IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 257 of 2007 Sohan Lal ……… Petitioner. Versus State of Uttarakhand and others .………. Respondents. Mr. R.C. Tamta, Advocate for the petitioner. Mr. H.M. Raturi, Advocate for respondent Nos. 1 and 2. Mr. Vinay Kumar, Advocate for respondent No. 5. Date of Judgment: 12.05.2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) The petitioner was inducted into the service of the Finance Department as a routine grade clerk on 13.12.1974. The post of Routine Grade Clerk came to be re-designated as Head Clerk, as a consequence whereof, the petitioner was re-designated as Head Clerk w.e.f. 20.11.1987. Onward promotion from the post of Head Clerk is to the post of Assistant Treasury Officer / Sub-Treasury Officer. The petitioner came to be promoted as Assistant Treasury Officer vide an order dated 16.01.1990. Having rendered satisfactory service as Assistant Treasury Officer, the petitioner was confirmed as such by an order dated 23.09.1998. On completing 14 years of satisfactory service, the petitioner was granted the promotional pay scale of Rs. 8000-13500 w.e.f. 16.01.2004 by an order dated 21.07.2004. 2. The grievance of the petitioner emerges from the order dated 14.12.2006 by which 3 of his juniors, namely Rajendra Prasad Nautiyal, Anand Ram and Dilber Singh Bisht were promoted as Treasury Officers, ignoring the claim of the petitioner. The contention of the petitioner is, that he being senior, he ought to have been promoted as Treasury Officer at least with effect from the date his juniors were promoted as such. In order to raise his aforesaid claim for promotion, the petitioner addressed a representation to his superiors, claiming promotion with effect from the 2 date his juniors were promoted to the post of Treasury Officers. The representation made by the petitioner was rejected by an order dated 12.09.2007. 3. The instant writ petition was filed so as to impugn the promotion order dated 14.12.2006. Subsequently, it was amended to impugn even the rejection order dated 12.09.2007. 4. It is also the case of the petitioner, that persons junior to the petitioner were promoted during the pendency of the instant writ petition by two further orders. The first of which was passed on 05.06.2008. The second promotion order was passed on 28.02.2010. This action of the authorities, according to the petitioner, has caused extreme further harm to the petitioner. 5. Upon notice being issued to the respondents, various counter affidavits have been filed. In the counter affidavit filed by the Director of Treasury and Finance Service, Uttaranchal (respondent No. 2 herein), the expressed stance adopted is, that promotion to the post of Treasury Officer is regulated on the basis of merit. It is contended, that the petitioner was not meritorious enough as against his juniors, and was therefore, ignored. The instant assertions at the hands of respondent No. 2 is explicit from paragraphs 6 and 7 of the counter affidavit filed by respondent No. 2. Paragraphs 6 and 7 are accordingly being extracted hereunder: “6. That the criterion for promotion as prescribed under the aforesaid Rules is on the basis of the merit in consultation with the Public Service Commission Rules. The true copy of the Rules is being filed herewith and marked as ANNEXURE NO. C.A. 1 to this affidavit. 7. That the petitioner was not found fit for promotion consequently, the petitioner was not promoted and the other persons who fall within the field of eligibility and stood the tests of the merit were promoted.” 6. During the course of hearing, learned counsel for the petitioner invited our attention to the Uttaranchal Finance Service Rules, 2002. Reference was made to Rule 16 thereof, which is being reproduced hereunder: “16. Procedure for Recruitment by Promotion- Recruitment by promotion to the ordinary Grade in the Service shall be made on the basis of merit, in accordance with the Promotion by Selection in Consultation with the Public Service Commission (Procedure) Rules, as amended from time to time.” 3 A perusal of Rule 16 leaves no room for doubt, that promotion to the post of Treasury Officer is regulated on the sole criterion of merit. It is apparent from the reply filed on behalf of respondent No. 2 (as has been extracted hereinabove), that persons junior to the petitioner, who were promoted by the order dated 14.12.2006 had superior merits as compared to the petitioner. The instant assertion at the hands of the official respondents has not been disputed by the petitioner, in as much as paragraph 7 of the rejoinder affidavit (which constitutes the reply to paragraphs 4 and 5 of the counter affidavit filed by respondent No. 2) merely reads as under: “7. That the contents of paragraph Nos. 5 and 6 of the counter affidavit are admitted to the extend, the service of the petitioner are governed by Uttarakhand Finance Service Rules, 2002, however it is submitted that the petitioner is senior of the respondent Nos. 3, 4 & 5 and his work and conduct has been also satisfactory there is no adverse entry against him, and for the promotion his condition cannot be brushed aside arbitrarily. It an authority is allowed to use his discretion for allocation of Grades like for 3 marks excellent, 2 marks for very good and 1 marks for good are prescribed, discretion also cannot be used arbitrarily to put aside a senior. It is so it will be in absolute violation of the provisions of the article 14 and 16 of the Constitution of India.” Having not disputed the superior merit of persons junior to him, it is not possible for us to accept the superior claim of the petitioner, despite his higher position in the seniority list (of the cadre of Assistant Treasury Officer), for the promotion to the post of Treasury Officer. 7. The second contention advanced by the learned counsel for the petitioner is, that it is improper for the selecting authority to assign higher marks for a higher grade. Illustratively, it is submitted by the learned counsel for the petitioner, that it would be improper to grant 3 marks for an excellent report, as against 2 marks for very good report, and 1 mark for a good report. It is the pointed submission of the learned counsel for the petitioner, that such an action would be arbitrary, in as much as the same would have the effect of overlooking the higher seniority position of an individual eligible for promotion to the next higher post. 8. It is not possible for us to accept the second contention advanced by the learned counsel for the petitioner. In cases where merit is the criterion for onward promotion, higher grading has to be assigned higher waitage. That, in our view, would be the proper course for assigning higher marks 4 to more meritorious candidates. We, therefore, find no substance in the second contention advanced by the learned counsel for the petitioner. 9. The third contention advanced by the learned counsel for the petitioner is, that the petitioner could not be graded vis-à-vis persons from the general category. In this behalf it is submitted, that the petitioner is a Scheduled Caste candidate and his comparison could have only been made with other Scheduled Caste candidates. 10. The third contention advanced by the learned counsel for the petitioner, though attractive on first blush, has been repudiated by the learned counsel for the respondents by asserting, that Anand Ram, who was promoted by the impugned order dated 14.12.2006, also belonged to the Scheduled Caste category, and that, his grading in terms of merit was better than that of the petitioner. It is also the contention of the learned counsel for respondent Nos. 1 and 2, that the roster point assigned to Scheduled Caste candidates, while making promotions to the cadre of Treasure Officers, was duly given effect to, wherein Anand Ram came to be promoted against the roster point reserved for the Scheduled Caste candidates. Having given out thoughtful consideration to the third contention advanced by the learned counsel for the petitioner, and in the absence of any material on the record of this case to demonstrate, that the merit of the petitioner was superior to that of Anand Ram, we are satisfied, that the instant contention advanced by the learned counsel for the petitioner is also devoid of merit. 11. For the reasons recorded hereinabove, we find no merit in this petition and the same is accordingly dismissed. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 12.05.2010 12.05.2010 Amit