IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 153 of 2008 Kunwar Singh Rawat ...Petitioner Versus State of Uttarakhand and another …Respondents. Present: Mr. S. K. Posti, Advocate for the petitioner. Mr. N. P. Sah, Standing Counsel for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. S. K. Posti, Advocate for the petitioner and Mr. N. P. Sah, Standing Counsel for the respondents. The case of the petitioner is that he has been working as Class IV employee in the Regional Ayurvedic and Unani Office Chamoli at Gopeshwar in the erstwhile State of Uttar Pradesh since the year 1985. Subsequently, the petitioner wanted to take benefit for promotion. It is again undisputed fact that 15 per cent of Class III seats are to be filled up by way of promotion from Class IV employee who have the eligibility. Since the petitioner was not being promoted to Class III post in spite of his being eligible, he filed a writ petition being Writ Petition No. 6846 of 1996 before the High Court of Judicature at Allahabad. The said writ petition was disposed of with the direction to the concerned authorities to consider the representation of the petitioner and do the needful. Consequently vide order dated 5.6.2003 petitioner was promoted from Class IV to Class III by the Director of Ayurvedic and Unani Services, Uttarakhand, Dehradun and the petitioner took charge on 12.6.2003. Later on when the tentative inter se seniority list of Class III employees in the said department was published inviting objections, the petitioner moved an objection as his name did not appear 2 in the said list. Representation of the petitioner was disposed of by the concerned authorities by stating that he was never granted regular promotion to Class III post but his promotion was subject to the final decision of the writ petition. The petitioner has challenged the order by claiming the following relief: “a. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to give seniority to the petitioner from 07.06.2003 from the date of joining of the petitioner as Class III employees; b. Issue any suitable order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case; c. Award cost of writ petition to the petitioner.” In the counter affidavit, State has objected the contention of the petitioner by stating that the promotion of the petitioner to Class III post was conditional inasmuch as the earlier promotion dated 5.6.2003 was subsequently amended on 16.8.2003 by same authority i.e. the Director of Ayurvedic and Unani Services, Uttarakhand, Dehradun stating that the promotion of the petitioner is subject to the final decision of the writ petition and subsequently it is subject to the final selection of the petitioner on Class III post only after the petitioner qualifies the departmental examination. This the petitioner has challenged stating that firstly the order dated 16.8.2003 was never communicated to the petitioner and he was under the belief that he was regularly promoted and consequently the petitioner has contended that the order was passed on a misconception inasmuch as the writ petition of the petitioner being writ petition no. 6846 of 1996 at Allahabad High Court was 3 finally disposed of vide order dated 22.2.1996 and it was not pending consideration by the High Court. In fact the said writ petition was decided by the Allahabad High Court. The operative portion of the order dated 22.2.1996 reads as under: “Having heard counsel for the parties, I am inclined to dispose of the writ petition with the direction that the 2nd respondent shall look into the grievances of the petitioner and dispose of his representation within a month from the date of receipt of a certified copy of this order along with a copy of representation. It is clarified while disposing off the representation, the 2nd respondent shall keep in mind the G.O. dated 31.8.1982 and such other G.O. or Rules issued from time to time on the issue. The writ petition is disposed of in terms of the above direction.” Learned counsel for the State, however, contended that the petitioner could not have been given promotion form Class IV to Class III de hors the law. There is procedure prescribed under the law by which the candidature of only suitable candidate has to be considered which may include qualification in written examination. Be that as it may, the fact of the matter is that initial promotion of the petitioner order dated 5.6.2003 nowhere states that the order is passed subject to the final decision of the writ petition inasmuch such an order could not have been passed as the writ petition of the petitioner stood finally disposed of. All the same, it is also true that promotion of the petitioner to Class III post cannot be made de hors the law. Moreover, it is nobody’s Fundamental Right to be promoted to the next higher post. The Fundamental Right of the petitioner is only 4 limited to the extent that the petitioner be considered for promotion. This being the law, the writ petition is disposed of with the direction to the concerned authorities to consider the case of the petitioner for promotion to Class III post in accordance with law. This Court has been informed at the bar that these promotions are made on the basis of seniority subject to rejection on unfit. This being the situation the petitioner’s candidature be considered in accordance with law and in case the authorities find the petitioner is suitable, his promotion shall be considered from the date he was initially promoted i.e. from 5.6.2003. The writ petition is disposed of accordingly. No order as to costs. Sudhanshu Dhulia, J.) 13.6.2011 Kuldeep