NARESH KUMAR ARYA Vs. STATE OF UTTARAKHAND AND OTHERS
LAWS(UTN)-2013-10-66
HIGH COURT OF UTTARAKHAND
Decided on October 31,2013

Naresh Kumar Arya Appellant
VERSUS
State of Uttarakhand and others Respondents

JUDGEMENT

Barin Ghosh, C.J. - (1.) Petitioner belongs to Scheduled Caste community. He is an Assistant Engineer. He was appointed as an ad hoc Assistant Engineer on 24th September, 2005. The ad hoc appointment was made having regard to the then immediate requirement of the State. He could not be substantively appointed on that date, inasmuch as, by that time, the State could not consult the Public Service Commission for promoting the petitioner to the post of Assistant Engineer, as is the requirement of the Rules. The Uttaranchal Irrigation Department Engineering Services (Civil/Mechanical) Group A Service Rules, 2003, contemplate, amongst others, the posts of Executive Engineer. The posts of Executive Engineer are to be supplied by promotion from amongst the substantively appointed Assistant Engineers, who have completed 7 years service on the first day of the year of recruitment. The first day of the year of recruitment, in the instant case, was 1st July, 2011. As on 1st July, 2011, petitioner had not completed 7 years of service as Assistant Engineer. The recruitment Rules permitted the Government to relax any of the provisions contained therein. In exercise of such power, the Government gave a relaxation of completion of 3-1/2 years service on the first day of the year of recruitment. Accordingly, any Assistant Engineer, who completed 3-1/2 years service on 1st July, 2011, was eligible for being considered for promotion to the post of Executive Engineer. Despite that, petitioner was not considered for promotion. Accordingly, the present writ petition has been filed.
(2.) In the counter affidavit, the State has contended that, on 24th September, 2005, petitioner was appointed as an ad hoc Assistant Engineer and he was substantively appointed as Assistant Engineer on 14th July, 2008 after consultation with the Public Service Commission and the Rules required the substantively appointed Assistant Engineers to have completed 3-1/2 years service, after taking into account the relaxation accorded, on the first day of the year of recruitment, i.e. on 1st July, 2011, and, since the petitioner had not completed 3-1/2 years of service as on 1st July, 2011, his case for promotion to the post of Executive Engineer was not considered.
(3.) The learned counsel for the petitioner has drawn our attention to the fact, which is not being disputed, that, since after the petitioner was appointed as an ad hoc Assistant Engineer and, until such time, he was substantively appointed as Assistant Engineer on 14th July, 2008; petitioner continued to function as and discharged the duties of Assistant Engineer. The learned counsel for the petitioner has drawn our attention to the Constitutional Bench judgment, rendered in the case of Direct Recruit Class II Engineering Officers Association v. State of Maharashtra and others, reported in (1990) 2 SCC 715, where it has been held that, if the initial appointment is not made by following the procedure laid down by the Rules, but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the Rules, the period of officiating service will be counted for the purpose of seniority.;


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