SPA/682/2018
2022 Latest Caselaw 2156 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL
          HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                             AND
                HON'BLE SRI JUSTICE R.C. KHULBE

                              19TH JULY, 2022

             SPECIAL APPEAL No. 682 OF 2018

Between:

Krishna Kuwar Singh Dewari and others.
                                                              ...Appellants
and

Kripal Singh and others.
                                                           ...Respondents

Counsel for the appellants. : Mr. Bhagwat Mehra, the learned counsel.

Counsel for the respondent nos. 1 : Mr. Abhijay Negi, the learned counsel. to 4.

Counsel for the respondent no. 5. : Mr. K.N. Joshi, the learned Deputy Advocate General for the State of Uttarakhand.

Counsel for the respondent no. 6. : Mr. V.K. Kapruwan, the learned counsel.

JUDGMENT : (per Sri Vipin Sanghi, C.J.)

The present Special Appeal has been preferred

by the appellants after obtaining leave, since they were

not parties to the writ proceedings, wherein the

impugned order was passed by the learned Single Judge

on 11.08.2017.

2. The writ petitioners, who are respondent nos.

1 to 4 in the present Special Appeal, had preferred Writ

Petition (S/S) No. 1918 of 2016 assailing the order dated 09.09.2016 passed by the respondent/

authorities, whereby the respondent nos. 7 and 8 in the

present Special Appeal were promoted to the post of

Assistant Accounts Manager in the Uttarakhand Forest

Development Corporation. The learned Single Judge

disposed of the said Writ Petition by a short order, which

we may reproduce hereunder :-

"In both these writ petitions, the petitioners before this Court are working on the post of accountant in Uttarakhand Forest Development Corporation and seek promotion to the next higher post i.e. Assistant Manager Accounts. One of the mandatory conditions for considering for promotion to the next higher post of Assistant Manager Accounts is that an incumbent must have put in substantive service on the post of accountant for atleast seven years, a condition which is not fulfilled by some of the petitioners. Their case is that their promotion to the account itself was delayed at the hands of the respondents and in many cases the promotions were done after a gap of 14 to 15 years.

2. The petitioners have relied upon Rule 4 of the Uttarakhand Government Servant (Relaxation in Qualifying Service for Promotion) Rules, 2010, where the Managing Director has got powers to relax the mandatory condition of 7 years provided no other eligible candidates are available, a fact which is admitted by learned counsel for the Uttarakhand Forest Development Corporation.

3. In view thereof, both the writ petitions stand disposed with the direction to the respondents to first consider the case of such candidates who already fulfill the mandatory requirement for promotion and thereafter, if posts remain vacant, the case of other candidates shall be considered for promotion by giving relaxation as per the Rules."

(emphasis supplied)

3. The appellants have assailed the impugned

order on the ground that the learned Single Judge

wrongly proceeded on the premise that, for promotion to

the post of Assistant Accounts Manager, the persons

working in the feeder post of Accountant should have

substantive service of atleast 07 years, as a condition of

eligibility. According to the appellants, there is no

minimum qualifying service required by an Accountant

for becoming eligible for consideration for promotion to

the post of Assistant Accounts Manager in the

respondent Corporation.

4. The submission of the learned counsel for the

appellants is that, prior to the bifurcation of the State of

Uttarakhand from the State of Uttar Pradesh, in the

Uttar Pradesh Forest Development Corporation - from

which the respondent Corporation has been carved out,

the service conditions were governed by Regulations

framed in the year 1985. In the said Corporation, in the

promotion Rules - for promotion to the post of

Accountant from Assistant Accountant; from Accountant

to Senior Accountant and; from Senior Accountant to

Senior Auditor, the minimum required service of 07

years, in the feeder cadre was prescribed. However,

upon the creation of the State of Uttarakhand, the

respondent/ Corporation was created in the year 2001.

According to the appellants, after 2001, the 1985

Regulations of the Uttar Pradesh Forest Development

Corporation were no longer applicable. The appellants

further submit that earlier there were only 08 posts of

Assistant Accounts Manager in the respondent

Corporation, which were raised to 20 in the year 2016.

5. The learned counsel for the appellants further

submits that, on 06.06.2007, a completely new cadre of

officers was created in the respondent/ Corporation. In

respect of the Accounts Department, there were 29

posts of Accountants; 08 posts of Assistant Accounts

Manager; 05 posts of Accounts Manager; 02 posts of

Senior Accounts Manager; 01 post of Chief Audit

Manager; and 01 post of Financial Advisor/ Chief

Financial Controller, which were created. In respect of

the post of Assistant Accounts Manager, it was stated

that, out of 08 posts, 01 post would be that of Assistant

Audit Officer, and that all the posts would be filled by

way of promotion from the cadre of Accountants.

However, the said communication did not indicate as to

what were the promotion Rules applicable for promotion.

6. On the aforesaid premise, the submission of

the learned counsel for the appellants is that, for

promotion from the post of Accountant to the post of

Assistant Accounts Manager, there is no stipulation with

regard to experience, or minimum service required in

the feeder grade.

