In the High Court of Uttaranchal, at Nainital Writ petition No. 363 (S/B) of 2003 1- Yogendra Pratap Singh S/o Birendra Singh At present working as Extension Horticulture, Directorate of Horticulture, Udyan Bhawan, Chaubatia, District Almora … Petitioner. Versus 1- State of Uttaranchal through Secretary, Forest & Rural Development Branch (Udyan), Uttaranchal, Dehradun. 2- Director, Horticulture and Food Processing Department, Chaubatia, Ranikhet, District Almora. 3- Deputy Director ( Head Quarter) Drawing and Disbursing Officer, Horticulture and Food Processing Deptt. Chaubatia, District Almora …… Respondents. Sri Rajendra Dobhal, Advocate for the petitioner. Sri K.P. Upadhyaya, learned S.C. for the respondents. Coram: Hon’ble P.C. Verma, J. Hon’ble B.C. Kandpal, J. Dated: 17th May, 2006. By means of this writ petition, the petitioner has prayed for a writ of certiorari quashing the impugned orders dated 19-10-2002, 7-1-2003 and 5-7-2003 (Annexures 6, 8 and 10 to this writ petition) passed by the respondents 1 and 2 respectively. The petitioner has further sought the writ in the nature of mandamus commanding the respondents to give him selection grade on the post of class-2 subordinate services in Horticulture Department in the pay scale of Rs. 10,000-15,2000 w.e.f. 28-11-1994. 2. Briefly stated the facts of the case are that the petitioner was appointed as Senior Horticulture Inspector in the pay scale of Rs. 350-700 vide order dated 20-11-1979 after due selection and recommendation by the competent authority and was posted at Government Udyan Chaubatia District Almora. On 19-12-1986 the petitioner was promoted in the pay scale of Rs. 850-1720 on class- 2 subordinate service and was posted as Extension Horticulturist, 2 Ranikhet, District Almora. He was regularized on the post of Senior Horticulture Inspector w.e.f. 1.12.1986 vide order dated 3-9-1990. After promotion the petitioner took over the charge on the post of Extension Horticulturist Ranikhet on 20-12-1986. Thereafter on 4- 2-2000 the respondent No. 1 passed an order confirming the services on the post of class-2 subordinate services of Horticulture Department in the pay scale of Rs. 8000-13500. It was also alleged that on 11-3-2002 the Addl. Secretary Uttaranchal Government issued an order sanctioning the selection grade to the employees, working in the pay scale of Rs. 8000-13500 and who have also completed 8 years continuous satisfactory service on 1.1.2001 and they were given the pay scale of Rs. 10,000-15,200 w.e.f. 28.11.1994. In pursuance of order dated 11.3.2002 the fixation of salary of petitioner in the pay scale of Rs. 3000-4500 (now revised as Rs. 10,000-15200) was made vide order dated 7.5.2002. The respondent No. 1 issued an order dated 19-10-2002 by which he modified his earlier order dated 11.3.2002 and sanctioned the selection grade to the petitioner in the pay scale of Rs. 10,0000- 15200 w.e.f. 4.2.2000. In the selection grade the petitioner was also given an increment w.e.f. 1.12.2002 and re-fixation of his pay was made. It is also stated that after refixation of salary in pursuance of the orders dt. 19-10-2002 and 7-1-2003 the respondent No.3 has passed an order on 5.7.2003 for recovery of Rs. 1,62,043/- from the petitioner. It was also alleged that the petitioner was promoted to the post of District Horticulture Officer on 19-12-1986 and according to the rules after continuous and satisfactory services of 8 years on 20-12-1994, the petitioner is legally entitled to get the selection grade in the pay scale of Rs. 10,000-15,200 w.e.f. 20-12-1994 but the respondents committed illegality in refixing the date of granting selection grade from 20- 12-1994 to 4.2.2000. Therefore, the petitioner sought relief to issue direction to the respondents to grant him selection grade in the pay scale of Rs. 10,000- 15,200 w.e.f. 28.11.1994 and the orders dated 19-10-2002, 7-1-2003 and 5-7-2003 passed by the respondents be quashed. 3 3- The respondents filed counter affidavit and stated therein that the petitioner was given regular promotion on the post of Vikas Sakha, Class-2 Subordinate services in the pay scale of Rs. 8,0000- 13500. It is wrong to state that his services were confirmed vide order dated 4.2.2000. It is also alleged that vide Government Order No. 2584/58-1-96 dated 22-8-1996 It is provided that does those employees whose services have been regularized in class-2 and who have completed 8 years continuous satisfactory service are entitled to get next pay scale of promotion as selection grade. The petitioner was regularized in service on 4.2.2000 therefore, Government has modified its earlier order dated 11.3.2002 and in compliance of said Govt. Order dated 22.8.1996, the petitioner was given selection grade from 4.2.2000. 