WPSB/182/2021
2022 Latest Caselaw 515 UK

    IN THE HIGH COURT OF UTTARAKHAND
               AT NAINITAL

                     SRI JUSTICE S.K. MISHRA, A.C.J.
                                 AND
                      SRI JUSTICE R.C. KHULBE, J.

WRIT PETITION (S/B) No. 182 OF 2021

Between:

Raj Kumar and others.

...Petitioners and

State of Uttarakhand and others.

...Respondents

Counsel for the petitioners. : Mr. A.S. Rawat, the learned Senior Counsel assisted by Mr. Shobhit Saharia, the learned counsel.

Counsel for the respondent nos. 1 : Mr. J.C. Pande, the learned Standing and 2. Counsel for the State of Uttarakhand.

Counsel for the respondent nos. 3 : Mr. Siddhartha Sah, the learned to 17. counsel.

Date of Hearing and Judgment : 04TH MARCH, 2022

Upon hearing the learned Counsel, the Court made the following

JUDGMENT : (per Sri S.K. Mishra, A.C.J.)

By filing this Writ Petition, the petitioners have

prayed for the following reliefs :-

"a) Issue a writ, order or directions in the nature of certiorari quashing and setting aside the order dated 05.05.2021 bearing no. 1546/1-12 as well as order dated 05-05-2021 bearing even no.60, passed by the Respondent no.2, annexed as Annexure no.1 and 2, respectively, to the Writ Petition.

b) Pass any suitable order or direction of any nature which this Hon'ble Court may deem fit and proper in the present circumstance of the case.

c) Award the cost of the Writ Petition.

d) Issue a writ, order or direction in the nature of the certiorari, quashing order dated 3.06.2021, bearing even number 1661, passed by respondent no.2, annexed as annexure 15 to writ petition."

2. Facts of the case may be stated, briefly, as

follows :-

3. On 10.07.2014, pursuant to the advertisement

dated 03.03.2012, the petitioners were selected on the

post of Forest Rangers through Public Service

Commission and became part of the cadre. On

09.10.2015, a final seniority list of the Forest Rangers

was notified, who were in the cadre of service as on

01.07.2015 i.e. till the end of the selection year 2014-

15, and the names of the petitioners figured from Serial

No. 151 to 199 (it appears at Page No. 46 of the Writ

Petition, as Annexure No. 7). An examination of the said

document reveals that the private respondent nos. 3 to

17 were not a part of the seniority list.

4. On 28.10.2015, the private respondents were

promoted to the post of Forest Rangers, as per the

recommendations of the DPC dated 03.09.2015, in

consultation with the Public Service Commission. Thus,

they took birth in the cadre of the Forest Rangers in the

State of Uttarakhand with effect from 28.10.2015. On

13.10.2016, the final seniority list of the Forest Rangers

in the State was again published. The petitioners were

placed at Serial Nos. 126 to 177, while the private

respondents, who have been promoted on 28.10.2015,

were placed at Serial Nos. 178 to 202, vide Annexure

No. 9. Thereafter, after three successive years, the final

seniority list has been prepared, wherein the petitioners

were treated as senior to the private respondents. The

same is given in a tabulated chart as follows :-

Date of Final Petitioners Respondents Seniority List Serial No. Serial No.

(Page No. 63)

(Page 70)

(Page 78)

5. Thus, from the day the private respondents

were borne in the cadre, i.e. on 28.10.2015, they have

been shown as juniors to the petitioners. On

01.07.2020, a tentative seniority list was promulgated,

wherein the petitioners were placed at Serial Nos. 38 to

89, and the private respondents were placed at Serial

Nos. 90 to 107.

6. Thereafter, objections were invited and, for

the first time, the private respondents raised objections

to the said seniority list. Then, on 15.10.2020, another

seniority list was issued, and the settled seniority list,

which was holding field for about five years, was

disturbed and a cyclic roster was prepared in purported

exercise of sub-rule (3) of Rule 8 of the Uttaranchal

Government Servants Seniority Rules, 2002 (hereinafter

referred to as the "2002 Rules", for brevity). However,

after taking into consideration the objections raised by

the present petitioners, and taking into consideration the

Service Rules and the Government Servants Seniority

Rules, vide order dated 31.10.2020, the list and order

dated 15.10.2020 was cancelled.

