Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 23 of 2005 (S/B) Arjun Singh S/o Sri Kunwar Singh At present posted as Joint Secretary Drinking Water & Medical & Family Welfare Department, Secretariat (Uttaranchal) Dehradun, District Dehradun. ...…………. Petitioner Versus 1. State of Uttaranchal through Chief Secretary Dehradun, District Dehradun. 2. Secretary, Secretariat Administration Department, Govt. of Uttaranchal, Dehradun, District Dehradun. 3. Secretary, Karmik Vibagh, Government of Uttaranchal, Dehradun, District Dehradun. 4. Sri T.K. Pant at present posted as Joint Secretary Public Works Department, Secretariat, Government of Uttaranchal, Dehradun District Dehradun. 5. Sri Rajender Prasad Phularia at present posted as Joint Secretary Chief Minister Secretariat, Government of Uttaranchal, Dehradun, District Dehradun. 6. Sri R.C. Lohani at present posted as Joint Secretary Karmik, Secretariat, Govt. of Uttaranchal Dehradun, District Dehradun. 2 ...…………. Respondents Mr. L.P. Naithani, Sr. Advocate, assisted by Mr. Sanjay Bhatt, Advocate, present for the petitioner. Mr. B.K. Gupta, Addl. Advocate General, present for respondents No. 1, 2 and 3. Mr. Vipul Sharma, Advocate, present for respondents No. 4 and 5. Mr. Manoj Tiwari, Sr. Advocate, assisted by Mr. Alok Mehra, Advocate, present for respondent No. 6. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble V. K. Bist, J. Per: Hon. Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of mandamus directing the respondents No. 1 to 3 to hold meeting of Departmental Promotion Committee (for short DPC) to fill one vacancy of Addl. Secretary created vide Government Order dated 09.11.2004. A further mandamus has been sought directing that only the candidate who had permanent status on the post of Joint Secretary as on 01.07.2004, be considered by the DPC. By way of amendment, writ in the nature of certiorari has also been sought quashing the order dated 28.04.2005, passed by Principal Secretary, Government of Uttarakhand, whereby it is clarified that if a candidate belonging to Scheduled Caste / Scheduled Tribe is due for promotion on the post on his merit, he shall not be 3 denied promotion on the ground that post available was not reserved for such category. However, it is also clarified in said order that if in case of non-selection promotional matters, the clarification shall not apply. 2) Heard learned counsel for the parties and perused the affidavits, counter affidavits and rejoinder affidavits filed on their behalf. 3) Brief facts of the case, as pleaded in the writ petition, are that petitioner Arjun Singh, respondent No. 4 T.K. Pant, respondent No. 5 Rajender Prasad Phularia, and respondent No. 6 R.C. Lohani were appointed Upper Divisional Assistants (UDA) through U.P. Public Service Commission in the year 1982, and joined their services in the Uttar Pradesh Secretariat. It is admitted in the writ petition that respondents No. 4 to 6 were senior to the petitioner (who belonged to the category of Scheduled Tribe). The petitioner as well as respondents No. 4 to 6 were promoted to the post of Section Officer w.e.f. 24.01.1997, and retained their seniority as they had in the cadre of UDA. In paragraph No. 4 of the writ petition it is mentioned that respondent No. 4 with placement in the seniority list at Sl. No. 137, respondent No. 5 at Sl. No. 174, and petitioner at Sl. No. 221, got promoted as Under Secretary w.e.f. 14.02.1997, but respondent No. 6 with original seniority at Sl. No. 202, got promoted on 03.11.1998. As such, it is also admitted in the writ 4 petition that respondent No. 4 and respondent No. 5 were senior to the petitioner as even as Under Secretary. However, vide order dated 20th of April 1999 (copy Annexure –2 to the writ petition) the petitioner got appointed as Deputy Secretary prior to respondents No. 4 to 6, who were appointed Deputy Secretary vide order dated 02.08.2001. Each one of the four officers got confirmed on completion of their probation period of one year on the post of Deputy Secretary. It is also admitted in the writ petition that petitioner got promoted prior to respondents No. 4 to 6, as he belong to the category of Scheduled Tribe and the roster applicable for promotion, provided him that opportunity. After the creation of State of Uttarakhand w.e.f. 09.11.2000, petitioner as well as respondents No. 4 to 6 opted for the new State. At that stage, petitioner was Deputy Secretary, while respondents No. 4 to 6 were Under Secretaries. But, w.e.f. 02.08.2001, all the four again were on the same cadre of Deputy Secretary. Vide Government Order dated 30.05.2001, four posts of the Joint Secretaries were created for the Secretariat services. Against said four posts, two were held by Mr. Kishan Nath and Mr. Mohan Lal Tamta vide order dated 02.08.2001, and by the same order the third post was filled by promotion of the petitioner Arjun Singh. It is pleaded in the petition that petitioner performed his duties to the full satisfaction of his superiors, and got confirmed on the post of Joint Secretary vide order dated 09.10.2002, on completion of period