IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 117 of 2009 (S/B) R amesh Chandra Pokhriyal ...…………. Petitioner Versus State of Uttarakhand & others ...…………. Respondents Mr. Rajendra Dobhal, Sr. Advocate assisted by Mr. G.D. Joshi, Advocate for the petitioner. Mr. B.D. Upadhyay, Addl. Advocate General, for respondent Nos. 1 & 2. Mr. Manoj Tiwari, Sr. Advocate assisted by Mr. Manish Basnal, Advocate for respondent No. 3. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C.J. (Oral) On 28th July 1989, writ petitioner as well as respondent No. 3 were appointed by the State of Uttar Pradesh as Assistant Director, Fisheries. While the petitioner was appointed as a permanent Assistant Director, respondent No. 3 was appointed as a temporary Assistant Director, whose service could be brought to an end upon giving him a month’s notice. In 1993, the U.P. Fisheries (Gazetted) Service Rules, 1993 was made in exercise of power conferred by proviso to Article 309 of the Constitution of India. In terms thereof the strength of the service and each category of 2 posts therein shall be such as may be determined by Government from time to time. The Rules provided that the post of Deputy Director shall be filled in by promotion from amongst substantively appointed Assistant Directors who have completed five years of service as such on the first day of the year of recruitment. The Rules further provided that the posts of Joint Director shall be filled by promotion from amongst substantively appointed Deputy Directors who have completed five years service as such on the first day of the year of recruitment. The Rules further provided that recruitment by promotion to the posts of Joint Director and Deputy Director shall be made on the basis of seniority subject to rejection of unfit through a Selection Committee constituted in accordance with the Uttar Pradesh Constitution of Departmental Promotion Committee (for Post Outside the Purview of the Service Commission) Rules, 1992. In the year 1995, a post of Deputy Director was available which could only be supplied by an Assistant Director, who has completed five years of service as such and who belongs to Scheduled Caste community. Respondent No. 3 having had completed five years of service as Assistant Director, and being a member of Scheduled Caste community, was considered for promotion to the said available post of Deputy Director by an appropriately constituted Selection Committee and thereupon he was promoted as Deputy Director on 31st May 1995. Since 31st May 1995, while the petitioner continued to serve the State of Uttar Pradesh as Assistant 3 Director, respondent No. 3 continued to serve the State of Uttar Pradesh as Deputy Director. On 18th November 2000, petitioner as well as respondent No. 3 were allocated to the State of Uttarakhand. While the petitioner was allocated as an Assistant Director, the respondent No. 3 was allocated as a Deputy Director. On 18th June 2001, the Government of Uttarakhand by a Government Order upgraded the post of Deputy Director, Dehradun to the post of Joint Director. Since, the respondent No. 3 was Deputy Director, Dehradun at the relevant time, he was upgraded to the post of Joint Director. While the said Rules were adopted by the State of Uttarakhand, in 2006 the State of Uttarakhand made its own Rules namely the Uttarakhand Fisheries (Gazetted) Service Rules, 2006. Since 2006, petitioner and the respondent No. 3 are governed by the said Rules, made by the State of Uttarakhand. In the present writ petition it is the contention of the petitioner that respondent No. 3 is junior to the petitioner, in asmuchas, while the petitioner and respondent No. 3 were appointed, petitioner was listed above the respondent No. 3, and later on also in the seniority list, petitioner was shown above the respondent No. 3. It is being contended that the petitioner is entitled to promotions to the post of Deputy Director as well as to the post of Joint Director from the date respondent No. 3 got promoted to the said posts. It is also being contended by the petitioner that there was no scope of upgrading the post of Deputy Director to the post of Joint Director and with that to 4 upgrade the respondent No. 3 from the post of Deputy Director to the post of Joint Director contry to the Rules. The fact remains that the post of Deputy Director, which was held by the respondent No. 3 since 31st May 1995, could not be held by the petitioner, since the said post was available only to a Scheduled Caste candidate. At the time when the petitioner and respondent No. 3 were allocated to the State of Uttarakhand, while the petitioner was a Assistant Director, the respondent No. 3 was a Deputy Director. The fact remains that on 18th June, 2001 the respondent No. 3 had already served as Deputy Director for five years, and accordingly, acquired the eligibility for being promoted to the post of Joint Director. It is true that there was no question of upgrading a Deputy Director to the post of Joint Director, while upgrading the post of Deputy Director to the post of Joint Director, when the Rules categorically provided that the post of Joint Director can be held by a Deputy Director who is found fit on the basis of seniority, subject to rejection of unfit, by a Selection Committee. In terms of the Rules, the State Government had power to alter the strength of service and each category of the service. Therefore, in law, it must be deemed that by the order dated 18th June 2001, the Government, as entitled to, created one more post of Joint Director, and at the same time abolished one post of Deputy Director. However, question of upgrading the person, serving on the abolished post, to the post of newly created Joint Director did not arise, since the same is not permissible by the Rules. We would, however, not interfere in the matter at the instance of the petitioner, 5 who should be deemed to be aware of the said Government Order dated 18th June 2001 from the date thereof, but who has approached this court only in 2009. The fact remains that as yet the petitioner has not been promoted to the post of Deputy Director, and accordingly, question of the petitioner been promoted to the post of Joint Director does not arise. We, accordingly conclude the matter, and dispose of the writ petition. [ (U.C. Dhyani, J.) (Barin Ghosh, C.J.) 11.11.2011 Negi