7. On 25.11.2020, the private respondents,

aggrieved by the order dated 31.10.2020, preferred Writ

Petition (S/B) No. 361 of 2020 before this Court seeking

its quashing, as well as to treat their promotion with

effect from 01.07.2014, and to fix their seniority by

treating them to be of the selection year 2014, along

with the direct recruits of 2014, in the ratio of 1:1. This

Court, vide order dated 25.11.2020, directed issuance of

notice, and further directed that in the interregnum all

further actions of the respondents shall be subject to the

further orders of this Court. The said Writ Petition is still

pending. In fact, it was pending today and, on the

submission of Mr. Siddhartha Sah, the learned counsel,

the matter was adjourned so that he could take

instructions from his clients.

8. On 05.05.2021, while passing the impugned

order bearing No. 1546(1)/1-12, the order dated

30.10.2020 has been cancelled by the Government of

Uttarakhand. The said order dated 05.05.2021 has been

assailed in this Writ Petition on the following grounds :-

(i) The order dated 05.05.2021, bearing No.

1546(1)/1-12, is a non-speaking order.

(ii) The order dated 05.05.2021 has cancelled an

earlier order dated 31.10.2020, the issue of legality and

propriety of which is subjudice before this Court in Writ

Petition (S/B) No. 361 of 2020.

(iii) The settled seniority list has been disturbed by

the impugned order dated 05.05.2021 without any

rhyme or reason.

(iv) The private respondents were given promotion

vide order dated 28.10.2015, wherein it has been

specifically mentioned that the promotees shall be

considered promoted from the date of their joining,

though they were posted for the vacancies ( र पद) of

the selection year 2014-15. So, giving promotion to

them with retrospective effect from the date of

vacancies, when they have not even borne into the

cadre, is illegal.

9. Therefore, Mr. A.S. Rawat, the learned Senior

Counsel and Mr. Shobhit Saharia, the learned counsel for

the petitioners, would argue that the order dated

05.05.2021, which is impugned in this case, is totally

illegal and requires to be quashed.

10. On the other hand, Mr. Siddhartha Sah, the

learned counsel for the private respondents, taking note

of the expression "selection year 2014-15" (चयन वष 2014-

2015), would argue that the notification itself reveals

that they have been selected for the selection year

2014-15. Therefore, the learned counsel would submit

that the private respondents have rightly been given

promotion with retrospective effect from the date the

posts became vacant. Regarding absence of any

objections to the seniority list for about half a decade,

the learned counsel for the private respondents would

further argue that they were not in know of this seniority

list and, therefore, they could not file any objections.

However, the moment they came to know about the

seniority list, they filed objections, and when they did

not bore any fruits, they filed Writ Petition (S/B) No. 361

of 2021, which is still pending before this Court. The

learned counsel, therefore, prays that there is no merit

in this Writ Petition, and the same should be dismissed.

11. Mr. J.C. Pande, the learned Standing Counsel

for the State of Uttarakhand, drew the attention of this

Court to paragraph no. 6 of the counter-affidavit. He

submits that the private respondents in the present Writ

Petition (who are the petitioners in Writ Petition (S/B)

No. 361 of 2020) were promoted against the vacancies

of the selection year 2014-15. However, their

promotion order dated 28.10.2015, while mentioning the

selection year 2014-15, erroneously mentioned that

their promotion would take place on the date of taking

charge. As a result of the same, their seniority was

erroneously placed against the next year i.e. 2015-16,

as 01.07.2015 was the cut-off date of the selection year.

Thereafter, the matter was not properly represented till

2020, when the private respondents challenged the

tentative seniority as on 01.07.2020. Their

representation was considered and, after examining the

objections and opinion from the Chief Conservator of

Forest, Human Resource Development & Personnel

Management (HRD & PM), the respondent no. 2

disposed of their representation by passing Order No.

588/1-12 (HRD) dated 14.10.2020, whereby suitable

amendments were made in the promotion order so as to

remove any confusion regarding the selection year.

