Suresh Chandra vs State Of Uttarakhand And Others

Vipin Sanghi, CJ

The petitioner has preferred this writ petition to seek following substantial prayers:-

i. Issue a writ particularly a Writ in the nature of certiorari declaring O.M (Office Memorandum) dated 22.04.2020 is contrary to the provisions of Rule 3 read with Rule 18 of the Uttaranchal Services of Engineers Minor Irrigation Department, Rules, 2006 framed under Article 309 of the Constitution of India and to that Extent and ultra vires to the provisions of the aforesaid Rules and set aside the same.

ii. Issue a writ in the nature of certiorari and quash the entire proceedings & recommendation of the selection committee dated 24.04.2020 and the promotion order dated 28.04.2020 passed subsequently thereof on the recommendation such DPC to be as invalid, erroneous and illegal.

iii. Issue a mandamus setting aside the promotion order of respondent No.4 with a direction to hold a fresh DPC after communicating the annual confidential report of the petitioner and seeking his objection/ representation against aforesaid annual confidential report and dispose of the same accordingly.

The respondents have filed their respective counter affidavits. One of the preliminary objections taken by respondent no.4 is that the petitioner has an alternative efficacious remedy to raise the challenge to the O.M. dated 22.04.2020 and to assail the proceedings and recommendations of the Selection Committee dated 24.04.2020 and the promotion order dated 28.04.2020 before the Uttarakhand State Public Services Tribunal.

Learned Senior Counsel for the petitioner has firstly relied upon the observations made by this Court in Writ Petition (S/B) No.378 of 2017 in its order dated 25.08.2017, which reads as follows:-

“Accordingly, leaving open the contentions and also the right of the petitioner to approach this Court again, seeking the same relief, we dispose of the writ petition directing respondent no.1 to consider Annexure No.9 within a period of two weeks from the date of production of certified copy of this order”.

Learned Senior Counsel submits that this Court had left it open to the petitioner to approach the Court again seeking the same relief, in case the petitioner’s representation is rejected. Since the representation has been rejected on 24.10.2017, the present petition has been preferred.

A reading of the aforesaid extract from the order passed by this Court on 25.08.2017 does not show that this Court permitted the petitioner to bypass the statutory efficacious remedy available to the petitioner before the Tribunal aforesaid. The aforesaid observation only meant that in case the petitioner’s grievance is not addressed upon invoking the remedy available to him, he could approach this Court once again.

The next submission of learned Senior Counsel for the petitioner is that the petitioner has also assailed the “Amendment” to the Uttaranchal Services of Engineers Minor Irrigation Department Rules, 2006 by the impugned order dated 22.04.2020.

We have extracted hereinabove the prayer sought in the writ petition. There is no prayer made by the petitioner to challenge any so-called amendment of the Rules. In fact, a perusal of the impugned order dated 24.04.2020 shows that the same does not even purport to amend the aforesaid Rules. In fact the submission of the petitioner is that the impugned order dated 24.04.2020 is contrary to Rule 3 read with Rule 18 of the aforesaid Rules. Therefore, we see no impediment in the petitioner approaching the Tribunal.

We, therefore, dismiss this writ petition with liberty to the petitioner to approach the Uttarakhand Public Services Tribunal. We request the Tribunal to expedite the hearing of the petition that may be preferred by the petitioner.

Pending application, if any, stands disposed of.