Uttarakhand High Court
Balbir Singh vs State Of Uttarakhand And Others on 30 September, 2021
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 4244 of 2018
Balbir Singh ...Petitioner
Versus
State of Uttarakhand and others ....Respondents
Present:-
Mr. Syed Nadim and Mr. Phupendra Prasad,
Advocates for the petitioners.
Mr. Narain Dutt, Brief Holder for the
State/respondent no.1.
Mr. Gopal K. Verma, Standing Counsel for the State
of UP/respondent no.2.
Mr. Sandeep Kothari, Advocate for respondent nos.
3, 4 and 5.
Mr. N.S. Pundir, Advocate for respondent no.6
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
Challenge in the instant petition is to an order
dated 11.08.2017, passed by the respondent no.1, by
which, the claim of the petitioner for his promotion w.e.f.
18.01.1995, when the persons junior to him were
promoted, has been denied. The petitioner also seeks
related reliefs including that directions be issued so that
the petitioner may be considered for promotion to the post
of Assistant Engineer from the date, when his juniors
were promoted.
2. It is the case of the petitioner that he was
appointed as Junior Engineer on 18.12.1981. On
18.01.1995, 9 Junior Engineers, who were junior to the
petitioner were promoted and again on 29.12.1995, four
more Junior Engineers, who were junior to the petitioner
were promoted to the post of Assistant Engineer, but the
petitioner was not promoted. Feeling aggrieved by the
action of the respondents, the petitioner made a Claim
No. 71 of 1995, Balbir Singh Vs. State of U.P. and others
(for short, "the claim"), before the State Public Services
Tribunal, Lucknow, Uttar Pradesh. The claim was decided
on 15.11.2002. The Tribunal held that the petitioner is
entitled to get promotion w.e.f. 18.01.1995 and
accordingly, directions were issued. The petitioner was
not promoted even thereafter. In the meanwhile, an FIR
was lodged against the petitioner. The petitioner made
various representations. Finally, he had to file another
writ petition i.e. Writ Petition (S/S) No. 379 of 2015,
Balbir Singh vs. State of Uttarakhand and others (for
short, "the petition"). The petition was allowed on
28.03.2017 with the following order:-
"Accordingly, the writ petition is disposed of
with the direction to the respondents to consider the
case of the petitioner for promotion to the post of
Assistant Engineer from the date persons junior to
him have been promoted, within three weeks from
today. Respondents are also directed to pay due and
admissible salary to the petitioner."
2. The petitioner was still not promoted. He had
to file contempt petition, but then by the impugned order
dated 18.08.2017, the claim of the petitioner for
promotion has been denied. This order is impugned
alongwith related reliefs.
3. The respondent no.1, the State of Uttarakhand
filed a counter affidavit. With regard to the judgment
dated 15.11.2002, passed in the claim, it is stated in para
4 that compliance was to be done by the State of Uttar
Pradesh because in the claim, the State of Uttarakhand
was not a party. Thereafter, in paragraphs 11, 12 and 13,
the State of Uttarakhand has averred that, in fact, on
various occasions, they had sent the requisitions for
promotion to the post of Assistant Engineer alongwith the
list of eligible candidates, including the petitioner, but the
petitioner was not recommended by the Public Service
Commission, Uttarakhand.
4. The respondent no.6 is the Uttarakhand Public
Services Commission has also filed the counter affidavit
and in para 7, the reasons for not recommending the
petitioner for promotion have been given as hereunder:-
(i) In the year 2006, the petitioner was not
found suitable for promotion because
there was an adverse entry of the year
2002-2003 and he was also suspended.
(ii) In the year 2013, the petitioner was not
found suitable for promotion to the post
of Assistant Engineer because a criminal
case was pending against him.
5. The petitioner has also filed a rejoinder
affidavit. In fact, the petitioner has brought on record, the
judgment delivered in Special Sessions Trial No. 90 of
2007, State Vs. Balbir, by the Court of Special Judge,
Vigilance, CBCID and Police, Garhwal Region, Dehradun,
by which the petitioner has been acquitted of the charge.
6. Heard learned counsel for the parties and
perused the record.
7. Learned counsel for the petitioner would
submit that, in fact, the petitioner was entitled to
promotion on 18.01.1995, when the juniors to him were
promoted. On that date, no adverse remarks were ever
communicated to him and the issue was heard and
decided by the Tribunal in the claim, which was decided
on 15.11.2002. The Tribunal found that the petitioner
was entitled to promotion w.e.f. 18.01.1995. It is also
submitted that the subsequent Annual Confidential
Remarks of the year 2002 or lodging of the FIR or
pendency of the criminal cases are not relevant for
deciding the lis because the claim of the petitioner is, his
eligibility for promotion on 18.01.1995. Any action after
18.01.1995 may not be a determining factor to evaluate
the eligibility or suitability of the petitioner for promotion
to the post of Assistant Engineer on that date. There is
nothing against the petitioner, which may disentitle him
for promotion w.e.f. 18.01.1995, when nine persons
junior to him were promoted. It is submitted that, in fact,
the petitioner has already been retired on 31.08.2021,
now the petitioner may only be entitled to some notional
benefits as may be admissible to him. Therefore, it is
submitted that the petition deserves to be allowed.
