Uttarakhand High Court
WPSS/1927/2018 on 13 May, 2022
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WPSS No. 1927 of 2018
Hon'ble Manoj Kumar Tiwari, J.
Mr. T.A. Khan, Senior Advocate,
assisted by Mr. Vinay Bhatt, Advocate for
the petitioner.
Mr. N.P. Shah, Standing Counsel for
the State of Uttarakhand.
Heard learned counsel for the
parties.
Petitioner was appointed as
Assistant Teacher, C.T. Grade in 1987
and in the year 1992, his services were
merged in L.T. Grade. Presently, he is
serving as Lecturer in a Government
School in State of Uttarakhand.
According to him, a junior person,
namely, Krishna Kumar Sharma was
promoted as Lecturer in State of Uttar
Pradesh in the year 1997; while,
petitioner was given adhoc promotion as
Lecturer in Uttarakhand in 2002, which
was regularised in 2010, therefore, he
should be given promotion from 1997,
when junior to him was promoted.
Petitioner earlier filed Writ Petition
(S/S) No. 1324 of 2016, which was
disposed of by a Co-ordinate Bench of
this Court vide order dated 15.03.2017,
by permitting petitioner to make
representation. Petitioner made
representation, which was dismissed by
Director, Secondary Education,
Uttarakhand vide order dated
03.10.2017. Against the said order,
petitioner has filed this writ petition,
seeking the following reliefs:
"I. To issue a writ, order or direction in
the nature of mandamus commanding the
respondents to promote the petitioners with
effects from 22-10-1997 to the post of Lecturer
in mathematics with all consequential benefits
including arrears enhanced salary and they may
be directed to refix the name of the petitioner
on appropriate place in the seniority list of
Lecturers cadre along with the lecturers who
were promoted on 22-10-1997.
II. to issue a writ, order or direction in the
nature of mandamus commanding the
respondents to promote the petitioner to the
post of Head Master in the High School and
thereafter to the post of principal of
Intermediate College from the same date as it
has been done in the case of the persons Junior
to the petitioner.
III. To issue a writ, order or direction in
the nature of certiorari quashing the order
dated 03-10-2017, passed by the respondent
no. 2 (annexure no. 2 to the writ petition)."
From the relief clause of the writ
petition, it is apparent that petitioner is
claiming promotion from 1997. The
person, who allegedly was promoted in
1997 is not before this Court, State of
Uttar Pradesh and Director, School
Education, U.P., who can promote
petitioner retrospectively from 1997 are
also not party to the writ petition.
Hon'ble Supreme Court in the case
of State of Uttarakhand Vs. Umakant
Joshi, reported in 2012 (1) U.D., 583 has
held as under:
"11. We have considered the respective
submissions. It is not in dispute that at the time
of promotion of Class-II officers including Shri
R.K. Khare to Class-I posts with effect from
16.11.1989 by the Government of Uttar
Pradesh, the case of respondent No.1 was not
considered because of the adverse remarks
recorded in his Annual Confidential Report and
the punishment imposed vide order dated
23.1.1999. Once the order of punishment was
set aside, respondent No.1 became entitled to
be considered for promotion to Class-I post with
effect from 16.11.1989. That exercise could
have been undertaken only by the Government
of Uttar Pradesh and not by the State of
Uttaranchal (now the State of Uttarakhand),
which was formed on 9.11.2000. Therefore, the
High Court of Uttarakhand, which too came into
existence with effect from 9.11.2000 did not
have the jurisdiction to entertain the writ
petition filed by respondent No.1 for issue of a
mandamus to the State Government to
promote him to Class-I post with effect from
16.11.1989, more so because the issues raised
in the writ petition involved examination of the
legality of the decision taken by the
Government of Uttar Pradesh to promote Shri
R.K. Khare with effect from 16.11.1989 and
other officers, who were promoted to Class-I
post vide order dated 22.1.2001 with
retrospective effect. It appears to us that the
counsel, who appeared on behalf of the State of
Uttarakhand and the Director of Industries did
not draw the attention of the High Court that it
was not competent to issue direction for
promotion of respondent No.1 with effect from
a date prior to formation of the new State, and
that too, without hearing the State of Uttar
Pradesh and this is the reason why the High
Court did not examine the issue of its
jurisdiction to entertain the prayer made by
respondent No.1."
In view of the law laid down by
Hon'ble Supreme Court in the aforesaid
judgment, the reliefs, as claimed in the
writ petition, cannot be granted by this
Court.
Accordingly, the writ petition fails
and is dismissed.
(Manoj Kumar Tiwari, J.)
13.05.2022
Arpan
