- (1.) BY means of this writ petition, the petitioner has prayed for the following reliefs : a) Issue writ rule or direction in the nature of certiorari quashing the impugned order dated 04-06-2005 as contained to Annexure No. 1 to this petition and its ef fect and operation also. b) Issue any other writ, order or di rection in the nature of mandamus commanding to the respondent No. 1 to review the D. PC. and to consider the case of the petitioner on the vacant post of Chief Engineer Level-II and to grant him all consequen tial benefits w. e. f. 31-01-2005.
(2.) WE have heard Sri M. C. Pant, learned counsel for the petitioner and Sri K. R Upadhyay, learned Standing Coun sel for the" State and perused the record. From the perusal of the record it reveals that for four vacancies of the post of Chief Engineer, Level-II, the D. P. C. was held on 31-10-2005 in which the petitioner was considered and the petitioner was not recom mended for promotion. Sri S. M. Saxena, Sri H. C. Pathak, Sri B. B. L. Mittal and Sri Shiv Datt were recom mended for promotion and were given promotion on the post of Chief Engi neer, Level-II. On account of further oc currence of the vacancies on the post of Chief Engineer Level - II, another D. RC. was held on 02-02-2006. The petitioner was again considered and he was not recommended for promotion but Sri A. K. Rathi was recommended for promotion. The rule relating to promotion is purely on merit. Sri T. S. Panwar -Joint Secretary, Irrigation Department, Dehradun and Sri Naveen Taragi - Un der Secretary who appeared before us instructed the Standing Counsel that there is no Government order for de termination of the merit of the candi dates. This is the tradition being fol lowed that merit is being determined on the basis of adverse entries and then re-arranged according to seniority for promotion equal to that number of va cancies available.
(3.) LEARNED Standing Counsel was instructed that this is the practice also being followed in the State of Uttar Pradesh. There is Government Order in Uttar Pradesh which provides for awarding of adverse entry and cut-off marks was fixed and the candidate ob taining marks upto cut-off marks were re- arranged according to their seniority. This rule was considered by a Division Bench of the Allahabad High Court (Lucknow Bench) in which one of us (P. C. Verma, J.) was a member in the case of Tribhuwan Ram Vs. State of U. P & others in Writ Petition No. 403 of 2000 (SIB) decided on 04-09-2000 which related to the post of Engineer-in-Chief, Public Works Department. In that case, the Division Bench set aside the selection held by the State Govern ment on 26-4-2000. Tribhuwan Ram had obtained highest marks but the candidate on account of his seniority who obtained the lowest cut-off mark was offered promotion to the post of Engineer-in- chief. The said promotion was quashed as the rule applied for was not the merit rule but was merit-cum- seniority and accordingly direction was issued to give appointment to Tribhuwan Ram on the post of Engi neer-in-chief. This judgment has been upheld by the Hon'ble Supreme Court. Therefore, on that Government Order relied upon by the State of Uttaranchal cannot stand in view of the settled po sition of law as narrated above.;