RAMESH CHANDRA SAXENA Vs. STATE OF UTTARAKHAND & OTHERS
LAWS(UTN)-2013-10-53
HIGH COURT OF UTTARAKHAND
Decided on October 24,2013

RAMESH CHANDRA SAXENA Appellant
VERSUS
State of Uttarakhand and others Respondents

JUDGEMENT

Barin Ghosh, C.J. - (1.) A great injustice has been done to the petitioner. Petitioner was an employee of the State of Uttar Pradesh. State of Uttar Pradesh was reorganized. Petitioner was finally allocated to the State of Uttarakhand in the year 2006. In 2005, State of Uttar Pradesh accorded promotion to the petitioner to the post of Executive Engineer. In 2006, on being allocated, petitioner joined the State of Uttarakhand as an Executive Engineer. In 2013, State of Uttarakhand gave notional promotion to the petitioner to the post of Executive Engineer w.e.f. 24th February, 2004. What the State of Uttarakhand did on 4th February, 2013, it could and should have done no sooner the petitioner had joined the State of Uttarakhand in the year 2006. There is no just reason for sitting over the matter until 4th February, 2013. Petitioner was promoted by the State of Uttarakhand to the post of Superintending Engineer on 22nd June, 2012. On 15th May, 2013, a Departmental Promotion Committee sat for the purpose of considering the suitability of eligible Superintending Engineers for being promoted to the post of Chief Engineer (Level II). The Departmental Promotion Committee was not considering the suitability of the petitioner and, accordingly, he made a representation seeking himself to be also considered. Since no communication was received by the petitioner, he approached this Court and filed the writ petition. In that, he sought that his representation be considered and, thereupon, his suitability be also considered by the Departmental Promotion Committee. Before a final order could be passed on the writ petition, the Departmental Promotion Committee sat on 15th May, 2013 and, without considering the case of promotion of the petitioner, others were recommended for promotion. They have been promoted. Petitioner, thereafter, effected suitable amendments to the writ petition.
(2.) Under the Rules, in order to be promoted to the post of Chief Engineer (Level II), a Superintending Engineer is required to serve for 25 years in the Department on the first day of the year of recruitment and, out of those 25 years, at least three years as Superintending Engineer. The first day of the year of recruitment, in the instant case, was 1st July, 2012. Petitioner, it is not in dispute, served the Department for 25 years; but, having regard to the fact that, on 22nd June, 2012, petitioner was promoted to the post of Superintending Engineer, he had not completed three years as Superintending Engineer as on 1st July, 2012 and, accordingly, his case was not considered at the meeting of the Departmental Promotion Committee held on 15th May, 2013. The fact remains that many other persons also did not complete three years of service as Superintending Engineer as on 1st July, 2012 and, accordingly, the Government exercised its power and granted relaxation to them. The fact also remains that each of those persons, in whose favour relaxation was given, is junior to the petitioner. Under the Rules, a senior always catches up with the junior. Before creation of the State of Uttarakhand, there was a concept of Hill Sub-Cadre, which was separate from the general cadre. No sooner the State of Uttarakhand was created, Hill Sub-Cadre was abolished and there is a concept of only one cadre for all employees of the State of Uttarakhand. Petitioner, while Assistant Engineer, was senior to those, who have been granted relaxation, no sooner he became an Executive Engineer, he became senior to all those Executive Engineers in whose favour the relaxation was granted and, immediately he became a Superintending Engineer, he automatically became senior to all those Superintending Engineers in whose favour the relaxation was granted. There is not a single whisper in any part of the pleadings why relaxation was given to the others and not to the petitioner. Under the U.P. Reorganisation Act, 2000, the Central Government was required to settle allocation of all employees of undivided State of Uttar Pradesh as soon as possible after the appointed date. It took six years for allocation of the petitioner to the State of Uttarakhand. It is nobody's case that, because of any action on the part of the petitioner, his allocation to the State of Uttarakhand was delayed. Because the Central Government has delayed allocation of the petitioner to the State of Uttarakhand, and because the State of Uttarakhand woke up from its slumber in the year 2013 in order to reach to the petitioner his rightful claims; petitioner cannot be made to suffer.
(3.) We, accordingly, allow the writ petition and direct constitution of a Departmental Promotion Committee as soon as possible, but not later than three months from the date of service of a copy of this order upon respondent No. 3. The Departmental Promotion Committee will consider the suitability of the petitioner for being promoted to the post of Chief Engineer (Level II). By an order passed by this Court on 10th June, 2013, one post of Chief Engineer (Level II) has been directed to be kept vacant until further orders of this Court. No application has been filed for vacating this interim order, however, it is being contended that, before this order dated 10th June, 2013 was passed, all posts had been filled-up. In the event that is true, we direct the State Government to create a post for the petitioner, if he is found suitable for being promoted. Petitioner should be notionally promoted from the date his juniors were promoted, in the event, a recommendation for promotion is made by the Departmental Promotion Committee.;


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