of six 5 months. Later, on 21.02.2004, respondent No. 4 T.K. Pant and respondent No. 5 Rajender Prasad Phularia were also promoted to the post of Joint Secretary, and they got confirmed vide order dated 02.12.2004, on completion of period of six months of probation (on the post of Joint Secretary). Admittedly, the services of the petitioner and respondents No. 4 to 6 were governed by U.P. Secretariat Service Rules 1983 (for short Rules of 1983), as the State of Uttarakand had not framed any rules of its own. The petitioner’s case is that vide Government Order dated 09.11.2004, two posts of Addl. Secretary (earlier the post used to be known as Special Secretary) were created for the Secretariat services. Vide order dated 22.12.2000, it was already clarified that post of Special Secretary mentioned in the Rules is re-designated as Addl. Secretary. Relying on Rule 5 of the Rules of 1983, it is pleaded by the petitioner that the post of Addl. Secretary (earlier known as ‘Special Secretary’) was to be filled by way of promotion from amongst the permanent Joint Secretaries. Quoting Rule 7 and Rule 3(g) of the Rules of 1983, it is pleaded by the petitioner that number of vacancies required to be filled during the year of recruitment were to be determined by the Appointing Authority and ‘year of recruitment’ means 12 months period commencing from first day of July of the calendar year. As such, for the recruitment year of 2004-05, the year of recruitment stood commenced from first of July 2004. Alleging that the post of Addl. 6 Secretary created on 09.11.2004 was the vacancy for the year 2004-05, it is pleaded by the writ petitioner that the candidates were required to fulfill the condition for promotion as on 01.07.2004, as clarified in Para 19 of the Government Order dated 23.06.2003. On its basis it is further pleaded that it was only the petitioner who fulfilled the condition for promotion to the post of Addl. Secretary on 01.07.2004, and the status of respondent No. 4, respondent No. 5 and respondent No. 6 was that of the Joint Secretaries, who were not permanent, as they had not completed six months probation period on 01.07.2004. On this ground the relief of mandamus sought by the writ petitioner that the DPC should consider the case of the petitioner for promotion to the post of Addl. Secretary, and that the respondents No. 4 to 6 who were senior to him in the initial cadre should not be treated eligible for the post. 4) In the counter affidavit filed on behalf of respondents No. 1, 2 and 3 it is denied that case of petitioner’s promotion under reserved category prior to his seniors (respondents No. 4 to 6), the petitioner became senior to him for his consideration to the post of Addl. Secretary. Referring to Rule 6 of Uttaranchal Government Servants Seniority Rules 2002, it is stated in the counter affidavit filed on behalf of respondents No. 1, 2 and 3 that where the promotion were made from a single feeding cadre, the seniority inter se of the persons so appointed shall be same as it was in the 7 feeding cadre. It is further stated in said counter affidavit that Rule 13 of U.P. Secretariat Service Rules 1983, which was adopted in the State of Uttarakhand, provides that the seniority of the persons on the promotional post shall be same as they held in their feeding cadre from which they were promoted. In reply to the plea taken by the writ petitioner that only the permanent Joint Secretaries were to be considered for the promotion to the post of Addl. Secretaries, respondents No. 1, 2 and 3 in their counter affidavit pleaded that it was not required that they should have been made permanent on the first date of recruitment year (in the present case 01.07.2004). Rather, relying on Sub Rule (2) of Rule 5 of the Rules of 1983, it is pleaded that the said Sub Rule clearly provides that if a junior person is included in the field of eligibility his senior shall also be included notwithstanding the fact that such person had not put in requisite period of service. As such, the respondents No. 4 and 5 were also required to be considered with the petitioner for promotion to the post of Addl. Secretary. As to the respondent No. 6, it is pleaded in the counter affidavit filed on behalf of respondents No. 1, 2 and 3 that he was yet to be confirmed as Joint Secretary, on the date the counter affidavit was filed on 15th March 2005. In paragraph No. 16 of the counter affidavit it is pleaded that on 02.02.2005, DPC recommended promotion of Mohan Lal Tamta (a member of Scheduled Caste whose seniority was not in question against post 8 reserved for said category). As to the promotion of the petitioner, it was felt necessary by the State Government to seek clarification from the Government of India that if he (who is member of Scheduled Tribe) is to be considered for the promotion to the post of Addl. Secretary belonging to General category. 5) In the counter affidavit filed on behalf of respondents No. 4 and 5 it is pleaded that in view of Rule 5(2) of the Rules of 1983, the petitioner cannot seek mandamus to consider his case leaving admittedly senior officers to him. It is denied that the answering respondents are not permanent Joint Secretaries. 