IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 86 of 2001 Ghanshyam Singh Jainer S/O Bhagwant Singh, R/O I.R.I. Colony, Roorkee, District Haridwar. … Petitioner. Versus 1. Superintending Engineer, Adharaanveshan Mandal, Irrigation Research Institute, Roorkee, Haridwar. 2. Selection Committee, Irrigation Research Institute, Roorkee, Haridwar through Chief Engineer. 3. Principal Chief Engineer, Irrigation Department, U.P. Lucknow. … Respondents. Mrs. Neetu Singh, Advocate, learned counsel for the petitioner. Mr. K.C.Tiwari, Brief Holder learned counsel for the respondents No. 1 and 2. Date October 19, 2011. Hon’ble B.S.Verma, J. Heard learned counsel for the parties. By means of this writ petition, the petitioner has sought writ in the nature of certiorari quashing the impugned orders dated 20-1-2001 (Annexure-9) and 23-01-2001(Annexure-10). By the order dated 20-1-2001 the promotional pay scale, which was granted by the Selection Committee to the petitioner was set aside and the consequential order dated 23-1-2001, whereby the order was passed to recover the excess amount of salary paid to the petitioner pursuant to the order dated 14-12-2000 in two equal instalments. Briefly stated the facts giving rise to the present writ petition , according to the petitioner, are that the petitioner was appointed as Mistri in the U.P. Irrigation Institute Roorkee on 2-11- 1977. After rendering 16 years of service, despite several requests when the petitioner was not considered for promotion, he approached the Allahabad High Court by filing Writ Petition No. 25611 of 1996, which was decided on 27-7-1999 and direction was 2 given to the Department that the petitioner should be considered against 1 per cent quota within the scope and ambit of sub-rule (4) of Rule 5 of the Irrigation Department Junior Engineer Service Rules, 1992 (for short 1992 Rules). The petitioner has annexed a copy of the said Rules as Annexure-2 to the writ petition. Subsequent to that, vide order dated 25-4-2000, the Chief Engineer-respondent no.3 passed an order to the effect that although the qualification of the petitioner Ghanshyam Singh Jainer is B.A. Technical with I.T.I. (Electronic) and he is a permanent employee in the department since 1-8-1982, but since he has not qualified the departmental eligibility test as has been provided under Rule 5(4) of the 1992 Rules, he cannot be considered for promotion. Aggrieved by the said order dated 25-4-2000, the petitioner filed Writ Petition No. 30311 of 2000 before the Allahabad High Court. The said writ petition was finally disposed of by order dated 24-7-2000. The order was passed to the following effect:- “Heard learned counsel for the petitioner and perused the impugned order dated 25.4.2000 whereby it has been held that the case of the petitioner would be considered under the Rules as and when qualifying examination takes place. It would appear from a perusal of the U.P. Government Servants (Criterion for Appointment by Promotion) Rules, 1994 as amended by the U.P. Government Servants (Criterion for Appointment by Promotion) (Second Amendment) Rules, 1999 that the promotion to a post carrying pay scale the maximum of which is below Rs. 18,300/- is made on the basis of “Seniority subject to rejection of the unfit.” In the case of the petitioner, the promotion will be governed by the rule of seniority subject to rejection of the unfit. Accordingly, the writ petition is disposed of with the direction that as and when the matter regarding promotion is taken up, the petitioner shall be considered in accordance with law provided that he satisfies the test of the eligibility.” 3 In compliance of the order dated 24-7-2000 passed by the Allahabad High Court in Civil Misc. Writ Petition No. 30311 of 2000, the Department had constituted a Selection Committee and promotional pay scale was granted to the petitioner vide order dated 4-12-2000. The proceedings of the meeting of Selection Committee has also been annexed as Annexure-6 to the writ petition, wherein the Committee came to a decision that since the post of Junior Engineer is not available, therefore, the petitioner is granted promotional pay scale after considering his A.C. Rs. Thereafter the order dated 4-12-2000 was passed in favour of the petitioner by the Superintending Engineer, Irrigation Research Institute, Roorkee. It is pertinent to mention here that by the impugned order dated 20-1-2001, the order dated 4-12-2000 was cancelled without affording any opportunity of hearing to the petitioner, which gave rise to the present writ petition. Counter affidavits as well as supplementary counter affidavit has been filed on behalf of the respondents. Specific stand has been taken by the respondents in the supplementary counter affidavit filed on behalf of the respondent no.3 on 14-11-2006 that the petitioner is not eligible for the promotional pay scale. Paragraph no. 10 thereof reads as under:- “10. That the contents of para 8 of the supplementary affidavit are denied. As