State Of Uttarkhand & Anr vs Umakant Joshi

He was regularly promoted on that post on 23.7.2007. After two years, he was promoted as Additional Director, Industries.

4.1 In response to an advertisement issued by the Commission in 1981 for recruitment to Class-II posts in the pay scales of Rs.550-1200 and Rs.450-900, respondent No.1 applied for the post of Manager (Marketing) in the pay scale of Rs.550 - 1200. He was selected by the Commission for that post but was offered appointment on the lower post of Manager, Handloom in the pay scale of Rs.450-900. 4.2 After joining the service, respondent No.1 filed Writ Petition No.9728 of 1986 in the Allahabad High Court and prayed for issue of a mandamus for his appointment on the post for which he had applied. In compliance of an interim order passed by the High Court on 2.3.1987, respondent No.1 was appointed as Manager (Marketing) with effect from the date of initial appointment, i.e. 23.4.1984. The writ petition was finally allowed by the High Court vide order dated 1.12.1995 and a direction was issued to the State Government to give consequential benefits to respondent No.1. Thereafter, seniority of respondent No.1 was fixed among Class-II officers at serial No.48A. 4.3 While he was working as Manager (Marketing) in the Directorate of Industries, Uttar Pradesh, respondent No.1 earned adverse remarks in the Annual Confidential Reports for the years 1987-88, 1988-89, 1989-90 and 1991-92. Four departmental inquiries were also initiated against respondent No.1 between July 1996 and March 1997. These inquiries culminated in the issuance of order dated 23.1.1999 whereby punishment of reduction to the minimum of the pay scale was imposed on respondent No.1. As a sequel to this, an adverse entry was made in the Annual Confidential Report of respondent No.1 for the year 1995-96 casting reflection on his integrity.

4.5 While the representation and the writ petition filed by respondent No.1 were pending consideration, Parliament enacted the Act and the Central Government allotted the services of respondent No.1 to the new State. Thereafter, respondent No. 1 made representation dated 23.12.2000 to the Government of the new State for review of the order of punishment.

4.6 The Allahabad High Court transferred the pending writ petition to the High Court of Uttaranchal (now Uttarakhand), which disposed of the same by relegating respondent No.1 to the alternative remedy of filing an application before the State Public Services Tribunal (for short, ‘the Tribunal’).

4.7 During the pendency of the matter before the Tribunal, the Government of Uttarakhand considered the representations made by respondent No.1 and proposed that the punishment order may be withdrawn. The Governor of Uttarakhand approved the proposal. Thereafter, the State Government issued order dated 17.1.2005, which was described as an Office Memorandum for withdrawal of the order of punishment. The relevant portion of that order is extracted below:

Soon thereafter, he submitted a representation to the Government of Uttar Pradesh for promotion to the post of Deputy Director/General Manager, Industries with effect from 16.11.1989, i.e. the date on which persons junior to him were promoted. The same was forwarded to the Government of Uttarakhand, which issued an order dated 11.10.2006 and promoted respondent No.1 to Class-I post. However, his prayer for retrospective promotion was not entertained.

5. After about 2 years, respondent No.1 filed Writ Petition No.324 of 2008 and prayed for issue of a direction to the respondents (State of Uttarakhand and Director, Directorate of Industries) to give him the benefit of the time scale and the selection grade respectively with effect from the date of completion of 8 years and 14 years service and notional promotion to Class-I post from 1989. In support of his claim, respondent No.1 relied upon the orders passed in favour of Shri R.K. Khare, who was promoted to Class-I post with effect from 16.11.1989. He also relied upon orders dated 22.1.2001 passed by the Governments of the States of Uttar Pradesh and Uttarakhand whereby large number of officers including Shri S.C. Chandola, who were senior to Shri R.K. Khare were promoted to Class-I posts with effect from 16.11.1989.

6. In the reply affidavit filed on behalf of the State of Uttarakhand and the Director of Industries, an objection was taken to the maintainability of the writ petition on the ground of non impleadment of the State of Uttar Pradesh as party respondent. On merits, it was pleaded that respondent No.1 cannot claim parity with Shri R.K. Khare because the latter was not allotted to the State of Uttarakhand. As regards Shri S.C. Chandola, it was averred that he was appointed on a Class-II post on 16.9.1976 and was assigned seniority at serial No.16, whereas respondent No.1 was appointed on 23.4.1984 and his seniority was fixed at serial No.49. It was further averred that at the time of allotment to the State of Uttarakhand, Shri S.C. Chandola was holding Class-I post in the pay scale of Rs.10,000–15,200, whereas respondent No.1 was holding a post in the pay scale of Rs.8,000-13,500.

12. In view of the above, we hold that the writ petition filed by respondent No.1 in 2008 in the Uttarakhand High Court claiming retrospective promotion to Class-I post with effect from 16.11.1989 was misconceived and the High Court committed jurisdictional error by issuing direction for his promotion to the post of General Manager with effect from 16.11.1989 and for consideration of his case for promotion to the higher posts with effect from the date of promotion of his so called juniors.

13. In the result, the appeals are allowed, the impugned order is set aside and the writ petition filed by respondent No.1 is dismissed.

14. However, it is made clear that this Court has not expressed any opinion on the merits of the entitlement of respondent No.1 to claim promotion to Class-I post with retrospective effect and, if so advised, he may avail appropriate remedy by filing a petition in the Allahabad High Court. It is also made clear that we have not expressed any opinion on the legality or otherwise of order dated 17.1.2005 issued by the Government of Uttarakhand withdrawing the order of punishment passed against respondent No.1 and the writ petition, if any, pending before the Uttarakhand High Court against that order shall be decided without being influenced by the proceedings of these appeals.