7. On the other hand, the learned counsel for the

respondent/ Corporation submits that the aforesaid

contention of the learned counsel for the appellants is

not correct. He has drawn our attention to the stand

taken by the respondent/ Corporation in the counter

affidavit filed in the Writ Petition and, in particular, to

paragraph nos. 3(ii) and 3(iv), which reads as follows :-

3(ii). That before re-structuring of cadre by the G.O.

dated 24.08.2016, there was only 8 sanctioned post of Assistant Account Manager in the Corporation and the same was earlier known as Sr. Account Manager but after re-structuring, additional 12 posts of Assistant Account Manager were created. All these posts are required to be filled or supplied by promotion and direct recruitment is not permissible.

3(iv). That on 24.08.2016, when cadre was re-

structured, there were 12 vacancies on the newly created posts of Assistant Account Manager which were to be filled up by the feeder cadre of Accountant. In the top 18 of the seniority list of Accountants there was only one person who fulfilled the condition of 7 years service eligibility criteria for promotion. Thus there was a shortfall of eligible persons in the shortlist for zone of consideration for promotion. The matter was consequently placed before the Governing Body of the corporation and the Governing Body of the corporation passed a resolution to grant the promotion as per seniority relaxing the condition regarding the qualifying service. The said resolution was passed in its 57th meeting dated 29.08.2016.

The that it may be stated here that the petitioners belong to reserve category who were appointed as Assistant Accountant on 07.03.1987, 03.09.1990, 20.07.1990 and 10.05.1990 respectively, subsequently they got accelerated promotion on the post of Accountant against the reserve vacancies. The private respondents belong to general category, were appointed on 24.04.1980 on the post of Assistant Accountant respectively but were promoted later in the point of time. However upon their promotion, they regain seniority by application of the catchup rules thus in the seniority list of accountant, private respondents are above the petitioners."

8. Thus, the stand of the respondent/

Corporation is that, before restructuring of the cadre by

Government Order dated 24.08.2016, by which the

number of sanctioned posts for the post of Assistant

Accounts Manager were increased from 08 to 20, the

said post was earlier known as Senior Accounts

Manager. However, upon restructuring, additional posts

of Assistant Accounts Manager were created, and these

posts are required to be filled or supplied by promotion,

and direct recruitment is not permissible.

9. Learned counsel for the writ petitioners/

respondent nos. 1 to 4 has also opposed the present

appeal. Learned counsel has drawn our attention to,

firstly, Section 67, and also to Section 74, of the Uttar

Pradesh Reorganisation Act, 2000, which led to the

creation of the State of Uttarakhand. Learned counsel

submits that the respondent Corporation is a

Corporation carved out and created from the Uttar

Pradesh Forest Development Corporation, and the

respondent Corporation has continued to function and

operate in the State of Uttarakhand. By placing reliance

on Section 74 of the aforesaid Act, learned counsel

submits that the conditions of service, of persons

serving in connection with the affairs of the State, could

not be altered to their disadvantage, and they continued

to operate as they were operating prior to the

bifurcation of the State. He submits that no previous

approval of the Central Government was obtained so as

to remove the requirement of 07 years' service in the

feeder cadre of Accountants, for consideration for

promotion as Assistant Accounts Manager. He submits

that the writ petitioners had much longer tenure of

service in the feeder grade, and any relaxation of the

said requirement would have worked to their

disadvantage, which could not have been done.

10. It has also been informed to us by the learned

counsel for the appellants that, in the year 2022 itself,

fresh promotion Rules have been framed, and for

promotion to the post of Assistant Accounts Manager, 03

years' service in the feeder grade, and overall 15 years'

service, is the eligibility norm.

11. We have considered the submissions of the

learned counsels.

12. In our view, there is no merit in the

submissions of the learned counsel for the appellants

that there was no requirement of any minimum

qualifying service in the feeder cadre of Accountants for

consideration for promotion to the next higher post of

Assistant Accounts Manager. This is for the reason that

even before the bifurcation of the State, and creation of

the respondent/ Corporation, under the Uttar Pradesh

Forest Corporation, admittedly, by virtue of the

Regulations framed in the year 1985, 07 years'

minimum qualifying service, in the feeder cadre of

Accountants was essential for consideration for

promotion to the next higher post of Senior Accountant.

13. The respondent/ Corporation has stated in its

counter affidavit, filed in the Writ Petition, that the said

post has been renamed as Assistant Accounts Manager.

Even otherwise, it does not stand to reason that, for

gaining eligibility for promotion from one post to

another, there would be no requirement of minimum

qualifying service in the feeder cadre. Merely because

the order sanctioning the posts of Assistant Accounts

Manager, did not indicate the promotion Rules, it does

not follow that there was no Rule framed or applicable

for promotion, requiring minimum service in the feeder

cadre.

14. We, therefore, do not find any merit in the

present Special Appeal and the same is, accordingly,

dismissed. The respondent/ Corporation should proceed

to fill up the vacancies in the cadre of Assistant Accounts

Manager without any further delay.

15. In sequel thereto, all pending applications also

stand disposed of.

________________ VIPIN SANGHI, C.J.

_____________ R.C. KHULBE, J.

Dt: 19th July, 2022 Rahul