J P TRIPATHI Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2012-6-31
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Decided on June 07,2012

J.P. TRIPATHI S/O SRI GIRIRAJ PRASAD TRIPATHI Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

- (1.) The petitioner was appointed as a Junior Clerk in the year 1965 in the Department of Animal Husbandry in the erstwhile State of U.P. The appointment was made through direct recruitment as per the provisions of U.P. Animal Husbandry Clerical Rules, 1981 (hereinafter referred to as the Rules of 1981). The petitioner was promoted to the post of Senior Clerk and, thereafter, to the post of Head Clerk. As per the seniority list, which is not in dispute, one Mr. M.M. Tiwari was the seniormost in the clerical cadre. The petitioner was the next seniormost and at serial No. 3, one Mr. B.S. Sajwan.
(2.) The post of Accountant is required to be filled up by way of promotion from the clerical cadre as per Rule 4 of the Rules of 1981. Rule 18 provides that the Selection Committee will promote the seniormost person in the clerical cadre subject to the rejection of the unfit.
(3.) It transpires that respondents promoted Mr. B.S. Sajwan w.e.f. 9th May, 1997 even though Mr. B.S. Sajwan was junior to the petitioner and Mr. M.M. Tiwari. Mr. M.M. Tiwari, being aggrieved by the promotion, filed a writ petition before the Allahabad High Court which was disposed of directing the respondents to decide the representation of Mr. M.M. Tiwari. The representation of Mr. M.M. Tiwari was decided and the appointment of Mr. B.S. Sajwan was cancelled. Sri B.S. Sajwan preferred a writ petition in which an interim order was granted. Sri M.M. Tiwari also filed a writ petition and, upon the creation of the State of Uttarakhand, both the writ petitions were transferred to the Uttarakhand High Court. The Uttarakhand High Court remitted the matter to the Public Service Tribunal for its disposal. In the meanwhile, Sri M.M. Tiwari as well as Sri B.S. Sajwan retired from service and, consequently, the Tribunal issued an order dated 12th March, 2007 holding that Sri M.M. Tiwari should be given notional promotion w.e.f. 9th May, 1997, i.e. the date when Sri B.S. Sajwan was promoted with all consequential benefits. The Tribunal was of the opinion that the Government Order dated 11 th August, 1983 cannot be relied upon by the Department since the eligibility criteria mentioned therein was against the eligibility criteria mentioned in the Rules of 1981. It has come on record that the order of the Tribunal dated 12th March, 2007 has become final and has been implemented by the respondents. Sri M.M. Tiwari was given notional promotion with all consequential benefits.;


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