Mohan Singh Mehra vs State Of Uttarakhand And Others
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                                                       Reserved judgment


IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

           Writ Petition No. 851 of 2010 (S/S)
              (Under Article 226 of the Constitution of India)

Mohan Singh Mehra                      .......Petitioner
S/o Late Shri Prem Singh
Presently working as Patravahak (Peon)
In Nagar Nigam Inter College,
Kathgodam, District Nainital

                                 Versus

State of Uttarakhand and others                       .....Respondents

Mr. T.A. Khan, Senior Advocate for the petitioner.
Ms. Anjali Bhargava and Mr. P.C. Bisht, Addl. C.S.C. with Mr. N.P. Sah,
Standing Counsel for the State.
Mr. Alok Mahra, Advocate for respondent no.6.
Mr. Ashish Joshi, Advocate for respondent nos. 7 & 8/Nagar Palika.

Hon'ble Lok Pal Singh, J.

By means of this petition, petitioner has sought following reliefs:

"(i) To Issue a writ, order or direction in the nature of certiorari quashing the order dated 31.03.2015, passed by the respondent no.1 (Annexure No.3 to the writ petition).

(ii) To issue a writ, order or direction in the nature of mandamus commanding the respondents no. 1 to 5, 7 and 8 to consider the name of the petitioner for promotion for the post of Junior Clerk/Junior Assistant, prior to the name of respondent no.6 in Nagar Palika Inter College, Kathgodam, District - Nainital, which is under the control of respondent no.7 andin case the respondent no.6 is being promoted, the petitioner may also be given the promotion prior to the respondent no.6 with all consequential benefits."

2. Factual matrix of the case is that the petitioner was appointed as Patravahak (Peon) in Nagar Palika, Inter College, Kathgodam by the

management committee of that school on 12.12.1988. Thereafter, his services were confirmed on 01.05.1989. Respondent no. 6 was subsequently appointed as Lab Assistant in the aforesaid College on 15.04.1991. A seniority list was prepared by the department in this regard, which depict that the petitioner is senior to the respondent no.6, however, the Manager of the said institution promoted the respondent no.6 to the post of Junior Clerk. Feeling aggrieved the petitioner filed representation before the then District Inspector of School. The District Inspector has passed an order on 22.02.1999, whereby the promotion order dated 31.10.1998/03.11.1998 was not approved.

3. Feeling aggrieved, the respondent no.6 preferred a writ petition no. 1427 of 2006(S/S) before this Court. The coordinate bench of this Court vide order dated 26.12.2012 disposed of the said writ petition. Relevant portion of the judgment is extracted below:

"Both the impugned order are kept in abeyance, and I direct the Principal Secretary of the Urban 6 Development Department of the State of Uttarakhand to examine the issue. He will serve notice upon Nagar Palika Parishad as well as petitioner. While doing so, he will examine whether any Rule empowering the Chairman of Nagar Palika Parishad is there to take decision on the question of promotional issue. If he finds such Rule is in existence, then he will examine this matter on merit. If there is no such Rule, order passed by the Chairman as well as the Commissioner will stand recalled and set aside. In that situation, the Secretary shall take steps to specify the authority as mentioned in Sub-section (1) of Section 73 of the Act and, if necessary, to take steps to frame the Rule as required under Subsection (2) of Section 73 of the

Act. After this is done, if it is warranted, fresh decision shall be taken as per the order of the Court. Entire exercise shall be completed within three months from the date of communication of this order. "

4. In compliance of the said judgment, the Secretary, Urban Development, Dehradun passed an order on 27.05.2014, whereby the Secretary recalled his earlier order and passed fresh order on 31.03.2015. Operative portion of the said order is extracted below:

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5. Feeling aggrieved, the respondent no.6 preferred a writ petition no. (S/S) 3577 of 2001 before this Court. The coordinate bench of this Court disposed of the writ petition with the observation that District Magistrate shall pass an appropriate order in accordance with law. In compliance of the aforesaid judgment, the Addl. District Magistrate on behalf of the District Magistrate passed an order directing the Chairman of erstwhile Nagar Palika Parishad, Haldwani to decide the matter as per law. In pursuance of the said order, the then Manager of the College, i.e. the Chairman of erstwhile Nagar Palika Parished, Haldwani passed an order dated 31.03.2005 holding that the order cancelling promotion is lawful, therefore, earlier

order dated 31.10.1998/03.11.1998 granting promotion was recalled. Feeling aggrieved, the respondent no.6 preferred a representation before the Commissioner Kumaun Division, Nainital, which was rejected on 07.07.2006. The respondent no.6 again preferred a Writ Petition No. 1427 of 2006 (S/S), which was decided by this Court vide judgment and order dated 26.12.2012, whereby the Secretary in the Department of Urban Development was directed to examine the issue and take a fresh decision thereon. In compliance of the said judgment, the Secretary passed an order on 27.05.2014 and observed that the promotion of respondent no.6 is per se illegal and the same has been done without complying with the seniority rules.

6. Feeling aggrieved by the aforesaid order, the respondent no.6 filed a recall application. On the said application the Secretary, Urban Development recalled his earlier order and passed the fresh order on 31.03.2015 thereby canceling the order dated 31.03.2005 and 07.07.2006. Feeling aggrieved, the petitioner preferred a writ petition no. 952 of 2004 (S/S), which was decided by this Court vide order dated 01.07.2008. Operative portion of the said judgment is extracted below:

"The writ petition is disposed of finally with the direction that if similarly situated persons junior to the petitioner have been promoted and are still working, the case of the petitioner shall also be considered within a period of two months from the date of production of certified copy of this order."

