IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 208 of 2006 (S/B) Gopal Chander Pandey … Petitioner Versus Chairman-cum-Managing Director, Union Bank of India. … Respondent Mr. Manoj Tiwari, Sr. Advocate, assisted by Mr. Alok Mehra, Advocate, for the petitioner. Ms. Menka Tripathi, Advocate, for the respondent bank. Date of Judgment : 19.5.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Servesh Kumar Gupta, J. BARIN GHOSH, C.J. (ORAL) A non-officer, working in the respondent bank, was entitled at the relevant time to be promoted to the post of officer. For them, certain posts of officer had been reserved. Of those posts, certain posts were reserved for those who would be entitled to the same only on the basis of their seniority. The remaining were to be filled up on the basis of merit to be judged by examination from amongst them. For such non-officers to be promoted, the applicable rules provide a certain wait period. At the same time, the applicable rules provided that in the event, a non-officer has been designated as Special Assistant, there would be no wait period for him to be promoted. Certain non-officers of the respondent bank were promoted to the posts of officer w.e.f. 15.12.1978. Petitioner was designated as Special Assistant w.e.f. 15.7.1978. On 29.12.1979, petitioner was promoted to the post of officer. It is the contention of the petitioner that in 1988, after perusing 2 the seniority list, he came to learn that on 15.12.1978, non-officers were promoted to the posts of officer, when the case of petitioner was not considered. Accordingly, petitioner made representations. The first representation was answered by saying that petitioner was not a Special Assistant at the relevant time and, accordingly, he could not be promoted. In answer to the second representation, it was stated that the seniority of the petitioner did not fetch him a birth in the promotional post. In answer to the third representation, it was contended that there were 41 posts available for promotion on the basis of seniority, but as on the date of deciding to fill up those and other available posts to be filled up on merit, it transpired that candidates are not available for promotion on seniority quota and, accordingly, in accordance with the applicable rules, the posts available on seniority quota were also decided to be filled up on merit and that such decision was taken before the petitioner became a Special Assistant, when he had not acquired eligibility to be considered for promotion on the basis of seniority. 2. At about that time, there was a dispute as regards promotions to be given to the petitioner to the next higher posts. That brought the petitioner before the Hon’ble Allahabad High Court in a writ petition. During pendency of the writ petition, petitioner was accorded those promotions and, accordingly, petitioner represented through his learned Counsel before this Court, after transfer of the said writ petition to this Court, that the writ petition has become infructuous and the Court, accordingly, dismissed the writ petition as infructuous, but at the same time, gave liberty to 3 the petitioner to make a representation to Chairman- cum-Managing Director of the respondent bank for shifting the date of his first promotion. Petitioner, accordingly, made a representation for shifting his date of promotion to the post of officer from 29.12.1979 to 15.12.1978. This representation was rejected proceeding on the basis that the petitioner became eligible to be promoted on 15.7.1978, upon being designated as Special Assistant, and that the petitioner was seeking promotion to the post of officer also from 15.7.1978. Hence, the present writ petition. 3. In the counter affidavit filed by the respondent bank, it has been stated that the decision to promote in those available posts on the basis of merit was taken before 15.7.1978, when the petitioner, having not been designated as Special Assistant, was not eligible to be considered for promotion on seniority quota. This contention has not been supported by relevant materials. We, accordingly, directed the respondent bank to support the said contention by producing necessary material. We gave time therefor also. The respondent bank has failed to do so, instead it has written a letter to the learned Counsel engaged by them that the records are being searched, but have not yet been located. 4. Petitioner is contending that the stand, taken by the respondent bank that the decision to promote those people w.e.f. 15.12.1978 was taken before 15.7.1978, should not be accepted by this Court, firstly, for the respondent bank has failed to produce any document to support the said contention and, secondly, one Shri J.K. Chopra, also an employee 4 of the respondent bank in Uttar Pradesh Circle, was also made a Special Assistant on 15.7.1978 and he was given a promotion to the post of officer on 15.12.1978 and that the respondent bank is contending that Shri Chopra was promoted on merit quota, which in turn suggests that after 15.7.1978 steps were taken to supply available vacancy in the merit quota. It was contended that in those circumstances, can it be believed that before 15.7.1978, the bank could exhaust the vacancies in promotional quota available on seniority by merit because people in the promotional quota on seniority were not available? It was contended that in those circumstances, it must be deemed that only after 15.7.1978, steps were taken to supply the vacancies in the promotional posts available in both the quotas and for no just reason, the case of promotion of the petitioner was not considered on the seniority quota. It was also contended that the respondent bank is deliberately hiding relevant facts and the same is demonstrated by four altogether different stands taken by it in the replies given to the representations made by the petitioner. The submissions, thus, made cannot be brushed aside. However, if after 32 years, the respondent bank has not been able to locate the appropriate documents, it would be inappropriate on our part to blame the respondent bank. 5. It is true that Shri Chopra became a Special Assistant on 15.7.1978, but petitioner has not shown that before 15.7.1978, Shri Chopra did not acquire eligibility to seek promotion in the merit quota. That being the situation, and the petitioner, who is asserting in this writ petition that his legal right has been 5 defeated by the impugned actions on the part of the respondent bank, having failed to establish with certainty that the decision to supply the vacancies available in the seniority quota by merit was taken after 15.7.1978, when the petitioner became eligible for being considered for promotion on seniority quota, we have no other option but to close the chapter and, accordingly, we dismiss the writ petition. (Servesh Kumar Gupta, J.) (Barin Ghosh, C.J.) 19.5.2011 19.5.2011 Prabodh