IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 297 of 2006 (S/B) Pooran Chandra Joshi … Petitioner Versus Union of India & Others. … Respondents Mr. Manoj Tiwari, Sr. Advocate, assisted by Mr. Alok Mehra, Advocate, for the petitioner. Smt. Beena Pande, Standing Counsel (Central Govt.), for the respondents no. 1 & 2. Date of Judgment : 6.7.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Servesh Kumar Gupta, J. BARIN GHOSH, C.J. (ORAL) Learned Counsel for the respondent no. 2 has produced a letter, received by her from the respondent no. 2, which suggests that a copy of the writ petition has been served upon the respondent no. 4. In such view of the matter, we proceed on the basis that the respondent no. 4 stands served. The letter, referred to above, is kept with the record. 2. In the writ petition, filed in 2006, petitioner challenged grant of promotion to the respondent no. 4 and non-grant of promotion to the petitioner to the post of Assistant Director (Chemistry). At that time, the petitioner was an employee of the respondent no. 2. The respondent no. 2 framed recruitment rules, and therein provided that merit-cum-seniority shall be the criterion for promotion. The case of the petitioner and the respondent no. 4 was considered by the Departmental Promotion Committee on 25.4.2006, 2 whereupon the Departmental Promotion Committee recommended promotion in favour of respondent no. 4, holding out that the respondent no. 4, having done more and better research work, is more meritorious than the petitioner. The said recommendation was accepted by the respondent no. 2, whereupon the respondent no. 2 was promoted to the post of Assistant Director (Chemistry). 3. In the writ petition, it is the contention of the petitioner that the criterion, contained in the recruitment rules framed by the respondent no. 2, that promotions will be granted on the basis of merit-cum- seniority, has been altered by the Central Government on 8.2.2002, whereby and under the criterion of selection by merit-cum-seniority have been give a go bye and the criterion of selection on the basis of seniority only has been prescribed. It is the contention that in terms of the said direction of the Government of India, an officer will be selected for being promoted on the basis of his seniority, without any supersession, provided he is fit to be promoted. It is the contention that since there is no dispute that the petitioner was senior to the respondent no. 4, unless it is the case of the respondent no. 2 that the petitioner was unfit for being promoted in accordance with the applicable rules, petitioner could not be denied promotion, for the respondent no. 4 has better merit. 4. As it appears to us, the criterion for selection stands altered and according to the altered criterion, an employee of the respondent no. 2 is entitled to be promoted on the basis of his seniority, provided he is otherwise fit. The records of the case show that the 3 Departmental Promotion Committee had fixed the benchmark of ‘good’ as the criterion for determining whether an officer is fit or unfit. It is the contention of the petitioner, which has not been denied in the counter affidavit, that the petitioner achieved the benchmark of ‘good’. Furthermore, the Central Government, as appears from Annexure 4 to the writ petition, has prescribed benchmark of ‘good’ also for the post in question, since the same entails payment of salary in the pay scale of below Rs. 12,000-16,500/-. 5. In the circumstances, we are of the view that the petitioner was entitled to the promotion, in question, which was unjustly and contrary to the rules, made by the Central Government, was given to the respondent no. 4. However, in view of the fact that the respondent no. 4 is still in service and the petitioner, having attained the age of superannuation, has retired from service during the pendency of the writ petition, it would not be appropriate on our part to interfere with the promotion granted to the respondent no. 4. 6. Having had concluded that the petitioner was entitled to the promotion, which was given to the respondent no. 4, we direct the respondent no. 2 to treat the petitioner to have been promoted on notional basis from the date, the respondent no. 4 was, in fact, promoted and to reflect the benefit of such notional promotion in the matter of calculation of the retiral benefits of the petitioner. It is made clear that in view of such notional promotion, the petitioner should be treated to be otherwise entitled to the pay scale of the notional post, increments thereto until the date he retired and, accordingly, his retiral benefits shall be 4 calculated on the basis of the pay scale, to which he would have been otherwise entitled to, but with direction to pay the same on notional basis. 7. This disposes of the writ petition. (Servesh Kumar Gupta, J.) (Barin Ghosh, C.J.) 6.7.2011 6.7.2011 Prabodh