7. It is contended that the petitioner also moved several representations for redressal of his grievance but the authority concerned has not taken any decision thereon. Hence, this writ petition.

8. Heard learned counsel for the parties and perused the material available on record.

9. Learned counsel for the petitioner would submit that being the senior most class IV employee, the petitioner has a first right to be promoted to the post of Junior Clerk/Junior Assistant. He would further submit that the promotion order of respondent no.6 was not duly approved by the District Inspector of School and the said order was also cancelled by the then Chairman of Nagar Palika. He would further submit that respondent no.1 vide order dated 27.05.2014, has cancelled the promotion of respondent no.6 holding that it was against the rules and it was made without considering the candidature of the senior candidate i.e. petitioner. He would further submit that the order dated 31.03.2015 passed by respondent no.1 is illegal and arbitrary, therefore, the same is liable to be quashed.

10. A counter affidavit has been filed on behalf of respondent nos. 3 & 5 stating therein that the petitioner is working since 01.05.1989 on the post of Patravahak (Peon) and respondent no.6 is posted as Laboratory Assistant since 15.04.1991 in the institution. It is further stated that both the employees are working as Class IV employee in the institution. It is further stated that the then Manager of the College promoted the respondent no.6 on the post of Junior Clerk vide office order dated 31.10.1998/03.11.1998 and thereafter the then District Inspector of School,

Nainital vide letter dated 22.02.1999 has clearly informed the office of respondent no.7 that the petitioner is the senior most class IV employee amongst the all and if there is any post of promotion is available then the petitioner should be promoted. It is further stated that the then District Inspector of School, Nainital enquired the matter after considering the objection of the petitioner regarding promotion of respondent no.6 and it was found that the Manager has issued the promotion order arbitrarily. It is further stated that respondent no.5 has not given any consent or approval regarding the promotion respondent no.6. It is further stated that respondent department has not taken any decision for promoting the respondent no.6 on the post of Junior Clerk. It is further stated that the petitioner and respondent no.6 are still working as Class IV employees in the institution.

11. Respondent no.6 in her counter affidavit has specifically contended that the petitioner and other 4th class employees have submitted their no objections in favour of respondent no.6 that they have no objection in case respondent no.6 is promoted to the post of Junior Assistant. It is further contended that pursuant to the promotional order dated 31.10.1998/03.11.1998, she is working on the promotional post. The respondent no.6 has denied the averments made in the writ petition.

12. Despite time granted, the petitioner did not file rejoinder affidavit to revert the averments made by the respondent no.6 in her counter affidavit.

13. Learned counsel for the respondent no.6 would submit that the respondent no.6 joined her duties on the promoted post on 03.11.1998 and since then she is discharging the duty as Junior Clerk. He would further submit that the respondent institution has called upon all class 4th employees serving in the institution to give their consent in writing as to whether they are interested in promotion or not? In compliance of said communication all employees had express their reluctance for serving as Clerk for one reason or another and stated that the respondent no.6 be promoted as Junior Assistant. He would further submit that the present petitioner had also informed the then Chairman of the institution that he is not willing to accept the promotion due to personal difficulty and has also given his No Objection Certificate regarding the promotion of respondent no.6. He would further submit that the respondent no.1-Secretary, Department of Urban Development on its own wisdom has proceeded to pass the order of promotion. He would further submit that the order dated 31.03.2015 has been passed by respondent no.1 in accordance with the direction of this Court. He would further submit that presently the posts of Junior Assistants are lying vacant in the respondent institution.

14. To this, learned counsel for the petitioner would submit that the petitioner has not given any No Objection Certificate regarding the promotion of respondent no.6 and such certificate has been created by making fake signature.

15. Learned counsel for the respondent no.6 referred the judgment of Hon'ble Apex Court rendered in T.R. Kapoor and others Vs. State of Haryana and others reported in 1989 AIR 2082, wherein it has been held that the benefits which had accrued to those persons by reasons of their promotions cannot now be disturbed or interfered with by giving promotion to the petitioner from deemed dates of eligibility for promotion.

16. A perusal of the record would reveal that the petitioner has not rebutted the averments made in the counter affidavit of respondent no.6, the averments made in the said counter affidavit are found true. Since, it is held that petitioner was senior to the respondent no.6 but at the time of promotion, the petitioner as well as other class-IV employees of the respondent institution gave their No Objection Certificate with the assertion that they have no objection if respondent no.6 is promoted. Having considered the NOC, the respondent no. 6 was promoted to the post of Junior Assistant and since then she is working on the said post. At the relevant point of time, the petitioner foregone his promotion and gave consent for promotion of respondent no.6 but it will not affect the promotion of the petitioner in future and petitioner has not waived his right for promotion on the post of Group 'C' forever. It has come on record that one post of Junior Assistant/Junior Clerk is hold by respondent no.6 and one more post is lying vacant in the institution.

17. In view of the above, this Court is of the view that as the respondent no.6 is still working on the

post of Junior Assistant/Junior Clerk in the department, therefore, she will not be disturbed, however, the respondent department shall promote the petitioner on the vacant post of Junior Assistant/Junior Clerk within a period of two months from the date of presentation of certified copy of this order. It is made clear that the petitioner shall regain his seniority as he was senior most in the feeding cadre.

18. No order as to costs.

(Lok Pal Singh, J.) Mamta

Dated: 12.01.2021