IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 1141 (M/B) of 2005 Bhagwati Prasad Bhatt S/o Late Sri Ishwari Datt Bhatt, At present posted as Chief Veterinary Officer, Animal Husbandry, Uttaranchal, Dehradun, Distt. Dehradun …… Petitioner Versus 1. State of Uttaranchal through Chief Secretary Dehradun, District Dehradun. 2. State of Uttaranchal through Principal Secretary Forest & Rural Development, Dehradun, District Dehradun 3. State of Uttaranchal through Secretary, Department of Animal Husbandry, Dehradun, Distt. Dehradun 4. Addl. Secretary, Animal Husbandry, Fisheries & Dairy Department, Govt. of Uttaranchal, Dehradun, District Dehradun ..……Respondents Sri L.P. Naithani, Senior Advocate assisted by Sri Rakesh Thapliyal, ld. Counsel for the petitioner. Sri K.P. Upadhyaya, learned standing counsel for the respondents. Hon’ble P.C. Verma, J. Hon’ble B.C. Kandpal, J. Dated: March 29, 2006 By means of this writ petition, the petitioner has prayed for writ of certiorari quashing the order dated 26.09.2005 passed by Respondent No.3 (Annexure No.2 to the writ petition) and further a writ of mandamus directing the respondents to consider the candidature of the petitioner for promotion to the post of Additional Director (Now re-designated as Director) by treating the petitioner to be promoted as Dy. Director notionally from 1997 and to the post of Joint Director since 1999. 2. Brief stated facts as narrated by the petitioner are that he was initially appointed on the recommendation of the Public Service Commission on the 2 post of Veterinary Assistant Surgeon in the year 1969. Thereafter, an advertisement was issued on 30.4.1977 whereby the applications were invited for the post of District Livestock Officer and other equivalent post from the candidates who were eligible to be appointed on the said post and accordingly the petitioner as being eligible candidate holding the post of Veterinary Assistant Surgeon also applied in pursuance to the aforesaid advertisement. In the meantime, a writ petition No. 6854 of 1986 was preferred before the Allahabad High Court wherein the said advertisement dated 30.4.1977 was challenged on the ground that the vacancies advertised should be filled up by way of promotion alone and not by way of direct recruitment through Commission. Meanwhile, the interviews in pursuance to the aforesaid advertisement were held from 18.07.1987 to 25.07.1987 in which the petitioner also interviewed but the result of the said interview was not declared due to the interim order passed by the Allahabad High Court in the said writ petition on 23.07.1987 whereby the Court directed that although the selection may go on and the entire process of the selection may be completed but the appointment letters may not be issued till further orders of this Court. After completion of the entire selection process, a writ petition No.1151 of 1999 was also filed by the Allahabad High Court wherein on 26.7.1999, an interim order was passed whereby the directions were issued to declare the result of the selection for the post of District Livestock Officer within two weeks. In pursuance to this, the result for the post of District Livestock Officer was declared in which the petitioner and other incumbents were declared selected for the post of District Livestock Officer. The writ petition No.6854 of 1986 was dismissed by the Allahabad High Court on 13.11.1997 and despite the dismissal of the said petition whereby 3 earlier the Commission was restrained from declaring the result, no appointment letter was issued and subsequently a writ petition NO. 460 of 2000 was filed before Allahabad High Court which was allowed by the High Court vide judgment and order dated 16.3.2001 by observing that the petitioners should not suffer because of the interim order of the Court dated 23.7.1987 passed in W.P. No.6854 of 1987 which was dismissed on 13.11.1997. By allowing the said W.P. No.460 of 2000, the High Court issued the directions for giving the appointments to the post of District Livestock Officers per the recommendation of the Commission forthwith. Against the said judgment dated 16.3.2001, the State went into appeal before Supreme Court which was also dismissed by the Hon’ble Supreme Court vide judgment and order date 10.12.2001. Thereafter the enforcement of the U.P. Hill Sub Cadre Rules, 1992, the petitioner opted for Hill Sub Cadre and consequently he was included in the Hill Sub Cadre from 1994 and thereafter after the bifurcation of the State, the petitioner was allocated finally for the State of Uttaranchal by a Government Order issued by the Central Government dated 11.9.2001. Thereafter, in compliance to the direction of the High Court vide judgment and order dated 16.3.2001, the petitioner approached the Uttaranchal Government whereby he requested that order dated 16.3.2001 may be complied with and he may be treated to be appointed as District Livestock Officer and his seniority may also be fixed by treating him to be appointed as District Livestock Officer since 1987. The said representation was submitted by the petitioner on 26.3.2001, however, no action was taken on the said representation. Thereafter, Govt. of Uttaranchal issued an order on 3.4.2002 whereby the petitioner was treated to be appointed as Chief Veterinary Officer on the recommendation of the 4 Commission. The order dated 3.4.2002 was also sent to the other incumbents who were affected due to fixation of the seniority by placing the petitioner at Sl. No.9-A in the seniority list issued on 22.2.1994. The grievance of the petitioner is that one Mr. A.C. Kala, who is junior to the petitioner and is placed at Sl. No.10 in the seniority list was granted promotion to the post of Joint Director by an order dated 23.10.1999. After the creation of the State of Uttaranchal, the Dept. of Animal Husbandry was restructured wherein one post of Director was sanctioned. Thereafter, by a Government Order dated 31.7.2004, the charge of the Additional Director was given to one Smt. Damyanti Dohrey, The Addl. Secretary of Animal Husbandry, Fisheries & Dairy Dept., Govt. of Uttaranchal by way of additional charge. The petitioner thereafter moved a representation on 16.4.2005 for redressal of his grievance to the Secretary wherein the requested that he may be given the notional benefit by way of promotion him to the post of Joint Director and further he may also be promoted to the post of Additional Director (now redesignated as Director). The Secretary vide his order dated 26.09.2005 dismissed the representation of the petitioner. Feeling aggrieved, the petitioner has come up in the writ petition. 