IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (SB) No. 200 of 2009 Dr. Yashwant Singh Bisht …Petitioner. Versus Chief Secretary, State of Uttarakhand, Dehradun and others. …Respondents. Present:- Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. G.D. Joshi, Advocate for the petitioner. Mr. B.D. Upadhyay, Addl. Advocate General for the State of Uttarakhand/respondent nos. 1 to 4 & 6. Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Sudhanshu Dhulia, J. Barin Ghosh, C.J, (Oral) 1. In the year 2007, two posts of Director of Medical Health fell vacant. In terms of Rule 8 of U.P. Medical Health (Group-A) Service Rules, 1990 as amended in 1998, merit is the sole consideration for promotion to the post of Director. At the same time in terms of Rule 4 of Uttarakhand Government Servants (Criterion for Recruitment by Promotion) Rules 2004, the posts of Director can be filled up by promotion from the feeder posts of Additional Directors, who have the eligibility for being so promoted as provided in the said Rules. On 16.4.2003, the Government by an order prescribed the procedure of selection on the basis of merit. In the said order, it was provided that in order to ascertain merit, the ACRs of the persons, being considered for promotion, for the entire length of service shall be considered with special attention to the last ten years. It further provided that while considering the ACRs ‘very good’, ‘good’ and ‘unfit’ remarks shall have significance. For the said two posts, names of ten Additional Directors were submitted for consideration. The names of petitioner as well as of respondent no. 5 were included in the names of those ten Additional Directors. Thereafter, on 14.7.2008, 2 respondent no. 5 and one Dr. Chandra Prakash Arya were promoted as Directors. Dr. Chandra Prakash Arya was promoted to the post of Director reserved for scheduled caste candidates. Respondent no. 5 was promoted to the post of Director, to which any candidate could be promoted. In a claim petition filed before the Tribunal, petitioner contended that he had better merit than respondent no. 5 and accordingly selection of respondent no. 5 for being promoted to the post of Director available for open merit candidates was inappropriate. The Tribunal by its judgment and order impugned in the present writ petition considered the Rules as mentioned above, and came to the conclusion that the merit of the petitioner as well as respondent no. 5 were equal and in terms of the said order dated 16.4.2003, if the merit of two candidates is equal, then the senior will be chosen and accordingly upheld the selection of respondent no. 5. 2. In the present writ petition, it is the contention of the petitioner that on the findings of the Tribunal, the petitioner had better merit and accordingly question of applying that part of the order dated 16.4.2003 suggesting senior to be given promotion in case merits are same did not arise in the instant case. 3. The facts, to which there appears to be no dispute, are that the entire service records of the candidates had not been considered and even if considered, the same has not come on record. The fact further remains that only last ten years’ service records of the candidates had been considered, but inasmuch as, ACR of one year of respondent no. 5 was not available, ACRs of nine years of respondent no. 5 had been considered. There is no dispute that out of those nine years, respondent no. 5 got 3 ‘good’ in one year and in the remaining years, she obtained either ‘excellent’ or ‘very good’. The Tribunal proceeded on the footing, as is also the contention of the respondents, that inasmuch as the Government Order dated 16.4.2003 mentioned ‘very good’ ‘good’ and ‘unfit’, ‘excellent’ remarks were to be taken as ‘very good’. The petitioner, however, in none of those ten years obtained a ‘good’. He obtained either ‘excellent’ or ‘very-good’. He also obtained more excellent than the respondent No. 5. Therefore, on the basis of the parameter laid down in the Government Order dated 16.4.2003, the petitioner could not be equated with respondent no. 5 and accordingly question of applying that part of the order dated 16.4.2003 that in the event of adjudgment of equal merit, the senior will get preference does not apply. The selection of respondent no. 5 in the above background therefore is malafide, without any just reason and requires to be rectified. 3. Respondent no. 5 has been served but has chosen not to contest the writ petition. 4. We, accordingly, for the reasons as stated above, quash the promotion order dated 14.7.2008, whereby respondent no. 5 had been promoted to the post of Director of Medical Health. Having come to the conclusion that the petitioner had better merit than respondent no. 5 and taking into account the fact that the petitioner has since retired on attaining the age of superannuation, we direct the respondents to treat the petitioner to have been promoted to the post of Director of Medical Health on and from 14.7.2008. Let remuneration payable to the petitioner for being entitled to hold the post of Director of Medical Health since 14.7.2008 until the date of his retirement less 4 remuneration already paid to him be released to him and his pension and other retirement dues be calculated and paid to him as quickly as possible but not later than three months from the date of service of a copy of this order upon respondent no. 3. 5. We were minded to impose exemplary cost in the matter, but some how we have restrained ourselves from doing so. (Sudhanshu Dhulia, J.) (Barin Ghosh, C.J.) 05.10.2010 Rathour