Special Appeal.