3. We have heard learned counsel for the parties and perused the entire evidence of record. This Court in Writ Petition No.181 of 2005 vide order dated 11.08.2005 passed the following order:- 1. Mr. L.P. Naithani, learned Senior Counsel for the petitioner submits that, for the time being, the petitioner will be satisfied if a direction is given to the third respondent i.e. Secretary, Department of Animal Husbandry, District Dehradun to consider and dispose of Annexure 15 representation dated 16.04.2005 as expeditiously as possible. We have also heard 5 Mr. K.P. Upadhyaya, learned Standing Counsel for the State of Uttaranchal who accepted notice for the respondents. 2. Having regard to the facts and circumstances of the case, we are of the view that in the light of Annexure 1 judgment of the Allahabad High Court in Civil Writ Petition No. 460 of 2000 and Annexure 11 order dated 24.12.2002 of the Government of U.P., the request of the petitioner for notional benefits should be considered by the Government of Uttaranchal in accordance with law. 3. Hence, the writ petition is disposed of with Annexure 15 representation dated 16.04.2005 of the petitioner in the light of Annexure 1 judgment and Annexure 11 order of the Government of U.P. and to pass appropriate orders in accordance with law as expeditiously as possible and at any rate, within a period of two months from the date of receipt of a copy of this judgment. The petitioner may produce a copy of this judgment before the third respondent for information and compliance. 4. As provided under the aforesaid order, the petitioner made a representation to the State Government and the State Government has now refixed the seniority of the petitioner and the petitioner has been placed at Sl. No.9-A of the seniority list. 5. So far as the dispute relating to the seniority is concerned, that has come to an end as the petitioner has been placed at Sl. No.9-A of the seniority list i.e. above Dr. Akhil Chandra Kala who was placed at Sl. No.10. The only grievance of the petitioner is that Sri Akhil Chandra Kala being junior to the petitioner was promoted earlier than the petitioner. It reveals from the perusal of the Annexure 8 to the writ petition which is a Government Order dated 3.4.2002 that the petitioner has been placed at Sl. NO.9-A in the tentative seniority list 6 --------------------------------------------------------------------- --------No. 10. The Additional Director, Animal Husbandry of the State of Uttaranchal has written a letter dated 28.7.2004 to the Additional Secretary, Dept. of Animal Husbandry and Fisheries, Govt. of Uttaranchal requesting that as he is going to be retired on 31.7.2004, therefore the charge of the Additional Director may be given to the senior most person. In the said letter, an endorsement was made by the Secretary that though in the seniority list, the petitioner is senior most but as he could not be granted promotion in the feeder cadre earlier and therefore till further orders he directed the Additional Secretary, Animal Husbandry to continue to assume the charge of Additional Director, Animal Husbandry in stop gap arrangement. This endorsement could not be a Government Order rather a Government Order was issued on 31.07.2004 by which the charge of Additional Director was given to Smt. Damayanti Dohrey, Additional Secretary of Animal Husbandry, Fisheries & Dairy Dept, Govt. of Uttaranchal by way of additional charge and the post is lying vacant. 6. Learned standing counsel submitted that since the seniority list has not been finalized and it is only tentative one, therefore, the petitioner cannot claim any right to be considered for promotion on the post of Additional Director till the seniority list is not finalized. Learned counsel for the petitioner submitted that seniority would be relevant only when the Rule is seniority to the rejection of the unfit. Here, the post of Additional Director is to be filled up strictly on merit and petitioner being eligible as per seniority list falls within the zone of consideration. The fact that the petitioner falls within the zone of consideration is strictly refuted by the learned standing counsel and he submitted that the 7 petitioner is the Chief Veterinary Officer and he is not even the Deputy Director or the Joint Director, therefore, he cannot claim to have come within the zone of consideration. 7. Learned counsel for the petitioner submits that the petitioner has wrongly been denied promoted on the post of Deputy Director as well as on the post of Joint Director on account of his wrong placement in the seniority list. The Rule relating to promotion on these posts are seniority subject to rejection of unfit. There is nothing on record to hold the petitioner unsuitable for promotion on these posts notionally and then to give the final promotion to the petitioner on the post of Additional Director. On account of change of placement in the seniority list the aforesaid submission has been made. 8. We find force in the contention of learned counsel for the petitioner. Since the petitioner has been placed at Sl. No.9-A of the Seniority List in compliance of the order passed by the Division Bench of Allahabad High Court, therefore though it is termed as tentative but is acquires the nature of the final seniority list. Therefore, the Respondent authorities are directed to consider the case of the petitioner, if he is otherwise eligible, on the posts of Deputy Director, thereafter on the post of Joint Director and thereafter on the post of Additional Director (now redesignated as Director) within a period of three months from the date of production of certified copy of this order. 9. The petition is allowed accordingly. No order as to costs. (B.C. Kandpal, J.) (P.C. Verma, J.) Rajeev Dang