IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 277 of 2009 (S/B) Maya Ram Purohit. .……… Petitioner Versus State of Uttarakhand & others. .………. Respondents. Mr. Manoj Tiwari, Senior Advocate with Mr. Alok Mehra, Advocate for the petitioner. Mr. K.P. Upadhyaya, Addl. Chief Standing Counsel for respondent Nos. 1 & 2. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. BARIN GHOSH, C. J. (Oral) When the petitioner approached this Court, he was under the impression that without considering his case of promotion, his juniors have been promoted and, accordingly, sought appropriate relief on that premise. In the counter affidavit, it was indicated by the respondents that the case of the petitioner too was considered and the petitioner was found not fit. Petitioner, accordingly, filed an application seeking to amend the writ petition. The purpose of seeking amendment is to highlight that the petitioner ought to have had been held fit for promotion in the admitted facts and circumstances of the case. 2. There is no dispute that the case of the petitioner for promotion, from Assistant Engineer to Executive Engineer, was considered. There is also no dispute that in accordance with the Rules, governing such promotion, seniority is to be taken note of only, unless, however, the person is declared unfit. By the Uttarakhand Procedure of Selection for Promotion in the State Services (Outside the Purview of the Public Service Commission) on the Basis of ‘Seniority’ and ‘Merit’, Subject to the Rejection of Unfit, (Procedure) Rules, 2009 (hereinafter referred to as the ‘Rules’), it has been provided that if five or more entries, out of the preceding 10 years’ entries in the character-roll of a candidate included in the field of eligibility, are classified as ‘good’ or ‘higher’ category and the entries of two years immediately preceding the year of consideration are 2 not adverse, such candidate shall be declared fit for promotion by the Departmental Promotion Committee. 3. The said Rule, therefore, makes it abundantly clear that in order to ascertain whether a candidate is fit or unfit, entries in his character-roll for 10 preceding years are to be considered. In the event, five of those entries are ‘good’ or ‘higher’ category and if entries of two years, immediately preceding the year of consideration, are not adverse, then the candidate should be deemed to be fit, but otherwise not. 4. The respondents have revealed in their counter affidavit, referred to above, that the Departmental Promotion Committee, while considering the case of promotion of the petitioner, took note of entries in the character- roll of the petitioner for the last 8 years and not 10 years as is the mandate of the said Rule. The reason for not considering the entries in the character-roll for the other two years is non-availability thereof. It has not been stated that the petitioner had anything to do with such non- availability. In the counter affidavit, it has been stated that out of the entries in the character-roll for those 8 years, 4 were found to be ‘good’ or ‘higher’ category and not 5 and, accordingly, the petitioner was declared or treated as unfit. It has not been contended that the entries of the two years, immediately preceding the year of consideration, were adverse. In such view of the matter, while considering entries in the character-roll for 8 years, since it was found that the petitioner has been classified as ‘good’ or ‘higher’ category in the character-roll of 4 years only, and not of 5 years, the petitioner was rated as unfit. 5. We do not accept the logic of the Departmental Promotion Committee as highlighted in the counter affidavit filed by the respondents. A look at the Rule would make it amply clear that a candidate is required to receive ‘good’ or ‘higher’ category in his character-roll for 50% of the period under consideration and that is the reason, while fixing the period of consideration at 10 preceding years, the requirement of obtaining ‘good’ or ‘higher’ category was fixed at 5 years or more. When the Departmental Promotion Committee considered entries for 8 years and not for 10 years, they should have proceeded to hold that the 3 petitioner has qualified in terms of the said Rule by obtaining ‘good’ or ‘higher’ category in 50% of those entries, which were considered. 6. We, accordingly, hold that, in the facts and circumstances of the case, the petitioner could not be declared by the Departmental Promotion Committee as unfit. The matter is remitted back to the Departmental Promotion Committee. They are directed to pass orders on the basis of pronouncement as above as quickly as possible, but not later than two months from the date of service of a copy of this order upon them. At the time of consideration, it shall be open to the Departmental Promotion Committee to look into the entries of two years, which had not been looked into. In the event, the petitioner did not get ‘good’ or ‘higher’ category in any of those two years’ entries, the Departmental Promotion Committee may re-declare that the petitioner is unfit. In the event, however, those are not looked at, or if those are looked at and the petitioner has obtained one ‘good’ or ‘higher’ category in any of those two entries, it goes without saying that the Departmental Promotion Committee shall declare the petitioner fit w.e.f. the date he was declared unfit and, accordingly, promotion to be given to the petitioner on the basis thereof shall be w.e.f. the date the others were given promotion in terms of the decision taken by the Departmental Promotion Committee on the earlier occasion. 7. This disposes of the writ petition. (V.K. Bist, J.) (Barin Ghosh, C. J.) 28.08.2010 28.08.2010 G