6) In the counter affidavit filed on behalf of respondent No. 6 referring to Rule 5 of the U.P. State Government Servants Confirmation Rules, it is pleaded that confirmation is not necessary if a government servant is promoted on a regular post after following the prescribed procedure. It is further stated in the counter affidavit of respondent No. 6 that it was only for the reasons that petitioner was member of Scheduled Tribe he got further promotion ahead of answering respondent No. 6, who was admittedly senior to him and all were allocated State of Uttarakhand, after creation of the new State. Alleging that the petitioner’s promotion to the post of Joint Secretary was an arbitrary promotion, it is pleaded by the answering 9 respondent No. 6 that he (petitioner) cannot get benefit of inequity created by such promotion. 7) In the additional counter affidavit filed on behalf of respondents No. 1, 2 and 3, copy of the provisional promotion order of the petitioner is annexed, which appears to have been passed in compliance of the interim order dated 19.05.2005, passed by this court in this writ petition. 8) In the rejoinder affidavits filed on behalf of the petitioner, in substance the pleas taken in the writ petition are reiterated. 9) In the affidavit dated 25th February 2011 filed on behalf of the State an attempt has been made to reply the query made by this court in its order dated 07.12.2010 in this petition, stating that the four posts of Joint Secretary created vide order dated 30th May 2001 were permanent in nature, while the remaining four posts of Joint Secretary created vide order dated 09.11.2004 were created temporarily (Principal Secretary, Secretariat Administration, Government of Uttarakhand, who appeared in response to the order dated 28.02.2011 to explain the nature of posts of Joint Secretary created under the aforesaid two Government Orders, stated before us that the earlier four posts were permanent in nature and the last four posts of Joint Secretary though temporary but continuing 10 indefinitely). It is also stated in this affidavit that promotion of respondents No. 4 and 5 was against the permanent posts of Joint Secretaries. As to respondent No. 6 R.C. Lohani and one Tikam Singh Panwar it is stated that their promotion to the posts of Joint Secretary was also regular in nature subject to their allocation to the State of Uttarakhand. 10) Before further discussion we think it just and proper to refer the relevant provisions of rules applicable to the case. Rule 5 of the U.P. Secretariat Service Rules 1983, provided that the post of Special Secretary shall be filled by the promotion from amongst permanent Joint Secretaries (There is no dispute relating to the fact that in the State of Uttarakhand the post of Special Secretary has been re-designated as Addl. Secretary). Rule 9 of said Rules provides that recruitment to the post of Under Secretary, Deputy Secretary and Joint Secretary shall be made on the basis of seniority subject to the rejection of unfit, and to the post of Special Secretary (re-designated as Addl. Secretary in Uttarakhand) the appointment shall be made on the basis of merit through Selection Committee. In the ‘Explanation’ to sub Rule (2) of Rule 9 it is provided that ‘number of vacancies’ means the total number of substantive temporary or officiating vacancies existing at the commencement of or likely to occur during the year of recruitment. Sub Rule (5) of Rule 9 further provides that Selection Committee shall 11 prepare a list of selected candidates in accordance with the procedure laid down in the order of the Government in force at the time of recruitment and forward the same to the appointing authority. Clause (g) of Rule 3 of the Rules provides that ‘year of recruitment’ shall be period of twelve months commencing from first day of July of a calendar year. Sub Rule (2) of Rule 5 of the Rules provides that if a junior person is included in the field of eligibility his senior shall also be included notwithstanding the fact that he himself has not put in requisite period of service. 11) It is pertinent to mention here that where rules make specific provision relating to seniority, a Government Order providing roster for appointment for different classes of reservation simply facilitates inflow of different category of candidates (General, O.B.C., S.C., S.T. etc.) in the service without affecting the inter se seniority which is governed by the seniority rules. In the present case, admittedly, under the Rules of 1983, seniority is to be determined as provided in Rule 13 of the U.P. Secretariat service Rules 1983, which further provides that inter se seniority of persons in any category of posts shall be same as it was in the cadre from which they were promoted. That being so, since admittedly, respondents No. 4 to 6 were senior to the petitioner, as such, their seniority remained undisturbed. However, for the purposes of promoting a person to the post of Addl. Secretary as per the Rule 5 12 of the aforesaid rules, the candidates were required to fulfill the eligibility. 