Uttarakhand High Court
WPSS/826/2020 on 17 May, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 17TH DAY OF MAY, 2022
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (S/S) No. 825 of 2020
BETWEEN:
Umesh Chandra Upreti. ...Petitioner
AND:
State of Uttarakhand & others. ...Respondents
With
Writ Petition (S/S) No. 826 of 2020
Writ Petition (S/S) No. 856 of 2020
Writ Petition (S/S) No. 1184 of 2020
Writ Petition (S/S) No. 997 of 2021
Writ Petition (S/S) No. 1050 of 2021
(Mr. Lalit Samant & Mr. K.K. Harbola, Advocates for the
petitioners and Ms. Anjali Bhargava, Additional Chief Standing
Counsel for the State of Uttarakhand)
JUDGMENT
Heard learned counsel for the parties
2. Since common questions of law and fact
are involved in these writ petitions, therefore are
being taken up together and are being decided by
this common judgment. However, for the sake of
brevity, facts of WPSS No. 825 of 2020 alone are
being considered.
3. Petitioner was appointed as Assistant
Teacher, Government Primary School in the year
1996. He was subsequently promoted as Assistant
Teacher, Government Junior High School in the year
2010. Under the relevant Recruitment Rules, framed
in 2014, petitioner was eligible for promotion to the
post of Assistant Teacher, L.T. Grade under 10%
departmental quota. However, by virtue of an
amendment made in the Rules in 2019, petitioner
became ineligible.
4. Respondent no. 3 had invited applications
for promotion under 10% departmental quota, by an
advertisement dated 20.06.2019. Petitioner
participated in the selection held pursuant to said
advertisement, however, 2014 Rules were amended
in 2019 after initiation of promotion exercise and
requirement of possessing B.Ed./L.T. qualification
was introduced for promotion under 10%
departmental quota.
5. Since petitioner does not possess
B.Ed./L.T. qualification, therefore, he approached this
Court contending that Rules framed subsequent to
initiation of selection process, cannot govern ongoing
selection process. The reliefs claimed in the writ
petition are as follows:-
"i) Issue a writ order or direction in
the nature of certiorari to quash impugned
advertisement dated 17-7-2020 to the extent
applicability of amending Rules 2019 so far it
relates to the petitioner and quash any other
consequential order if any.
ii) Issue a writ order or direction in
the nature of mandamus directing to the
respondents to complete selection process as
per advertisement dated 20-6-2019 under the
Rules 2014 so far it relates to the petitioner."
6. A co-ordinate Bench of this Court permitted
the petitioner to appear in counselling with the
condition that the result of counselling shall be kept
in a sealed cover, which shall not be opened without
leave of this Court.
7. Mr. Lalit Samant, learned counsel for the
petitioners submits that it is settled law that rules of
the game cannot be changed mid-way and the
selection process has to be completed as per the
service rules, which were applicable on the date of
commencement of promotion exercise. He, however,
submits that the promotion exercise was commenced
on 20.06.2019 when advertisement was issued by
respondent no.3; while, the requirement of having
B.Ed./L.T. was introduced by amending the Rules in
the month of December, 2019. Thus, according to
him, the amended Service Rules cannot be made
applicable to the promotion exercise, which
commenced in the month of June, 2019. He,
however, submits that a Division Bench of this Court
has dealt with identical question in Writ Petition (S/B)
No. 139 of 2021. Perusal of the said judgment
reveals that the question before Division Bench was
whether the amendment made in the Rules
subsequent to commencement of selection process
can be pressed into service for treating a person
ineligible for promotion, who was otherwise eligible.
Paragraph nos. 5 & 6 of the said judgment are
reproduced below:-
"5. Thus, it is contended by the learned
counsel for the petitioner that when the
petitioners entered in service, they were guided
by 2014 Rule. Even when the department took
a decision to give promotion, an advertisement
was issued. They were qualified. But by virtue
of the amendment dated 23.12.2019 which is
prospective in nature they become ineligible for
the post
6. We are of the opinion that the Service
(Amendment) Rule 2014 is not retrospective in
effect and the rules are supposed to come into
force at once i.e. on 23.12.2019, it cannot be
made applicable to the petitioners while
considering their case for promotion. It is also
brought to our notice that pursuant to the order
passed by this Court on 22.03.2021/
02.08.2021, the petitioners were called for
counselling for the post of Assistant Teacher
L.T. (Physical Education) and as per the
submission of the learned counsel for the
petitioners they have been selected but
promotional post have not been allotted
because of the pendency of the writ application.
However, the learned Standing Counsel do not
have instructions regarding the same."
8. I am in respectful agreement with the view
taken by Division Bench of this Court in the aforesaid
judgment. The amendment made in Service Rules
notified on 23.12.2019, cannot be made applicable to
the promotion exercise, which commenced in the
month of June, 2019.
9. In such view of the matter, writ petition is
also decided in terms of judgment dated 21.03.2022
passed in Writ Petition (S/B) No. 139 of 2021. Since
result of petitioners is kept in a sealed cover,
pursuant to order of this Court, therefore, the
concerned respondent is directed to declare the
petitioners' result and if found suitable, Competent
Authority shall give promotion to the petitioners, as
per Rules, which prevailed before 23.12.2019.
(MANOJ KUMAR TIWARI, J.)
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