5- The petitioner filed rejoinder affidavit reiterating the facts mentioned in the writ petition. 6- We have heard the learned counsel for the parties and perused the record. 7- The record reveals that the selection of the petitioner was made by the Departmental Selection Committee on the post of Senior Horticulture Inspector in the year 1979 and thereafter he was promoted on 19-12-1986on class-2 subordinate service and was posted as Extension Horticulture, Ranikhet District Almora. Paragraph-6 of the counter affidavit shows that the petitioner was given regular promotion on the post of Vikas Sakha, Class-2 subordinate Services in the pay scale of Rs. 8000-13,500 vide Government Order dated 4.2.2000 contained in Annexure-3 to the writ petition. The appointment of the petitioner on the post of Senior Horticulture Inspector was regularized w.e.f. 1.12.1986. There is no lapse on the part of the petitioner in delay of regularization. It is the department, which delayed the regularization of the petitioner and regularized him in the year 2000. 8- By a Government Order dated 11.3.2002 the petitioner was given selection grade on the basis of his continuous service w.e.f. 28.11.1994. 4 9- The respondent No. 1 issued an order by which the order dated 11-3-2002 was modified and the selection grade to the petitioner in the pay scale of Rs. 10,000-15,200 was sanctioned w.e.f. 4.2.2000. 10- The Government Order dated 22.8.1996 which is in Annexure C-A-1 to the counter affidavit provides that the selection grade shall be paid to the regular employee who holds the substantive post and have completed 8 years of service. This Government Order does not say that a candidate must hold the post in substantive capacity for 10 years then only he shall be paid selection grade. At the time of the grant of selection grade on 11-3- 2002 the petitioner was held in substantive capacity and since he was holding the post from 1986, therefore, he had completed 8 years of service on 28-11-1994 and as such both the conditions were fulfilled. The Government Order dated 19-10-2002 has been passed on misconception and misreading of the Government Order dated 2-3-1993 and 22-8-1996 which provides for two conditions. The first condition is that the candidate must be holding the post in substantive capacity and the second condition is that he has put in 8 years of service on that post. Now the petitioner has put in 8 years of service and prior to the regularization he was on ad-hoc basis but he continued his service uninterruptedly till his regularization and after regularization he become the substantive appointee on the post. Even in cases of reckoning of the seniority of the promotees, the regularization Rule does not prescribe any date rather it leaves for determination. Rule-7 of the U.P. Regularization of Ad-hoc Promotions (On posts within the Purview of Public Service Commission) Rules, 1988 provides that a person appointed under these Rules, shall be entitled to seniority in accordance with the relevant service rules or orders, regulating conditions of service of persons regularly appointed in the service or on the post, and for this purpose selection under these Rules shall be deemed to be selection under the said service rules or orders. 11- Therefore, in view of the aforesaid, the past service of the petitioner on ad-hoc basis, is liable to be counted for the purpose of …………………………………………………………………………. 5 and for the past service but it cannot be counted for the purpose of grant of selection grade. Hence the impugned orders under challenge, i.e., dated 19-10-2002, 7-1-2003 and 5-7-2003, contained in Annexures 6,8 and 10 to the writ petition, passed by the respondents 1 and 2 respectively are liable to be set aside. 12- Consequently the impugned orders dated 19-10-2002, 7-1- 2003 and 5-7-2003, contained in Annexures 6, 8 and 10 to the writ petition, passed by the respondents 1 and 2 respectively are set aside and the writ petition is allowed. No order as to costs. (B.C.Kandpal, J.) (P.C. Verma, J.) ISB