IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 77 of 2009 Dr. Hari Kant …..Petitioner. Versus State of Uttarakhand and another …..Respondents. Present : Mr. Manoj Tiwari, Senior Advocate assisted by Mr. Alok Mehra, Advocate for the petitioner. Mr. K.P. Upadhayay, Additional Chief Standing Counsel for the State of Uttarakhand. Coram: Hon’ble Barin Ghosh, CJ Hon’ble Sudhanshu Dhulia, J. Barin Ghosh, C.J. (Oral) In terms of the rules made under proviso to Article 309 of the Constitution of India, the petitioner is entitled to be promoted to the next higher post on the basis of his seniority provided, he is not “unfit”. While framing the said rules, what would be the yardstick for adjudging a candidate as “unfit” had not been prescribed. In 2003, the State Government prescribed the same by a circular, and thereby, held out that in order to ascertain whether a person is “unfit” his ACRs for the last ten years shall be taken into account, and only when a person has obtained good in average in those ACRs, he should be deemed to be “fit”, otherwise “unfit”. The case of promotion of the petitioner to the next higher post was considered and the result of such consideration was published on 31.3.2009, when the petitioner was not promoted. In the present writ petition, the contention of the petitioner is that despite he being the senior most, he has not been promoted though he cannot be treated as “unfit” for there is nothing adverse against him in his service records. In the counter affidavit, while the aforementioned circular of the government issued in the year 2003 was annexed, it was contended that the petitioner was found “unfit’. The reason therefore, however, had not been indicated in the counter affidavit. Today respondent-State has brought on record the ACR entries of the petitioner for the last ten years, which had been considered by the Departmental Promotion Committee. Therefrom, it appears that the petitioner in those ten years obtained one “good” entry, one “bad” entry and one “satisfactory” entry. The remaining were all fair. In these circumstances, it was contended that 2 since the average of the ten years entries were not “good”, in terms of the circular of 2003 the petitioner could only be treated as ‘unfit”, accordingly he has not been promoted. The learned counsel for the petitioner submitted that none of these entries, which should be deemed to be adverse against the petitioner since they stood in the way of the petitioner being promoted, were communicated to the petitioner, and as such no reliance can be placed thereon. The learned counsel further submitted that the 2003 circular, in the backdrop of what had been provided in the rules made under proviso to Article 309 of the Constitution of India, is inappropriate and illegal, inasmuch as by the said circular instead of prescribing a criteria for declaring a person “unfit”, a criteria had been declared for the purpose of adjudging merit, when the rules made under proviso to Article 309 of the Constitution of India consciously did not make promotion conditional upon adjudgment of merit. The fact remains that the petitioner has not challenged the said circular nor he has taken appropriate steps as are required to be taken for calling in question the entries in the said ten years’ ACRs. We, accordingly, dispose of the writ petition preserving the liberty of the petitioner to take appropriate recourse to law. (Sudhanshu Dhulia, J.) (Barin Ghosh, C.J.) 07.10.2010 Kuldeep