HIGH COURT OF UTTARAKHAND AT NAINITAL. Writ Petition no. 5571 of 2001 (S/S) (Old No. 33383/1997) Krishna Avtar Sharma. ----Petitioner. Vs. Engineer in Chief, Irrigation Department, Lucknow And six others. ----Respondents. Mr. S.S. Yadav, Advocate for the petitioner, Mr. H.M. Raturi, Standing Counsel for the State, Dated: September 7, 2009. Hon’ble V.K. Bist, J. Present petition has been filed by the petitioner for the following reliefs:- a. “To issue a writ of certiorari or other suitable writ, order or direction calling for the record concerning the order dated 11/16.07.1997 passed by respondent no. 3 (contained in annexure no. 1 to the writ petition) and order dated 11.07.1996 (contained in annexure no. 6 to this writ petition) and to quash the same; b. To issue a writ of mandamus or other suitable writ, order or direction commanding the respondent nos. 1,2,3 & 4 either to promote the petitioner or consider petitioner’s promotion for the post of Seench Paryavekshak and subsequent promotions prior to promotion of respondent nos. 5, 6 & 7 and petitioner may be ordered to be placed senior to respondent nos. 5 to 7 in seniority list; c. In addition to or in substitution thereof the above reliefs any other suitable writ, order or direction may kindly be issued in favour of the petitioner for which he may be found entitled to in the facts and circumstances of the case and fitness of things. d. To award costs.” 2. Brief facts of the case are that petitioner was initially appointed in the Irrigation Department on 25.01.1975. Consequent upon completion of 6 years’ service as ‘Seenchpal’ and on completion of more than 16 years’ 2 service as such, he was given selection grade and thereafter promotional pay scale. It is averred in the writ petition that in the year 1993 a seniority list of ‘Seenchpal’ was prepared on 13.12.1993 at the level of Chief Engineer, (North), Irrigation Department in which the petitioner was placed at Sl. No. 9, while the respondents Harnarayan Lal, Ram Kishore Singh and Shasthi Ballabh were placed at Sl. No. 4, 16 and 31 respectively. Contrary to it another seniority list of ‘Seenchpal’ purported to be of Rudrapur Division was prepared on 27.04.1997 wherein the petitioner is shown at Sl.No. 11, respondent Harnarayan Lal was shown at Sl. No. 16, Ram Kishore Singh was shown at Sl. No. 1 in the category of Scheduled Tribe and the respondent Shasthi Ballabh was shown at Sl. No. 53. It is further stated that the promotions to the post of ‘Amin’/‘Seench Paryavekshak’ are regulated by Irrigation Department Amin Service Rules, 1954 and for making promotion to the post of ‘Seench Paryavekshak’ from the post of ‘Seenchpal’ an examination is to be passed by an incumbent but without conducting any examination vide order dated 09.06.1993 eight persons, including the petitioner, were directed to appear in the selection on the post of ‘Seench Paryavekshak’. The grievance of the petitioner is that in case examination for promotion to the post of ‘Seench Paryavekshak’ would have taken place timely, the petitioner would have been promoted to the post of ‘Seench Paryavekshak’ much earlier and after completion of 5 years of service on that post he would have been prom0ted as ‘Ziledar’. In the present petition the petitioner is aggrieved with the promotion order dated 11/16.07.1997 and order dated 11.07.1996 by which the respondent nos. 5, 6 & 7 were promoted as ‘Seench Paryavekshak’. 3 3. Heard Mr. S.S. Yadav, learned counsel for the petitioner and Mr. H.M. Raturi, learned Standing Counsel for the State/respondents and perused the entire material available on record. 4. Learned counsel for the petitioner Mr. S.S. Yadav argued that as per the seniority list issued by the Chief Engineer, (North), Irrigation Department the respondent nos. 5, 6 & 7 are junior to the petitioner and in view of this factual aspect the promotion given to respondent nos. 5, 6 & 7 on the post of ‘Seench Paryavekshak’ is wholly discriminatory and deserves to be set-aside. He further submitted that petitioner being senior to respondent nos. 5, 6 & 7 is entitled for promotion with effect from the date it was granted to respondent nos. 5,6 & 7. 