IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 202 of 2007 (S/B) Navin Chandra. .……… Petitioner Versus State of Uttarakhand & others. .………. Respondents Mr. Manoj Tiwari, Senior Advocate with Mr. Alok Mehra, Advocate for the petitioner. Mr. H.M. Raturi, Standing Counsel for respondents Nos. 1 & 2. JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble B.C. Kandpal, J. J.S. KHEHAR, C. J. (Oral) Petitioner, Navin Chandra, belongs to the Scheduled Caste category. He applied for appointment to the post of Assistant Engineer in the Rural Engineering Service Department. Consequent upon his selection by the Uttar Pradesh Public Service Commission, he was appointed against the post of Assistant Engineer on 01.05.1989. Thereupon, in the seniority list of the cadre of Assistant Engineers, published on 04.01.1995, his name was depicted at Serial No. 218. 2. Onward promotion from the post of Assistant Engineer is to the post of Executive Engineer. Although the prescribed eligibility conditions, under the existing statutory provisions for promotion to the post of Executive Engineer, required a substantively appointed Assistant Engineer to have at least 7 years’ completed service on the first day of the year in which promotion to the post of Executive Engineer was to be effected, yet the aforesaid statutory rule came to be amended by the Uttar Pradesh Rural Engineering (Group ‘A’) Service (Third Amendment) Rules, 1995, which were notified on 12.01.1995. The amended provision, regulating promotion to the post of Executive Engineer, is being extracted hereunder: “(1) Executive Engineer. – By promotion from amongst substantively appointed Assistant Engineers who have completed seven years service as such, on the first day of the year of recruitment: Provided that if suitable eligible candidates are not available for promotion the field of eligibility may be extended to include 2 substantively appointed Assistant Engineers who have completed four years service, as such on the first day of the year of recruitment.” 3. The respondents constituted a Departmental Promotion Committee to consider eligible Assistant Engineers, belonging to the Scheduled Caste category, for onward promotion to the post of Executive Engineer on 18.01.1995. In the deliberations conducted by the Departmental Promotion Committee on 18.01.1995, six Assistant Engineers, belonging to the Scheduled Caste category, were found suitable. Out of the aforesaid six, five (being respondents Nos. 3 to 7) were junior to the petitioner in the cadre of Assistant Engineers. Whilst the name of the petitioner figured at Serial No. 218 in the seniority list of Assistant Engineers, the names of respondents Nos. 3 to 7 figured between Serial Nos. 219 to 230 of the seniority list. 4. When the petitioner was not promoted to the rank of Executive Engineer, but his juniors were granted promotion, he addressed a number of representations to the respondents. Finding no relief forthcoming, the petitioner approached this Court by filing Writ Petition No. 101 of 2004 (S/B). The aforesaid Writ Petition came to be disposed of by this Court on account of the statement made by the learned counsel for the petitioner, that during the pendency of the Writ Petition, the petitioner had been promoted to the rank of Executive Engineer. In view of the statement made by the petitioner, the aforesaid Writ Petition came to be disposed of with a rider that the matter of seniority of the petitioner would be determined in accordance with the seniority rules. The petitioner then, filed a Review Application No. 66 of 2006. The aforesaid Review Application was disposed of with a direction to the respondents not to hold a meeting of the Departmental Promotion Committee for effecting promotions from the rank of Assistant Engineers to the rank of Executive Engineers, till the finalisation of the issue of seniority of the petitioner. In the order dated 17.05.2006, disposing of the Review Application filed by the petitioner, it was directed that on the petitioner being found suitable for promotion in the year 1995, he would be given notional promotion for purposes of counting the length of his service for promotion to the next higher post. It is, however, not a matter of dispute, that a number of petitions for Special Leave to Appeal were filed before the Supreme Court, which, after the 3 grant of leave, were disposed of by setting aside the judgment rendered by this Court while disposing of Writ Petition No. 101 of 2004 (S/B). It is, therefore, that the matter is being heard by us, as revised Writ Petition No. 202 of 2007 (S/B). 5. We have heard learned counsel for respondents Nos. 1 & 2, who has invited our pointed attention to the supplementary counter affidavit filed on behalf of respondent No. 1 and, more particularly, to paragraph 3(iv) (a) & (b) thereof, so as to contend that the petitioner was not eligible to be considered by the Departmental Promotion Committee for promotion to the post of Executive Engineer because he did not have 7 years’ service on the 1st day of 1995, and as such, was ineligible for consideration for promotion to the post of Executive Engineer. Additionally it is submitted, that when the claim of the petitioner was considered by the Departmental Promotion Committee on 18.01.1995, there were two adverse Annual Confidential Reports standing against him for the years 1991-1992 and 1992-1993, and that, on considering the claim of the petitioner on the basis of the aforesaid adverse reports, the Departmental Promotion Committee had found the petitioner unsuitable for promotion to the rank of Executive Engineer. 6. In sum and substance, therefore, the claim of the petitioner for promotion to the rank of Executive Engineer with effect from the date his juniors, i.e. respondents Nos. 3 to 7, were promoted as such, has to be considered in the light of the aforementioned two objections raised at the hands of the learned counsel for respondents Nos. 1 & 2. 