12) Admittedly, petitioner and respondents No. 4 to 6 were recruited as UDAs in the year 1982, and petitioner was junior to the rest of the three. It is also not disputed that petitioner belonged to the category of Scheduled Tribe, and got promotion to the post of Deputy Secretary ahead of his seniors. But to that stage there was no grievance either to the respondents or to the petitioner. Cause of dispute appears to have arisen when the petitioner was promoted as Joint Secretary which was not reserved for Scheduled Tribe. It is also clear from the affidavits filed by the parties that respondents No. 4 to 6 were also promoted to the post of Joint Secretaries and out of them respondents No. 4 and 5 were promoted to said post on 02.02.2004 and confirmed in December 2004. As on 01.07.2004, they were also Joint Secretaries, but they had not completed the probation period, while the petitioner had already completed the same. The argument advanced on behalf of the petitioner is that since the respondents No. 4 to 6 were not permanent Joint Secretaries on 01.07.2004, as such only the case of petitioner should have been considered by the DPC for promotion to the post of Addl. Secretary. Having considered said argument advanced on behalf of the petitioner, we are of the view that since it has come in the affidavit of State 13 Government that promotion of respondents No. 4 and 5 was also against permanent vacancies, as such, on completion of their probation period in December 2004, they stood permanent Joint Secretaries w.e.f. 02.02.2004. In view of Sub Rule (2) of Rule 5 of the Rules of 1983, which provides that if a junior person is included in the field of eligibility his senior shall also be included notwithstanding the fact that such person had not put in requisite period of service, we are of the opinion that the stand taken by the petitioner cannot be accepted that it was only he who should have been considered by the DPC for promotion to the post of Addl. Secretary, particularly, when the respondents No. 4 and 5 were admittedly senior to the petitioner. It is pertinent to mention here that during the pendency of this writ petition, in compliance of interim order of this court, the petitioner has provisionally been promoted to the post of Addl. Secretary in the year 2005, and thereafter in the year 2007, against the other two vacancies of Addl. Secretaries respondents No. 4 and 5 have also been promoted to said posts. While, we do not want to disturb their provisional promotions, we are of the view that the Selection Committee / DPC is required to consider case of all the three (petitioner, respondent No. 4 and respondent No. 5) eligible candidates whose appointment to the post of Joint Secretary stood permanent on 01.07.2004, as discussed above. As far as respondent No. 6 is concerned, as he was promoted on the post of Joint Secretary only on 14 11.12.2004 (i.e. after 01.07.2004) as such, he was not eligible for promotion to the post of Addl. Secretary in the year 2004-05. As such the case of respondent No. 6 may come for promotion in the vacancy if any for subsequent year or thereafter. 13) As far as the order dated 28.04.2005 is concerned, it simply contains the clarification made by the Government of India relating to the entitlement of promotion of the members belonging to Scheduled Castes and Scheduled Tribes whose promotion is due on merits against post which is not reserved for said community. There is nothing illegal in the clarification which violates any constitutional provision as it simply provides that where such candidate on his own merit stands for promotion, he cannot be denied his promotion only on the ground that the post is not reserved for that community. Paragraph No. 3 of the Clarification further provides in the order, challenged by amending the petition, that in the cases of non- selection promotions i.e. seniority-cum-unfit, the clarification given in Paragraphs No. 1 and 2 have no application for the simple reason that the promotion of the person would be decided on the basis of seniority- cum-unfit. 14) Accordingly, the writ petition is disposed of with the following directions:- 15 i) The Committee constituted under U.P. Secretariat Service Rules 1983 for the promotion to the post of Addl. Secretary shall consider cases of the petitioner as well as that of respondent No. 4 and respondent No. 5 for their promotion to the post of Add. Secretary meant for Secretariat staff in the year 2004-05. ii) The provisional promotions made of the petitioner and respondents No. 4 and 5 shall remain undisturbed till the decision of the Committee constituted under the Rules, for the promotion to the post of Addl. Secretary in the matter. iii) No recovery of the salary already paid to the petitioner and respondents No. 4 and 5 for the post of Addl. Secretary shall be made. iv) We do not find any illegality in the Government Order dated 28.04.2005, and as such, the relief in respect thereof stands declined. (V.K. Bist, J.) (Prafulla C. Pant, J.) Dt. March 16, 2011. H. Negi