IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No.341 (S/B) of 2003 Mahadev Prasad S/o Late Lachi Ram, R/o Jakhani (Guck Paur) Post- Bin, District Pithoragarh … Petitioner Versus 1. State of Uttaranchal through Secretary, Finance, Uttaranchal, Dehradun 2. Director of Treasury & Finance Service, Uttaranchal, Dehradun 3. Sri Laxman Prasad Suyal presently posted as Treasury Officer, Dehradun 4. Sri Ajad Singh Rawat, presently posted as Treasury Officer Roorkee, Hardwar 5. Sri Bahadur Singh Kunwar, presently posted as Treasury Officer New Tehri 6. Sri Satyakishor Sharma, presently posted as Treasury Officer Uttarkashi 7. Sri Brahmpal SIngh Tyagi, presently posted as Treasury Officer BSA Officer, New Tehri. …Respondents Hon’ble P.C. Verma, J. Hon’ble B.C. Kandpal, J. By means of this writ petition, the petitioner has prayed for writ of mandamus commanding the respondent Nos. 1 and 2 to consider and promote the petitioner to the post of Treasury Officer in accordance with his seniority w.e.f. 03.10.2000 i.e. from the date when the persons junior to the petitioner were promoted. 2. Brief facts of the case as narrated by the petitioner are that he was initially appointed as a Routine Grade Clerk in the office of District Treasury Officer, Pithoragarh on 21.09.1974. Thereafter, the petitioner was promoted as Senior Clerk (Assistant Accountant 2 Grade-I) on 01.10.1979 and the services of the petitioner were confirmed. On 11.12.1983, the petitioner was promoted on the post of Bill Passing Clerk/ Cheque writer, reclassified in 1987 on the post of Assistant Treasury Officer. On 12.01.1990, the petitioner was again promoted to the post of Sub-Treasury Officer against the vacant post Sub-Treasury Jaspur and the petitioner was transferred from Pithoragarh to Jaspur and he joined his services after promotion on 18.01.1990. Subsequently, in the year 1992-93, an adverse entry was given to the petitioner by the respondents and on 18.10.1997, an order was passed by Respondent No.2 in pursuance of adverse entry and allowed to cross the efficiency bar. In the year 1988, a final seniority list in respect of Assistant/Sub Treasury Officer was circulated by the Director Finance and the petitioner was placed at Serial No.38 in the seniority list in respect of permanent Sub-Treasury Officer. Sri Indrajeet Prasad has been placed at Serial No.39, Sri Ram Kumar at Sl. No.42, Sri Ramakant Tripathi at Sl. No.44, Sri Nirankar Prasad Dubey at Sl. No.45, Sri Brahampal Singh Tyagi at Sl. No.48 and Sri Mohd. Hussain was placed at Sl. No.50 in the said seniority list and as such the petitioner is much senior to these persons. The above persons were working on the post of Sub-Treasury Officer and Assistant Treasury Officer and they were promoted on the post of Treasury Officer. It has further been alleged that after the creation of State of Uttaranchal, a seniority list of Assistant/Sub-Treasury Officer was circulated by the Director in which petitioner finds place at Sl. No.1 in the seniority list. Sri Laxman Prasad Suyal-Respondent No.3 has been placed at Sl. No.2, Sri Ajad Singh Rawat- Respondent No.4 at Sl. No.3, Sri Bahadur Singh Kunwar- Respondent No.5 at Sl. No. 4 and Sri Satya Kishore Sharma- Respondent No.6 has 3 been placed at Sl. No.5 in the said seniority list. Thereafter, on 27.04.2002, a promotion order was passed by Respondent No.2 and the above mentioned junior persons were promoted on the post of Treasury Officer. Feeling aggrieved by the promotion of junior persons, the petitioner filed a representation before Respondent No.2 on 27.04.2002 for consideration of his case. The petitioner again made a representation on 14.05.2002 and requested Respondent No.1 to adopt roster system for promotion constituted by State of Uttaranchal. The petitioner also made several representations to the Secretary Finance and to the other authorities concerned, however no response whatsoever could be evinced from them. Feeling aggrieved, the petitioner has come up in the writ petition. 3. A counter affidavit has been filed on behalf of Respondent Nos.1 and 2 in which it has been stated the promotion order dated 03.10.2000 was issued by erstwhile State of U.P. and not by the State of Uttaranchal and the promotion vide the said order was made on the basis of merit as provided in the relevant Service Rules. It has further been alleged that for the purpose of promotion, the number of posts against 20% promotion quota ear marked for Assistant Treasury Officer/Sub Treasury Officer comes out to be 9 and out of these 9 posts, 5 posts were already been filled up and 4 vacancies existed at the relevant point of time. As such a requisition for filling up the 4 vacant posts was sent to the Public Service Commission, Uttaranchal by the Govt. and the petitioner was also included in the zone of consideration. The Public Service Commission by the virtue of his seniority did not recommend the name of the petitioner for promotion in view of his service record for the past 10 years. It has further been alleged that the 4 petitioner has the alternative remedy to approach the Public Services Tribunal by way of a claim petition and as such the writ petition is not maintainable. Besides this, in all the other paragraphs, the contents of the writ petitions have been denied. 4. We have heard learned counsel for the parties and perused the entire evidence on record. 5. Since the petitioner was allowed to cross the efficiency bar on 18.10.1997 after the adverse entry awarded to him in the year 1992-93, therefore, the petitioner could not have been superseded on account of this adverse entry. Therefore, the persons junior to the petitioner could not have been promoted in view of the Rule-4 of the Uttaranchal Government Servants (Criterion for recruitment by promotion) Rules, 2004, which reads as under:- “4. Recruitment by promotion to the post fo Head of Department, to a post just one rank below the Head of Department and to a post in any service carrying the pay scale the maximum of which is Rs.18,300/- or above shall be made on the basis of merit, and to the rest of the posts in all services to be filled by promotion, including a post where promotion is made from a non-gazetted post to a Gazetted post or from one service to another service, shall be made on the basis of seniority to the rejection of the unfit.” 6. The Apex Court in the case of “Brij Nath Pandey Vs. State of U.P. & others, (2001) 9 Supreme Court Cases, 398” in which it has been held that adverse entries made earlier in the ACR could not come in the wary of promotion when appellant was subsequently allowed to cross efficiency bar. 7. In view of the above, it is apparently clear the persons junior to the petitioner could not have been promoted on the basis of seniority to the rejection of the 5 unfit. Therefore, the respondents are directed to consider the case of the petitioner for promotion ignoring the adverse entry awarded to him on 18.10.1997 for the year 1992-93 within a period of 10 days from the date of production of certified copy of this order. It is further made clear that the promotion of the petitioner shall be given effect from the date from which the persons junior to the petitioner have been promoted. 8. The writ petition is allowed accordingly. No order as to costs. (B.C. Kandpal, J.) (P.C. Verma, J.) 02.03.2006 02.03.2006 Rajeev Dang