BAHADUR RAM ARYA Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2012-7-55
HIGH COURT OF UTTARAKHAND
Decided on July 17,2012

Bahadur Ram Arya Appellant
VERSUS
State of Uttarakhand and others Respondents

JUDGEMENT

- (1.) In the writ petition, it has been contended that the criteria for promotion from the post of Assistant Manager to Manager is seniority subject to unfit. In the counter affidavit filed by respondent nos. 1 and 2, this assertion has not been denied. It is the contention of the petitioner that the final seniority list of Assistant Managers for Hill Sub Cadre was published on 22nd May 1993, where it was shown that the petitioner is at Sl. no. 8, whereas respondent no. 3 is at Sl. no. 9. This assertion has also not been disputed by respondent Nos. 1 and 2 in their counter affidavit. Respondent no. 3 has filed a counter affidavit, where he has not denied the said assertion. It is the contention of the petitioner that respondent no. 3, who belongs to General category, was promoted to the post of Manager w.e.f. 10th May 1999 and, while according the said promotion, the case of the petitioner was not considered. This contention has not been disputed by respondent Nos. 1 and 2. What the said respondents have said is that a post of Manager was available for a Scheduled Caste candidate, where the senior most Scheduled Caste candidate was promoted. With that, it has been stated that another post was available for General class candidates and, on that post, respondent no. 3 was promoted. The fact remains that the petitioner, who is a Scheduled Caste, could be promoted to the post reserved for Scheduled Caste, as also, to the post available to General class, whereas respondent no. 3, who belongs to General class, could not be promoted to the post reserved for Scheduled Caste. In the instant case, because the petitioner was a Scheduled Caste, unjustly he was not given promotion to a post, which was available for General class, which includes Scheduled Caste. In the circumstances, promotion granted to respondent no. 3 on 10th May 1999, ignoring the seniority of the petitioner, was unjust and interferable. However, the fact remains that the petitioner has been promoted to the post of Manager on 29th June, 2004. The said promotion, in view of what has been stated above, should relate back to the date of the promotion of respondent no. 3 and, accordingly, it is declared that notionally the petitioner stands promoted to the post of Manager w.e.f. 10th May, 1999.
(2.) On 11th October 2006, respondent no. 3 was promoted to the post of General Manager. In order to be promoted to the post of General Manager, the required eligibility was to serve for three years in the post of Manager. Inasmuch as on 11th October 2006, petitioner had not served for three years as Manager, since he was promoted to the said post only on 29th June 2004, the case of promotion of the petitioner was not considered. The fact remains that, unjustly, petitioner was deprived of promotion on 10th May 1999, which right to be promoted was acquired by the petitioner by virtue of statutory 's. It has not come on record that on 10th May, 1999, the records of the petitioner were such that he could be declared unfit. In those circumstances, it must be deemed that on 11th October 2006, petitioner was unjustly denied an opportunity of being considered for promotion/whereas the case of promotion of respondent no. 3, a junior to the petitioner, was considered. However, the fact remains that, during the pendency of the writ petition, on 28th November 2008, petitioner has been promoted. In that view of the matter, we also declare that the promotion of the petitioner to the post of General Manager w.e.f. 28th November, 2008 shall be deemed to be notionally effected from 11th October, 2006. With the directions as above, the writ petition is dismissed.;


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