8. Learned State counsel would submit that in
the claim, the State of Uttarakhand was not a party. The
judgment dated 15.11.2002 passed in the claim by the
Tribunal was to be complied with by the State of Uttar
Pradesh and not by the State of Uttarakhand.
9. It may be noted here that after the creation of
State of Uttarakhand, the petitioner joined in the State of
Uttarakhand on 17.11.2000. This fact is not disputed. It
is stated in para 2 of the writ petition and in para 17 of
the counter affidavit filed by the State, this factum is not
disputed. In view of it, the Court wanted to know from the
learned counsel that since the petitioner had joined in the
State of Uttarakhand on 17.11.2000, what compliance
was expected from the State of Uttar Pradesh pursuant to
the decision dated 15.11.2002 of the Tribunal? To it,
there is no reply.
10. Learned counsel for the State of Uttar Pradesh
would submit that after creation of the State of
Uttarakhand, the services of the petitioner were
transferred to the State of Uttarakhand, when he joined
on 17.11.2000. Therefore, it is argued that whatever
action was to be taken with regard to the service
conditions of the petitioner after 17.11.2000, that was
required to be done by the State of Uttarakhand. The
judgment passed in the claim was to be honoured by the
State of Uttarakhand and not by the State of Uttar
Pradesh.
11. Learned counsel for the Commission would
submit that, in fact, commission had received requisition
for the promotion to the post of Assistant Engineer from
the year 2006 onwards, but the petitioner was not found
suitable for promotion because of the reasons as noted in
its communication by the Commission.
12. The suitability of the petitioner for promotion
to the post of Assistant Engineer has to be examined as
on 18.01.1995. This dispute has, in fact, already been
settled by the Public Service Tribunal, Uttar Pradesh,
when in the claim on 15.11.2002, the claim of the
petitioner for promotion w.e.f. 18.01.1995 has been
upheld. In the claim, it was found that on 18.01.1995, the
petitioner was not promoted because there was an
adverse remark in his record for the year 1991-1992, but
it was found that this remark was communicated to the
petitioner in the year 1995. The Tribunal found that un-
communicated adverse remark could not have been taken
into consideration, while adjudging the suitability of a
candidate for promotion. As stated, after 18.01.1995,
another exercise for promotion was done by the
Department. On 29.12.1995, when four persons junior to
the petitioner were promoted. There is no reason, as to
why the petitioner was not promoted then because the
adverse remarks for the year 1991-1992, which were
communicated to the petitioner in the year 1995 had
already been expunged on 14.12.1995. These facts are
discussed quite in detail in the judgment dated
15.11.2002 of the Tribunal.
13. The petitioner has shown and established that,
in fact, he was entitled to promotion on 18.01.1995 to the
post of Assistant Engineer, when juniors to him were
promoted. The respondents have not shown even one
reason as to why the petitioner was not promoted on
18.01.1995, when juniors to him were promoted. If the
petitioner was working in the State of Uttarakhand on
15.11.2002 and he was working since 17.11.2000, how
the State of Uttarakhand may expect that the judgment
dated 15.11.2002, passed by the Public Services Tribunal,
Uttar Pradesh, would be honoured by the State of Uttar
Pradesh? Does it mean that the order for promotion ought
to have been passed by the State of Uttar Pradesh, in view
of the judgement dated 15.11.2002 of the Tribunal? But,
the State of Uttar Pradesh could not have passed such
order. The petitioner on 15.11.2002 was an employee in
the State of Uttarakhand. In the petition, which was
decided on 28.03.2017, the State of Uttarakhand was a
party, when direction was issued to consider the claim of
the petitioner.
14. In view of the above, this Court is of the view
that the respondents have denied promotion to the
petitioner on 18.01.1995 without any reason. The
petitioner was entitled to promotion on that date.
Accordingly, the writ petition deserves to be allowed.
15. The writ petition is allowed. The impugned
order dated 11.08.2017 is quashed.
16. A writ of mandamus is issued to the State of
Uttarakhand to pass an order giving notional promotion
to the petitioner w.e.f. 18.01.1995, when juniors to him
were promoted as Assistant Engineer. The petitioner has
already been retired. Therefore, he shall be entitled to the
consequential financial benefits.
(Ravindra Maithani, J.)
30.09.2021
Jitendra
