Uttarakhand High Court
Hon'Ble Sharad Kumar Sharma vs State Of on 7 December, 2021
Office Notes,
reports, orders or
proceedings or
SL. No Date COURT'S OR JUDGES'S ORDERS
directions and
Registrar's order
with Signatures
WPSS No.1536 of 2021
Hon'ble Sharad Kumar Sharma, J.
Mr. Shivanand Bhatt, Advocate, for the
petitioner.
Ms. Anjali Bhargava, Additional CSC,
for the State of Uttarakhand/respondent Nos.1
to 3.
Having a genesis from an order of
05.06.2003, determining the inter se seniority
as against the list of clerical cadre post, which
constituted as to be the basis for promotion to
the next superior post of the senior clerical
cadre. Raising his controversies based on the
determination made on the basis of seniority list
dated 05.06.2003, as to be taken as to be the
foundation for the initial promotion, the
petitioner had earlier approached the writ court
by way of a Writ Petition (S/S) No.153 of
2008, "Kunwar Singh Rawat Vs. State of
Uttarakhand & others", which was disposed
of by the learned coordinate Bench of this
Court by the judgment dated 13.06.2011. The
relevant part of the judgment is extracted
hereunder:-
"Learned counsel for the State,
however, contended that the petitioner
could not have been given promotion
form Class IV to Class III de hors the
law. There is procedure prescribed
under the law by which the
candidature of only suitable candidate
has to be considered which may
include qualification in written
examination.
Be that as it may, the fact of the
matter is that initial promotion of the
petitioner order dated 5.6.2003
nowhere states that the order is passed
subject to the final decision of the writ
petition inasmuch such an order could
not have been passed as the writ
petition of the petitioner stood finally
disposed of. All the same, it is also
true that promotion of the petitioner to
Class III post cannot be made de hors
the law. Moreover, it is nobody's
Fundamental Right to be promoted to
the next higher post. The Fundamental
Right of the petitioner is only limited
to the extent that the petitioner be
considered for promotion. This being
the law, the writ petition is disposed of
with the direction to the concerned
authorities to consider the case of the
petitioner for promotion to Class III
post in accordance with law. This
Court has been informed at the bar that
these promotions are made on the
basis of seniority subject to rejection
on unfit. This being the situation the
petitioner's candidature be considered
in accordance with law and in case the
authorities find the petitioner is
suitable, his promotion shall be
considered from the date he was
initially promoted i.e. from 5.6.2003.
The writ petition is disposed of
accordingly. No order as to costs."
The coordinate Bench of this Court,
while disposing of the writ petition, a direction
was issued to the concerned authorities to
consider the claim of the petitioner for
promotion to the next higher post of Class III
post, in accordance with law.
In compliance thereto, the office of the
Director, Ayush Department, had rejected the
claim of the petitioner by an order dated
26.02.2013, as would be apparent from the
Annexure No.12, to the writ petition.
Once the petitioner places on record the
order of 26.02.2013, rejecting his claim to be
considered for promotion, which was yet again
based on the list of 05.06.2003, of the feeding
cadre, it goes without saying, that the petitioner
was conscious of passing of the order dated
26.02.2013, and the relief for putting a
challenge to the said order of rejection of claim,
was obviously made available to him under the
law as back as in the year 2013, but the
petitioner for the reason best known to him has
not challenge the order of 26.02.2013, and not
even today, in fact the petitioner has yet again
reiterated his claim which is similar as it was in
the earlier writ petition, in following manner:-
"(i) Issue a writ in the nature of
Mandamus commanding and
directing the respondents to include
the name of petitioner in the
seniority list of clerical cadre on the
basis of his promotion order dated
05.06.2003 (annexure 1) in proper
place and accordingly as per his
seniority in clerical cadre he may be
granted promotion to the post of
Senior Assistant from due date or
from the date when his juniors were
promoted to the post of Senior
Assistant and the petitioner be
granted all consequential benefits
after inclusion in seniority list of
clerical cadre."
If the annexure No.12, is comparatively
read with the directions issued by the
coordinate Bench earlier in its judgment dated
13.06.2011, the nature of the relief sought on
the basis of the seniority list of a clerical cadre
for his promotion, it is almost an identical
relief, which was the subject matter of the
earlier writ petition, which had been reagitated
now.
The petitioner cannot be permitted to re-
agitate the issue, which earlier stood
adjudicated by the coordinate Bench of this
Court on 13.06.2011, and particularly, when his
claim for promotion was also rejected by the
respondents by an order dated 26.02.2013.
Praying for the same relief; without putting a
challenge to the order dated 26.02.2013, would
be barred by law, and petitioner cannot be
permitted to successively filed the writ petitions
for the same relief, particularly, when the
adjudication of his claim has already been taken
place in the year 2013. It cannot be ruled out
that the nature of the relief modulated by the
petitioner without putting a challenge to the
order dated 26.02.2013, was a conscious
attempt made by the petitioner to avail a
remedy of the writ of mandamus, without
giving a challenge to the order of prior rejection
of his claim by the order dated 26.02.2013,
passed in compliance of the earlier judgment
dated 13.06.2011. Hence, on that short premise
itself, this Court is not inclined to interfere in
the writ petition. The writ petition is
accordingly dismissed.
(Sharad Kumar Sharma, J.)
07.12.2021
NR/