Thereafter, and a fresh tentative seniority list, dated

15.10.2020, was issued and objections were further

invited. However, without disposing of those objections,

those orders were cancelled vide the impugned P.O/428

from the Camp Office without following any office

procedure. Hence, in addition to cancelling the P.O/428,

the respondent no. 2, vide order dated 05.05.2021

bearing even No. 60, rightly passed the amended

promotion order of 30 promotee Range Officers against

the vacancies of the selection year 2014-15 in order to

remove any further confusion whatsoever regarding the

date of arising of vacancies in the selection year

2014-15. However, the applicability of those dates was

considered only for notional purposes and not for any

financial benefits.

12. The learned Standing Counsel for the State

would further argue that the final seniority list of the

year 2020-21 was issued on 03.06.2021, vide even

Order No. 1661, which has presently been challenged by

the petitioners. The final seniority list clearly mentions

that the seniority list will be subject to the final decision

of this Court in Writ Petition (S/B) No. 361 of 2020.

Therefore, he prays that the Writ Petition should be

dismissed.

13. However, in the meantime, further

development took place and, on 28.01.2022, the

Uttarakhand Administration, through its Secretary,

issued a letter to the Principal Conservator of Forest

(HoFF). We find it appropriate to quote paragraph nos.

3 and 4 of the said letter as under :-

3- rRdze esavoxr djk;k tkuk gSfd vkidsmDr la nfHkZ r i= fnukad 21.02.2022 rFkk i= la [;k &1085] fnuka d 21.12.2021 ds ek/;e ls fnuka d 01.07.2021 dh fLFkfr ds vk/kkj ij fuxZ r ou {ks =kf/kdkfj;ks a dh T;s "Brk lw ph ds voyks d u ls ;g Li"V gS fd 'kklukns'k la[;k&1723] fnuka d 05.05.2021 dks rRdky iz Hkko ls fujLr fd;s tkus ds la ca/k esa iz nRr funZs 'kks a ds dz e esa mRrjk[k.M ljdkjh ls od T;s"Brk fu;ekoyh] 2002 ds iz kfo/kkukuq lkj dk;Z okgh djrsgq ;s ] iw oZesaiz nRr uks'kuy inks Uufr dks;Fkkor j[krsgq ;s] ek= vkSipkfjdrko'k ou {ks =kf/kdkfj;ks a dh T;s "Brk lw ph fnuka d 21.12.2021 fuxZ r dh x;h gS A 4- vr% bl la ca /k esa mDr of.kZr rF;ksa rFkk 'kklukns 'k la d 02.11.2021 }kjk uks [;k&1723] fnuka 'kuy inks Uufr iz nku fd;s

tkusla ca /kh oukns 'k la [;k&59] fnukad 05.05.2021 dksrRdky iz Hkko ls fujLr fd;s tkus ds la ca /k es a iznRr funs Z 'kksa ds vkyks d es a ou foHkkx dsi= la [;k&1085] fnukad 21.12.2021 dsek/;e lsfuxZ r ou {ks =kf/kdkfj;ksa dh T;s"Brk lw ph dks mRrjk[k.M ljdkjh ls od T;s "Brk fu;ekoyh] 2002 es afofgr iz kfo/kkuks adsvkyks d esala'kks f/kr djrsgq ;sla 'kks f/kr T;s"Brk lw ph dsvuq lkj p;u o"kZ2021-22 es a lgk;d ou la j{kd ds31 fjDr inks adslkis {k mRrjk[k.M yks d ls ok vk;ks x lijke'kZ p;uks Uufr ¼izfdz;k½ fu;ekoyh] 2003 es a fofgr izkfo/kkukuq lkj ¼fjfDr;ksadh la [;k dk 1.5 xq uk fdUrqde lsde 10½ la 'kks f/kr ik=rk lw ph 'kklu dks07 fnuks adsHkhrj miyC/k djkusdk d"V djs a A (underlined to emphasize)

14. Thus, it is clear that one part of the prayer,

i.e. quashing of the order bearing No. 1546(1)/1-12

dated 05.05.2021, has become infructuous, as the

Government has already withdrawn the said order.

15. What remains to be decided at present is the

legality of the Order No. 60 dated 05.05.2021, and the

consequential order dated 03.06.2021 bearing No.

1661/1-12 (HRD) i.e. Annexure No. 15.

