IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1215 of 2011 (S/S) Sri Beer Singh Bhandari ………..Petitioner Versus State of Uttarakhand and others …….Respondents Shri Surendra Kumar Posti, learned counsel for the petitioner. Shri N.P. Sah, learned Standing Counsel for the State/respondents. Dated: 7th December, 2011 Hon’ble V.K. Bist, J. Petitioner was appointed as Junior Clerk in Zila Parisad, Chamoli on 21.10.1971. In the year 1972, the petitioner’s services were merged in the Basic Education Board and vide order-dated 04.10.1978, his services were confirmed with retrospective effect from 01.08.1973. Subsequently, the petitioner was promoted as a Senior Clerk on 01.08.2000. After creation of State of Uttarakhand, the State Government enacted Uttaranchal School Education, Act, 2006, by which the services of the petitioner stood transferred to State Government. Thus, petitioner became government employee. On 22.08.2007, a post of Chief Assistant fell vacant in the office of District Education Officer, Chamoli. He applied for promotion and submitted his representation. The representation of the petitioner was rejected vide order dated 08.05.2009, holding that the petitioner was not entitled for promotion, since he was not the senior most, as his seniority was counted from 22.04.2006 i.e. the date when his services were transferred to the State 2 Government. Aggrieved by the said order, the petitioner filed the Writ Petition no.270 of 2009 (S/S) before this Court. The said writ petition was allowed by this Court on 23.12.2009, holding that the services rendered by the petitioner in the Basic Education Board has to be taken into consideration in view of the provision of Section 58 of the Uttaranchal School Education Act, 2006, which clearly provides that the teachers, officers and employees of Basic Shiksha Parishad working immediately before the date of the commencement of the Act, shall be transferred to the State Government and such employees shall become the employees of the State Government. This Court issued direction to the respondents to consider the promotion of the petitioner on the post of Chief Assistant, after taking into consideration the services rendered by the petitioner in the Basic Education Board and, if found eligible, promote the petitioner to the post of Chief Assistant w.e.f. one day before the date when the juniors to the petitioner were promoted. The order-dated 23.12.2009 was challenged by the State Government in the Special Appeal no.44 of 2010. The said appeal was disposed of by order-dated 28.06.2010. The Division Bench modified the order of the Hon’ble Single Judge dated 23.12.2009 and directed to consider the claim of the petitioner for promotion on the post of Chief Assistant with effect from the date when his juniors were promoted. In compliance of the said order, the petitioner was promoted on the post of Chief Assistant w.e.f. 19.06.2010. The seniority of the petitioner was also fixed vide order dated 26.08.2010 and the petitioner was placed at Sl. No.736A, just above the name of Anand Ballabh Dangwal and below the name of Suresh Chandra Tripathi. Thereafter, few posts of Administrative Officer fell vacant in the department. The respondents considered the claim of the eligible Chief Assistants for the said posts and promoted as many as 113 Chief Assistants from the General Cadre to the post of Administrative Officer. The name of the petitioner was not considered and he was not promoted, though about 94 persons, who were junior to the petitioner, were promoted. Aggrieved by the said order, the petitioner has filed the present writ petition for a direction to the respondents to give promotion to the petitioner from the date on which the juniors to the petitioner have been given promotion and also to place the petitioner just above Shri Anand Ballabh Dangwal at Sl. No.334 of the promotion list. 2. The contention of the learned counsel for the petitioner is that since the controversy for grant of benefit of service rendered by the petitioner in Basic Education Board for granting him promotion in the State Government department, has already been settled in Writ Petition no.270 of 2009 (S/S) and thereafter in Special Appeal No.44 of 2010, the respondents have acted illegally by not considering the claim of the petitioner for promotion on the post of Administrative Officer. He submitted that no scope is left for the respondents to deny the petitioner the benefit of services rendered by the petitioner in Basic Education Board. Learned counsel for the petitioner 4 also referred to Uttarakhand State Services Determination of period for Eligibility for Promotion under Ministerial Cadre Posts Rules, 2011 (for short the Rules). Rule 3 (e) of the Rules provides that ‘subordinate posts’ means the services rendered on any post of Junior Assistant, Senior Assistant, Chief Assistant and Administrative Officer. He also referred to Rule 4(2) of the Rules, which provides that for promotion on the post of Administrative Officer, the eligibility determined, rejection of unfit, of those substantively appointed Chief Assistant, who have completed minimum three years on the first date of recruitment year or have completed minimum 17 years of service on subordinate posts. 3. Only ground taken by the respondents in their counter affidavit is that the petitioner was an employee of Basic Education Board and subsequently w.e.f. 22.04.2006, the services of the petitioner came under Government department and he was declared a Government employee. The submission of the learned Standing Counsel is that the petitioner has been treated as government employee from the date of provincialization of his services w.e.f. 22.04.2006 with the post occupied by him and services rendered by him prior to that date shall not be counted under Rule 4(2) of the Rules. He further submitted that in compliance of the order passed by the Division Bench of this Court in Special Appeal No. 44 of 2010, the seniority of the petitioner was determined on the post of Senior Assistant w.e.f. 01.08.2000 and therefore, benefit of service rendered by the petitioner prior to 01.08.2000 for consideration on the post of Administrative Officer cannot be granted to the petitioner. 4. I have considered the submission of the learned counsel for the parties. Admittedly, the petitioner has not completed three years service on the post of Chief Assistant. The only controversy which has to be decided by this Court is whether the petitioner has rendered 17 years service on subordinate post, as mentioned under Rule 4 (2) of the Rules. 5. Section 58 of Uttaranchal School Education Act, 2006, by which the services of the petitioner stood transferred to State Government is quoted below: “58. The services of teachers and employees of Basic Shiksha Parishad to be under the control of State Government-All the teachers, officers and employees of Basic Shiksha Parishad, including any supervising or inspecting officer or employee working immediately before the date of the commencement of this Act, shall be transferred to the State Government and they shall become teachers, officers and employees of the State Government and their services shall be governed by the service rules prescribed by the State Government.” Above quoted rule clearly provides that all the teachers, officers and employees of Basic Shiksha Parishad, including any supervising or inspecting officer or employee working immediately before the date of the commencement of the Act, shall be transferred to the State Government and they shall become the employees of the State Government. Therefore, as already held by this Court in Special Appeal No.44 of 6 2010 that continuous service rendered by the petitioner is liable to be given effect to, to determine intense seniority, therefore, services rendered by the petitioner in the Basic Education Board, should be counted for all practical purposes. Once, service rendered by the petitioner in Basic Education Board is considered for one post, the same should also be considered for granting him promotion on another post. 6. In view of the aforesaid discussion, the writ petition is allowed. The respondents are directed to consider the case of the petitioner for promotion for the post of Administrative Officer by considering services rendered by him in Basic Education Board. Entire exercise shall be completed within a period of four months from today. In case, the petitioner is found fit and is promoted, he shall be placed above Shri Anand Ballabh Dangwal. 7. Interim Relief Application (CLMA No.9530 of 2011) also stands disposed of. (V.K. Bist, J.) Arpan 07.12.2011