IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1178 (S/S) of 2009 Nathu Lal S/o Shri Gendan Lal . .……… Petitioner Versus State of Uttarakhand and others ……… Respondents Hon’ble Tarun Agarwala, J. Heard Shri T.A. Khan, the learned counsel for the petitioner and Shri N.P. Sah, the learned Standing Counsel for the respondents. The petitioner was appointed on the post of Seinchpal in the Irrigation Division Haldwani, District Haldwani in the year 1981. The petitioner was confirmed on the said post in the year 1986. The petitioner preferred a writ petition in the year 1989 praying that on account of a vacancy in the office, he is entitled to be promoted on the post of Seinch Paryavekshak. It transpires that several representations were made by the petitioner and, eventually, the respondents issued two orders dated 13th July, 1994 and 19th July, 1994 intending to make promotion on the post of Seinch Paryavekshak after holding a written and oral examination. The petitioner, being aggrieved by the said order, filed the present writ petition before the Allahabad High Court contending that there was no such provision for holding a written or oral examination and that the promotion was required to be made on the basis of seniority subject to the rejection of the unfit. The writ court, while entertaining a writ petition, passed an interim order staying the effect and operation of the impugned order dated 13th July, 1994 and 19th July, 1994. Subsequently, the interim order was modified to the extent that one post would be kept reserved and would not be filled up by way of promotion. 2 During the pendency of the writ petition, several affidavits have been filed by the parties and, upon the creation of the State of Uttarakhand, this matter was transferred from the Allahabad High Court to this Court. It has also come on record through a supplementary counter affidavit that rules relating to promotion is known as Irrigation Deptt. Services of Amin Rules, 1954. The extract of these rules has been annexed as Annexure-5 to the supplementary counter affidavit dated 28th September, 2006. Chapter 6 Rule 17 of the said rules indicates that promotion is required to be made on the basis of seniority subject to the rejection of the unfit. Consequently, it is quite apparent that the instructions issued by the opposite parties pursuant to the impugned order to hold a written examination appears to be in violation of the said rules. The petitioner has filed a supplementary affidavit dated 25th August, 2003 annexing an order dated 5th August, 1998 which indicates that two persons have been promoted on the basis of seniority on the post of Seinch Paryavekshak. In the said order, it was also indicated that the promotion of the petitioner has not been made on account of the fact that a writ petition was pending before the Court. The petitioner in paragraph 3 of the said affidavit has categorically stated that two persons who have been promoted by an order dated 5th August, 1998, are junior to the petitioner. This fact has not been denied by the respondents since no supplementary counter affidavit has been filed. The petitioner has also filed another supplementary affidavit dated 7th August, 1995 enclosing a circular dated 17/09/1996 in which it has been specifically provided that the promotion would be made on the basis of seniority subject to the rejection of the unfit. No reply has been filed to this affidavit by the respondents. 3 In view of the aforesaid, it is clear that the direction of the respondents to hold a written examination in order to promote the petitioner to the post of Seinch Paryavekshak appears to be wholly arbitrary and against the rules. Consequently, the impugned orders cannot be sustained and are quashed. The writ petition is allowed. In view of the fact that admittedly juniors have been promoted by an order dated 5th August, 1998 and pursuant to the interim order one post has been reserved, consequently, a writ of mandamus is issued to the respondents to consider the petitioner for promotion to the post of Seinch Paryavekshak on the basis of seniority subject to the rejection of the unfit and, if found eligible, the petitioner would be promoted w.e.f. the date one day before the juniors were promoted. This exercise shall be done by the respondents within three months from the date of the production of a certified copy of the order. (Tarun Agarwala, J.) Dated 22.12.2009 Shiv