IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1252 of 2006 (S/S) Suresh Chandra Arya …Petitioner Versus State of Uttaranchal & others ...Respondents Mr. B.S. Adhikari, Advocate for the petitioner. Mr. H.M. Raturi, Standing Counsel for the State of Uttarakhand. Dated: 30.10.2009 Hon’ble V.K. Bist, J. Heard learned counsel for the parties. Present writ petition has been filed for the following reliefs:- “1. a writ, order or direction in the nature of mandamus directing the respondents to consider the promotion of the petitioner for the post of “Labour Enforcement Officer” from the date when he got the eligibility as per the U.P. SUBORDINATE LABOUR SERVICES RULES-1992. 2. a writ, order or direction in the nature of mandamus directing the respondents to give the other entitled notional promotions next to the post of Labour Enforcement Officer along with the arrears of service. 3. to pass any other order or direction which this Hon’ble Court deems fit and proper under the facts of the case. 4. to award cost throughout”. 2 2. Brief facts of the case are that on 18.08.1989 the petitioner was appointed on the post of Stenographer in the pay scale of Rs.4000-6000/-. On 27.02.1997 the petitioner was promoted as Senior Stenographer. The next promotional post in the department is Labour Enforcement Officer having the pay scale of Rs.5000-8000/- and promotions on this post are made in accordance with Rule 5(3)(2)(ii) of the U.P. Subordinate Labour Service Rules, 1992 (for short the ‘Rules’) and the amended Rules 1996 which provides 50% quota for promotion amongst the employees of four different cadres, namely, (i) 25% from the employees who have completed 10 years of service on the post of Hitkari Adhikshak, Grah Nirikshak, Hindi Anuwadak etc. (ii) 7.5% from the Senior Assistants working in the Office of Labour Commissioner as well as in the Factories Directorate in the ratio of 4:1 who have completed 10 years of service. (iii) 7.5% from the Stenographers working in the office of Labour Commissioner as well as in the Factories Directorate in the ratio of 3:1 who have completed their 10 years of service. (iv) 10% from the Head Clerks Senior Assistants working in the office of Deputy & Regional Additional Labour Commissioner who have completed 10 years of service. 3. Rule 6 of the ‘Rules’ provides that reservation for Scheduled Castes, Scheduled Tribes and other backward classes shall be as per Government Orders prevailing at the relevant time whereas Rule 19 of the ‘Rules’ provides that 3 criteria for the recruitment by promotion will be the Seniority subject to rejection of unfit. 4. In the year 1992 U.P. State Hill Sub-Cadre Rules, 1992 were framed. Labour Department was also included in the Schedule of the Hill Sub-Cadre Rules. Options were invited and petitioner alongwith other employees submitted his option for Hill Sub-Cadre. Thereafter by the order of Labour Commissioner dated 28.06.1996 services of the petitioner were transferred to the Hill Sub-Cadre. After creation of State of Uttarakhand, all employees who were member of Hill Sub-Cadre including the petitioner, were allocated State of Uttarakhand. 5. The petitioner is working in the Stenographer Cadre in Karkhana Nideshalaya. As per Staffing Pattern there are total 25 posts of Enforcement Officer out of which 13 posts fall under the promotional quota. Learned counsel for the petitioner submitted that as per Rule 7.5% of posts fixed for promotional quota are to be filled from the Stenographer Cadre which comes to two posts out of which first post is to be filled by the reserved category as per Roaster Rules. He submitted that in the year 2002 the petitioner was eligible for promotion as per the ‘Rules’ but surprisingly the respondents promoted three persons from the Stenographer Cadre, namely, R.C. Awasthi, Harsh Singh Bangari and Ashok Bajpayee ignoring the claim of the petitioner. When the petitioner was not promoted he made a representation on 15.03.2002 which was duly recommended by respondent 4 no.3 but respondents, ignoring the claim of the petitioner, promoted other persons on 24.02.2006. The petitioner again made a representation on 24.02.2006 for granting him promotion but petitioner was not promoted. Hence present petition was filed. 6. The respondent no.2 filed his counter affidavit in which he submitted that as per Staffing Pattern out of 13 posts falling under promotion quota six persons are already working after getting promotion under the Stenographer Cadre out of which one Labour Enforcement Officer belongs to Scheduled Castes category. From the second cadre one employee is already promoted as Labour Enforcement Officer from Karkhana Nideshalaya and second post is reserved category post and is to be filled up by way of promotion of Senior Assistant from the office of Labour Commissioner and would be filled up as such. In the third cadre two posts are prescribed but prior to creation of State of Uttarakhand three Labour Enforcement Officers were promoted from Stenographer Cadre and out of which one R.C. Awasthi died on 10.01.2003 and presently, two Labour Enforcement Officers are already promoted in the said cadre and, therefore, petitioner cannot be promoted as the petitioner also belongs to the Stenographer Cadre and no promotion from the Stenographer Cadre has been made after creation of State of Uttarakhand. In the fourth cadre three Labour Enforcement Officers have already been promoted out of which one officer belongs to Scheduled Caste category. In the counter affidavit it is also mentioned that the petitioner 5 who is working as Stenographer in Karkhana Nideshalaya, for which cadre only two posts have been reserved and both are duly filled up, consequently, the petitioner is not entitled to any relief and writ petition deserves to be dismissed. 7. The petitioner, in his supplementary affidavit, has mentioned that out of three persons promoted as Labour Enforcement Officer from the Stenographer Cadre, R.C. Awasthi died on 10.01.2003 and Harsh Singh Bangari retired from service on 31.07.2007. It is further written in the supplementary affidavit that third person promoted as Labour Enforcement Officer under Stenographer Cadre, namely, Ashok Bajpayee neither was member of Hill Sub-Cadre nor he opted for State of Uttarakhand but infact opted for State of Uttar Pradesh. He was relieved for State of U.P. by the order of Regional Deputy Labour Commissioner, Haldwani. Copy of the relieving order has also been annexed with the supplementary affidavit. The facts mentioned in the supplementary affidavit have not been denied by the respondents. 8. Learned counsel for the petitioner submitted that after creation of State of Uttarakhand three posts of Labour Enforcement Officer fell vacant against which the petitioner can be promoted. He also submitted that since the petitioner is senior most eligible candidate available from the Scheduled Caste category, the respondents are acting illegally by not promoting him on the post of Labour Enforcement Officer. 6 9. After hearing learned counsel for the parties and after examining entire material available on record it is clear that promotional posts of Labour Enforcement Officer which was occupied by R.C. Awasthi, Harsh Singh Bangari and Ashok Bajpayee are vacant against which no promotional exercise has been done after creation of State of Uttarakhand. Therefore, the respondents are directed to take immediate steps for making promotion on the posts of Labour Enforcement Officer from the cadre of Stenographer. Respondents are further directed to consider the case of the petitioner for promotion on the post of Labour Enforcement Officer as per relevant service rules as well as reservation rules. 10 With the aforesaid direction, the writ petition is disposed of. 11. No order as to costs. (V.K.Bist, J.) 30.10.2009 Arti