IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. (SS) of 1227 of 2010 Bhola Nath ….Petitioner Versus State of Uttarakhand and others. ..Respondents Present : Mr. Rahul Consul, Advocate holding brief of Mr. Asif Ali, Advocate for the petitioner. Mr. Anil Bisht, Brief Holder for the State of Uttarakhand. Sudhanshu Dhulia, J. (Oral) Heard Mr. Rahul Consul, Advocate holding brief of Mr. Asif Ali, Advocate for the petitioner and Mr. Anil Bist, Brief Holder for State of Uttarakhand. The petitioner is a Fire Officer in Uttarakhand Fire Department. He is challenging the promotion of the respondent no.5 as Chief Fire Officer. The principal contention of the petitioner is that whereas the petitioner was appointed on 22.12.1971 as a Fireman, respondent no.5 was appointed as Fireman on 1.10.1971. Nevertheless the petitioner was promoted to the next post of Fire Officer on 21.10.2002 whereas respondent no.5 was promoted as Fire Officer on 3.7.2004 i.e. after the petitioner. The petitioner in other words claimed seniority over respondent no.5. He further relies upon rules known as Uttaranchal Government Servants (Criterion for Recruitment By Promotion) Rules, 2004 whereby a government servant is to be promoted from non-gazetted post to gazetted post the only basis would be seniority subject to rejection of unfit. What is presently at stake is the promotion to the post of Chief Fire Officer, where both the petitioner as well as respondent no.5 are candidates. According to the State, the promotion to the post of Chief Fire Officer from Fireman is made only in view of Rule 16 of U.P. Fire (Gazetted Officer) Service Rules, 1984, which reads as follows: “Rule 16. Procedure for recruitment by promotion to the post of Director, Joint Director and Chief Fire Officer – Recruitment by promotion to the post of Director and Joint Director shall be made on the basis of seniority, subject to the rejection of unfit and to the post of Chief Fire Officer on the basis of merit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with the Public Service Commission (Procedure) Rules, 1970 as amended from time to time.” According to the aforesaid rules, promotion to the post of Chief Fire Officer is to be made on the basis of seniority and merit. Learned counsel for the State further contends that irrespective of the Rules relied upon by the respondents what will prevail in the present case is U.P. Fire (Gazetted Officer) Service Rules, 1984 on the principle of special overriding the general. Indeed in the present case what would be applicable are U.P. Fire (Gazetted Officer) Service Rules, 1984 and not Uttaranchal Government Servants (Criterion for Recruitment By Promotion) Rules, 2004. The only contention of the petitioner is that he is senior to respondent no. 5 is not applicable inasmuch as respondent no.5 was appointed prior to the appointment of petitioner. It is true that the petitioner had become Fire Officer prior to respondent no.5 and respondent no.5 became Fire Officer on 3.7.2004, but then he would regain his seniority as prescribed under the seniority rules. Reference is being made here to the U.P. Government Servants Seniority Rules, 1991 which are presently applicable in the State of Uttarakhand as well. Rule 6 of the said Rules reads as follows:- “6. Seniority where appointments by promotion only from a single feeding cadre.- Where according to the service rules, appointments are to be made only by promotion from a single feeding cadre, the seniority inter se of persons so appointed shall be the same as it was in the feeding cadre. Explanation.- a person senior in the feeding cadre shall, even though promoted after the promotion of a person junior to him in the feeding cadre shall, in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre.” Therefore the explanation of the aforesaid rule makes it clear that though respondent no.5 was promoted later than petitioner as Fire Officer, yet the moment he is promoted to the next higher post he would regain his seniority of the feeding cadre and it is undisputed that in the feeding cadre respondent no.5 was senior to the petitioner. As such even on the basis of seniority, respondent no.5 would be senior to the petitioner. Since the only ground to challenge the promotion is that the petitioner is senior to respondent no.5 is not available to the petitioner and there is no other anomaly shown in the selection procedure, the writ petition fails and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 21.7.2011 Kuldeep