16. The Forest Order No. 1546/1-12 dated

05.05.2021, i.e. Annexure No. 1, is a single line order,

whereby the Order No. P.O./428 dated 31.10.2020, was

cancelled. It is a non-speaking order, and no reasons

have been given as to why the order dated 31.10.2020

was recalled.

17. It may be noted here that by the order dated

31.10.2020, the earlier order No. 588/t-12 (HRD) dated

14.10.2020 was cancelled (in fact the aforesaid order

No. 588/t-12 (HRD) is dated 15.10.2020, but there is a

typographical error in the document, which is of no

consequence). By virtue of order No. 588/t-12 (HRD)

dated 14.10.2020, the private respondents were given

promotion with retrospective effect. After considering

the matter, the said order No. 588/t-12 (HRD), was

recalled by the authorities, and on 05.05.2021 that

order of recalling the retrospective promotion was

recalled. The impugned order does not justify why such

an order should again be recalled, and it is a non-

speaking order.

18. The second most important aspect in the case

is that the order dated 31.10.2020 is the subject matter

of Writ Petition (S/B) No. 361 of 2020. In fact, the

Division Bench of this Court has, as per the order dated

25.11.2020, directed that in the interregnum all further

actions of the respondents shall be subject to further

orders of this Court. So, when a matter was under

challenge, and this Court was seized of the matter,

without informing this Court, or without making any

submission regarding the said order, it was not proper

on the part of the State Administration to recall that

order, and that too without any reasons.

19. The learned counsel for the private

respondents would argue that the order dated

28.10.2016 giving them promotion with retrospective

effect is passed in view of the fact that they were

selected for the selection year 2014-15. However, a

careful reading of the order dated 28.10.2016 (Annexure

No. 8) reveals that they were given promotion against

the vacant posts of selection year 2014-15 from the date

of their joining, and they were to be posted on their

earlier place of posting at that time. So, there appears

to be no ambiguity in this order, and the petitioners

were to be considered promoted from the date of their

joining.

20. In the case of Uttaranchal Forest Ranger's

Assn. (Direct Recruit) and others v. State of U.P.

and others; (2006) 10 SCC 346, the Hon'ble Supreme

Court has considered this aspect, and has held that the

seniority has to be decided on the basis of Rules in force

on the date of appointment. No retrospective promotion

or seniority can be granted from a date when an

employee has not even borne in the cadre. A similar

view was taken by the Hon'ble Supreme Court in the

case of K.C. Joshi & others v. Union of India; 1992

Suppl (1) SCC 272.

21. In the case of State of Uttaranchal and

another v. Dinesh Kumar Sharma; (2007) 1 SCC

683, the Hon'ble Supreme Court has further considered

the question that the year, in which the vacancy

accrues, can have any relevance for the purpose of

determining the seniority irrespective of the fact when

the person is recruited, and answered it in negative.

The Hon'ble Supreme Court took note of the

respondent's contention that, since the vacancy arose in

the year 1995-96, he should be given promotion and

seniority from that year, and not from 1999, when his

actual appointment letter was issued by the appellant.

The Supreme Court held that this cannot be allowed, as

no retrospective effect can be given to an order of

appointment order under the Rules, nor is such a

contention reasonable to normal parlance. This view

was taken by the Hon'ble Supreme Court in the case

of Jagdish Ch. Patnaik & Ors. v. State of Orissa &

Ors.; 1998 (4) SCC 456.

22. The Hon'ble Supreme Court in the recently

decided case of The State of Bihar & Ors. v. Arbind

Jee (Civil Appeal No. 3767 of 2010, decided on

28.09.2021) has held that retrospective seniority cannot

be granted to an employee from a date when the

employee was not borne in the cadre. Seniority

amongst members of the same grade has to be counted

from the date of initial entry into the grade. The Hon'ble

Supreme Court relied upon several judgments, including

the Constitution Bench judgment of the Supreme Court

in the case of Direct Recruit Class II Engineering

Officers' Association v. State of Maharashtra;

(1990) 2 SCC 715. The same principle was reiterated

in State of Bihar v. Akhouri Sachindra Nath; 1991

Supp. (1) SCC 334 and State of Uttaranchal and

another v. Dinesh Kumar Sharma (supra).