7. Insofar as the first contention is concerned, wherein eligibility of the petitioner for promotion to the rank of Executive Engineer, itself, has been assailed at the hands of the learned counsel for respondents Nos. 1& 2; it is necessary to notice that prior to the holding of the meeting of the Departmental Promotion Committee on 18.01.1995, the statutory rules, laying down the conditions of eligibility for promotion to the post of Executive Engineer, were amended. The instant amendment was notified on 12.01.1995. The amended provision has been extracted in one of the foregoing paragraphs. Additionally, it is the case of the learned counsel for the petitioner that no Assistant Engineer, belonging to the Scheduled Caste category, had completed 7 years of service on the date of the 4 aforesaid consideration by the Departmental Promotion Committee (i.e. 18.01.1995), and as such, in terms of the amended provision, relaxation was liable to be granted to the petitioner so as to include his name for consideration, as he had more than 4 years of service. It is also pointed out, that respondents Nos. 3 to 6 were appointed as Assistant Engineers along with the petitioner and respondent No. 7 was appointed on the basis of a subsequent selection. As such, if respondents Nos. 3 to 6 were to be treated as eligible (having been appointed as Assistant Engineers on the same day when the petitioner was appointed as such), the petitioner also was liable to be treated as eligible. Furthermore, if respondent No. 7 was eligible (having been appointed as Assistant Engineer after the date when the petitioner was appointed as such), the petitioner was also liable to be treated as eligible. 8. Having considered the rival submissions advanced by the learned counsel for the parties, we are satisfied that there can be no doubt whatsoever that the petitioner was eligible for consideration for promotion to the post of Executive Engineer in view of the amended provision notified on 12.01.1995, since the aforesaid amendment was carried out before the convening of the meeting of the Departmental Promotion Committee on 18.01.1995. Additionally, since persons appointed along with the petitioner (against the post of Assistant Engineers) were not only treated as eligible, but on consideration, were allowed promotion to the post of Executive Engineer, there is no justification whatsoever at the hands of the respondents to assail the eligibility of the petitioner, for promotion to the post of Executive Engineer. Moreover, a person (respondent No. 7) who was appointed as Assistant Engineer even after the petitioner, has been treated as eligible. As such, we are satisfied that there is no justifiable reason to deny the petitioner’s eligibility for promotion to the post of Executive Engineer on the basis of completed years of service. We, therefore, hereby hold, that the petitioner was eligible for consideration for promotion when the meeting of the Departmental Promotion Committee was held on 18.01.1995, and when persons junior to the petitioner were considered and found suitable for promotion. 9. Insofar as the second contention advanced by the learned counsel for respondents Nos. 1 & 2 is concerned, it is apparent that the petitioner was found 5 unsuitable for promotion to the post of Executive Engineer on the basis of adverse Annual Confidential Reports for the years 1991-1992 and 1992-1993. During the course of hearing, learned counsel for the petitioner invited our attention to Annexures RA4 and RA5, dated 27.02.1996 and 01.03.1996 respectively, passed by the Secretary to Government, Department of Rural Engineering of the State of Uttar Pradesh. In these orders, it stands confirmed, that as against the aforesaid two adverse entries, the petitioner had made representations, and on due consideration of his representations, both the adverse entries were expunged. Learned counsel for the respondents does not contest this factual position asserted by the learned counsel for the petitioner, insofar as the expunction of the adverse entries in the Annual Confidential Reports, for the years 1991-1992 and 1992- 1993, are concerned. 10. In view of the above, we are satisfied that the consideration of the claim of the petitioner for promotion to the post of Executive Engineer by the Departmental Promotion Committee on 18.01.1995 is liable to be set aside. Our instant conclusion is based on the fact that the claim of the petitioner was considered and rejected on the basis of adverse entries in his Annual Confidential Reports, which were expunged. It is not as if we are finding any fault with the aforesaid consideration, this is because the aforesaid adverse entries were expunged by orders issued in the year 1996, whereas, the claim of the petitioner was considered by the Departmental Promotion Committee before the said entries were expunged. We, accordingly, set aside the consideration of the claim of the petitioner at the hands of the Departmental Promotion Committee in the meeting convened on 18.01.1995. 11. In the circumstances noticed herein above, it is evident that since the claims of persons, junior to the petitioner, were considered and approved by the Departmental Promotion Committee in its meeting held on 18.01.1995, it is imperative to direct respondents Nos. 1 & 2 to convene a Review Departmental Promotion Committee to exclusively consider the claim of the petitioner for promotion from the rank of Assistant Engineer to that of Executive Engineer, based on his record of service, excluding the two adverse Annual Confidential 6 Reports for the years 1991-1992 and 1992-1993, which were subsequently expunged. Ordered accordingly. 12. Learned counsel for respondents Nos. 1 & 2, very fairly, states that the meeting of the Departmental Promotion Committee shall be convened and a decision shall be taken thereon, on the issue of promotion of the petitioner from the rank of Assistant Engineer to the post of Executive Engineer, within two months of the date of receipt of a certified copy of this order. 13. In view of the statement made by the learned counsel for respondents Nos. 1 & 2, we hereby direct that the Review Departmental Promotion Committee shall be convened, and a decision in respect of the suitability of the petitioner for promotion from the post of Assistant Engineer to the post of Executive Engineer will be taken, within two months from the date of receipt of a certified copy of this order. 14. Writ Petition stands allowed in the aforesaid terms. (B.C. Kandpal, J.) (J.S. Khehar, C. J.) 09.12.2009 09.12.2009 G