provided in letter no. 4054/E-3G dt. 26/11/1997 i.e. SCA-1 to this affidavit; that the Nalkoop Mistries who has not qualified the eligibility examination, be granted next higher pay scale (Rs. 925-25-1150-30-1660) as personal pay scale after completing prescribed period of service as no promotional post is available to him. Therefore, against the said provisions/rule if any scale has been granted to any employee, as such said wrong order can be corrected/modified under Section 21 of General 4 Clause Act, 1897. The petitioner was wrongly granted the pay scale of Junior Engineer of Rs. 1400-40-18-1800-50-2300 and hence the said order was cancelled vide order dt. 22/01/2001. The said cancellation order dt. 22/01/2001 is totally valid. As per prevailing rules/Gos the petitioner is not entitled for the promotional pay scale, the petitioner was granted and is being paid the selection grade w.e.f. 04/11/1993 of Rs. 975-25-1050-30-1660; which revised from 01/01/1996 to Rs. 3200-4900. In future, the petitioner will be given an additional increment in pay scale after completing 19 years of service, and further after completing 24 years of service, he will be entitled to get selection grade. The petitioner is not entitled to get promotional pay scale of Rs. 1400-40-10-1800-50-2300 vide Office Memo dt. 04/12/2000. A copy of the Chart of payscale granted to the petitioner and copy of the pay scale of dt. 01/01/1996 are being filed herewith and is marked as Annexure No.-SCA-2 & SCA-3 respectively to this affidavit.” Rejoinder affidavit has been filed to rebut the contention of the respondents. I have perused the entire material placed before this Court and have pondered over the matter. Learned Brief Holder Mr. K.C.Tiwari appearing for the respondent nos. 2 and 3 has contended that earlier the writ petition was filed by the petitioner before the Allahabad High Court for promotion to the post of Junior Engineer, wherein the Allahabad High Court has held that if the petitioner is found eligible as per sub-rule (4) of Rule 5 of 1992 Rules, the petitioner be considered for promotion, therefore, the petitioner is not entitled for promotional pay scale of Junior Engineer as has been granted by the Selection Committee, which too was against the provisions of 1992 Rules, therefore, the order granting promotional pay scale was 5 rightly recalled by the impugned orders and the writ petition is liable to be dismissed. Learned counsel for the petitioner drew attention of this Court to the judgment of the Allahabad High Court wherein the order passed by the Chief Engineer, Irrigation Department, dated 25-4-2000 was assailed and the High Court passed the order 24-7- 2000 which has been reproduced above and has observed thus:- “It would appear from a perusal of the U.P. Government Servants (Criterion for Appointment by Promotion) Rules, 1994 as amended by the U.P. Government Servants (Criterion for Appointment by Promotion) (Second Amendment) Rules, 1999 that the promotion to a post carrying pay scale the maximum of which is below Rs. 18,300/- is made on the basis of “Seniority subject to rejection of the unfit.” In the case of the petitioner, the promotion will be governed by the rule of seniority subject to rejection of the unfit.” It is pertinent to mention here that the order dated 24- 7-2000 passed by the Allahabad High Court has not been assailed before the Apex Court. The judgment has become final, therefore, the contention raised in the counter affidavit by the respondents that 1992 Rules would be applicable in the case of the petitioner cannot be accepted. Besides, the impugned orders dated 20-1-2001 and 23-1-2001 have been passed without affording any opportunity of hearing to the petitioner, in whose favour the order granting promotional pay scale was passed. Before parting with the order, it may be mentioned that a representation was made by the petitioner during the pendency of the writ petition and the Executive Engineer concerned also recommended the case of the petitioner to the Chief Engineer for grant of promotional pay scale to the higher post of Junior Engineer. The Chief Engineer, in turn, directed the Superintending Engineer to take decision on the basis of the recommendations 6 made by the Executive Engineer. The recommendations made in favour of the petitioner by the departmental officers also lend support to the case of the petitioner. For what has been stated above, it is clear that the order dated 24-7-2000 passed by the Allahabad High Court had attained finality and that the impugned orders have been passed against the principles of natural justice and fair play as the petitioner was not given any opportunity before recalling the order, granting promotional pay scale to the petitioner. Therefore, the impugned orders are liable to be set aside. The writ petition is allowed. The impugned orders are set aside. The respondents are directed to pay to the petitioner the promotional pay scale as per Order dated 4-12-2000. Costs easy. (B.S.Verma, J.) RCP