23. Thus, it is clear that when the private

respondents were promoted, though the vacancies arose

in the year 2014, the petitioners were already in service

for about more than one year, and the act of the State

Government giving retrospective promotion to the

private respondents, when they have not even borne in

the cadre, was clearly illegal. Therefore, it was

cancelled, or withdrawn, by the order dated 31.10.2020.

In such a situation, recalling of that order by the State is

against the tenor of law, and that too when the matter is

subjudice before this Court. It, therefore, leads us to

the conclusion that we have to interfere in the matter

and quash the impugned order.

24. The another aspect, which requires our

consideration, is the applicability of Rule 8 of the 2002

Rules, especially sub-rule (3). For appreciation, we

consider it appropriate to quote the relevant portion as

under :-

8. Seniority where appointments by promotion only from direct recruitment.

(1) xxxxxx

(2) xxxxxx

(3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotes vis-à-vis direct recruits shall be determined in a cyclic order the first being a promotee as for a may be, in accordance with the quota prescribed for the two sources.

(underlined to emphasize)

25. This aforesaid provision was considered by the

Hon'ble Supreme Court in the case of State of

Uttaranchal and another v. Dinesh Kumar Sharma

(supra). At paragraph no. 28, the Hon'ble Supreme

Court has held that it is clear from the above that a

person appointed on promotion shall not get seniority of

any earlier year, but shall get the seniority of the year in

which his/her appointment is made. The Supreme Court

further held that, therefore, in the present fact situation

the respondent cannot claim promotion from the date of

occurrence of the vacancy which is 1995-96, but can

only get promotion and seniority from the time he has

been substantively appointed i.e. from 1999. Likewise,

the seniority also will be counted against the

promotion/appointment in the cadre from the date of

issuance of order of substantive appointment in the said

cadre i.e. from 19.11.1999.

26. Thus, the aforesaid judgment sums up the

answer to the issues posed in this case. Moreover, it is

our opinion that even if for the sake of consideration we

consider that the private respondents were selected for

the selection year 2014-15, then also sub-rule (3) of

Rule 8 of the 2002 Rules will not be applicable, as it is

provided that where appointments are made both by

promotion and direct recruitment on the result of any

one selection, and it is an admitted fact that the

petitioners were selected in the year 2014 through direct

recruitment, and the private respondents were promoted

in the year 2015 in a different departmental promotion

exercise. So, sub-rule (3) of Rule 8 of the 2002 Rules is

not applicable to the present case to determine the

inter-se seniority between the petitioners and the

private respondents.

27. Annexure No. 15 is the seniority list prepared

as per the tentative list dated 01.07.2020, which was

modified in purported exercise of sub-rule (3) of Rule 8

of the 2002 Rules, though it has been reflected that the

same has been made under Rule 9(4) of the 2002 Rules.

Since the very basis, for which the tentative seniority list

was prepared, has already been held to be incorrect,

and it is the opinion of this Court that the petitioners are

senior to the private respondents, as when the

petitioners were promoted to the cadre of Forest

Rangers, the private respondents were not even borne in

the cadre.

28. In that view of the matter, we find sufficient

merit in this Writ Petition.

29. But, before allowing the Writ Petition, we

further want to make the observation that when on

05.05.2021, the Principal Conservator of Forest (HoFF)

issued two orders i.e. Annexure Nos. 1 and 2, and then

after realizing his mistake recalled Annexure No. 2, there

appears to be no reason to allow Annexure No. 1 to

continue. In fact, it will only contribute to further chaos

and confusion among the rank and cadre of the

petitioners and the private respondents.

30. In that view of the matter, the present Writ

Petition is allowed. The impugned order dated

05.05.2021 bearing even No. 60, and the impugned

order dated 03.06.2021 bearing even No. 1661, are,

hereby, quashed. It is further directed that the seniority

shall be considered by the authorities as per the

seniority list dated 13.08.2019, wherein the petitioners

were placed at Serial Nos. 50 to 101 and the private

respondents were placed at Serial Nos. 102 to 121.

________________ S.K. MISHRA, A.C.J.

____________ R.C. KHULBE, J.

Dt: 04th March, 2022 Rahul