5. The respondent nos. 2 to 4 have filed their joint counter affidavit and supplementary counter affidavit in which they denied the contention of the petitioner. In paragraph-4 of the counter affidavit the respondent nos. 2 to 4 have specifically denied that persons junior to the petitioner have been promoted by the respondents. In paragraph-8 of the counter affidavit the respondent nos. 2 to 4 denied that seniority list dated 13.12.1993 was issued by the Chief Engineer (North), Irrigation Department. According to respondent nos. 2, 3 & 4 the said list was issued by the Executive Engineer, Irrigation Division, Rudrapur. Refuting the averment by which the petitioner has contended that in the year 1993 a seniority list of ‘Seenchpal’ was prepared on 13.12.1993 at the level of Chief Engineer, (North), Irrigation Department in which the petitioner was placed at Sl. No. 9, while the respondents Harnarayan Lal, Ram Kishore Singh and 4 Shasthi Ballabh were placed at Sl. No. 4, 16 and 31 respectively, the respondents have come up with the categorical contention that the seniority list was prepared by Executive Engineer, Irrigation Division, Rudrapur and not by the Chief Engineer, (North), Irrigation Department. In paragraph-4 of the supplementary counter affidavit dated 9th October, 2006 a categorical averment has been made by the respondents whereby it is stated that the date of appointment of respondent no.5 is 30.05.1974 and the date of appointment of respondent no.6 is 30.06.1961 and they are seniors to the petitioner. The fact regarding seniority of the respondent nos. 5,6 & 7 has again been reiterated in paragraph-4 of the supplementary counter affidavit dated 09.10.2006. In support of their contention, the respondents have also annexed the final seniority list of ‘Seenchpals’. Paragraph nos. 4 & 8 of the counter affidavit and paragraph no. 4 of the supplementary counter affidavit are quoted hereunder:- Paragraph-4 of the counter affidavit-“That the contents of para-2 of the writ petition, as stated are denied. In fact, the respondent nos. 5 and 6 have been promoted by the respondent no.3 in compliance of the order No. 1884/Sikam/R-4 dated 05.04.1997 and 5746/Sikam/R-4 dated 07.07.1997 of the respondent no. 2 i.e. Superintending Engineer, Irrigation Works Circle, Nainital, in which Sri Harnarayan Lal i.e. respondent no. 5 is senior then petitioner and Sri Ram Kishore Singh i.e. respondent no.6 is of schedule tribe. Sri Khasthi Ballabh, Seenchpal, who is appointed on dated 09.01.1989 has not been promoted, while Sri Shasthi Ballabh Kothari- respondent no.7 has been promoted, whose date of appointment is dated 30.12.1973, therefore, it is incorrect and misleading to state that persons junior to petitioner has been promoted by the respondents.” Paragraph-8 of the counter affidavit-“That in reply to the contents of para-6 of the writ petition, it is stated that the petitioner has stated that the 5 seniority list prepared by the Chief Engineer, North is correct, while the said list was not prepared by the Chief Engineer, North, but is prepared by Executive Engineer, Irrigation Division, Rudrapur on the basis of same list, those who were given promotion, except those are in reservation quota, are still working as Seenchpal and they are in waiting list.” Paragraph-4 of the supplementary counter affidavit- “That the contents of para-5 of the supplementary affidavit, as stated are misconceived, erroneous, hence denied. It is stated that the date of appointment of Sri Har Narayan Lal, respondent no.5 as per his service book is dated 30.05.1974, as stated earlier in para-6 of the counter affidavit. The seniority list prepared at the circle level, the name of Sri Harnarayan Lal, Seench Paryavekshak was shown at serial no. 16 due to his date of appointment wrongly mentioned dated 30.05.1977, while his actual date of appointment as per service book is dated 30.05.1974. Sri Ram Kishore, who was retired from the service on dated 31.03.1997, was appointed as Seenchpal dated 30.06.1961 in regular establishment and from dated 19.09.1981 he had worked as Seench Paryavekshak. Another Ram Kishore Rana was appointed on dated 21.11.1981, his date of birth is 10.01.1952 as per service record and he will be retired on dated 31.10.2012. The said orders of promotion was stayed on dated 11.04.1997 by Irrigation Work Circle, Nainital and on dated 07.07.1997, the said order had been cancelled. Mr. Shashi Ballabh Kothari was posted on the post of Seench Paryavekshak from dated 14.09.1990, the Superintending Engineer, Irrigation Work Circle, Nainital had requested to Chief Engineer (North), Haldwani to retained him to his original division at Ranikhet vide his letter dated 18.10.1996.” 6. Thus, it is established that the respondent nos. 5 & 7 are seniors to the petitioner and respondent no. 6 was promoted under the Scheduled Tribe category. Since the petitioner is not senior to the respondent nos. 5 & 7 and the respondent no.6 belongs to the Scheduled Tribe category, their promotion cannot be set-aside on the behest of petitioner. 6 7. In view of the foregoing discussion the writ petition is dismissed. No order as to costs. (V.K. Bisht, J.) 07.09.2009 NCM: