State Of Uttaranchal & Anr .... ... vs Dinesh Kumar Sharma ....Respond

JUDGMENT (Arising out of SLP (C) No. 12966/2005) Dr. AR.Lakshmanan, J Leave granted.

The brief facts of the present matter are enumerated below.

On 25.10.1977, the respondent, Mr. Dinesh Kumar Sharma was appointed as Subordinate Agriculture Services Group-I on the post of Senior Chemical Assistant, Research (Chemistry) Branch through the Public Service Commission, U.P. Allahabad. Fifteen years service in Subordinate Agriculture Service Group-I is the eligibility criteria for being considered for next higher promotion. In the year 1992-93, respondent became eligible for the said promotion. On 31.03.1995, the Governor of Uttar Pradesh promulgated U.P. Agricultural Group II Service Rules 1995 providing for the selection, appointments, probation, seniority, promotion etc. Rule 21 states that the date of substantive appointment will be the basis of promotion. On 01.04.1996 and 01.05.1996, two class-II posts in the Hill sub cadre became vacant due to retirement of two officers. These appointments were to be made by Direct Recruitment as well as Promotion. Rule 17 states that, if in any year of recruitment appointments are made both by direct recruitment and promotion a combined select list be prepared by taking the names from the relevant list and "the first name in the list will be of the person appointed by promotion".

On 04.04.2001, the U.P Government Agriculture Department issued an order directing that those employees who were already members of the Hill Sub Cadre and posted at Uttaranchal have been finally allocated to Uttaranchal Government in which the name of the respondent was shown at serial No.30.

Thereafter on 17.07.2001 & 27.05.2002, the respondent made two representations to the Department contending that his seniority may be counted from the year 1995-96 with all the consequential benefits as the vacancies fell vacant in that year. Further on 12.06.2002, the respondent made another representation stating that his earlier two representations were not decided upon and that he should be promoted with effect from the date of occurrence of vacancy. On 01.10.2002, the Government of Uttaranchal issued Office Memorandum conveying its decision of rejecting the claim made by the respondent.

The respondent filed Writ petition No.369/2004 on 21.11.2004 praying the High Court to issue a writ of Mandamus to promote him with effect from 1995-96 with all consequential benefits. However, the respondent in his writ petition has suppressed the fact that the Government had denied the claim the respondent had made by way of representations dated 17.07.2001, 27.05.2002 and 12.06.2002. The appellants filed their counter affidavit stating the rejection of the claim of the respondent in the High Court on 23.03.2005.

The Division Bench of the High Court of Uttaranchal vide its final order and judgment dated 29.03.2005 held that, "the Government is directed to re-consider the matter and send it back to the Commissioner for appropriate orders suitable in the facts and circumstances of the case."

We are also of the view that the right to constitute the selection committee against the vacancy is vested in the government, and after adopting the due procedure of selection, the respondent had been substantively appointed by an order issued by the Secretary, Agriculture, Government of U.P dated 19.11.1999 and this decision of the Government in our view does not call for interference. The order is reproduced as under:

2. In regard to the application of Shri Sharma, whose promotion was made in consultation by the UP Public Service Commission, Allahabad, in accordance with the Public Service(Procedure) Rules, 1970, towards the vacancies for the Recruitment year 1997-98 vide Office Memo No. 5653 dated 19.11.1991; I am to state that even if the recruitment year of Shri Sharma is to be taken as 1995-96 rather than 1997-98 even then the date of substantive appointment would remain the same being the date the order had been issued. Since Shri Sharma's promotion in respect of the vacancies of the Recruitment year 1997-98 was issued on 19.11.99, therefore the date on which the said order of promotion has been issued being 19.11.1999 it shall remain the date of Shri Sharma's substantive appointment after promotion. As regards the question of entitlement of Shri Sharma to the benefit of the selection grade salary upon selection against the vacancies of 1995-96, the benefit of selection grade salary is available only in the promoted post if the officer is working in the said post for the stipulated period. The grant of promotion pay is for the service after the date of the promotion and not from the date the vacancy arose in the recruitment year.

3. In the light of the above, the applications of Shri D.K. Sharma dated 17.07.2001 and 25.05.2002 are hereby disposed off.

B.P. Pandey Secretary."

In our opinion, the High Court should not have interfered with this finding of the Appellants and directed them to "consider" the representation of the respondent, which in effect will amount to the reconsideration of the claim made by the respondent.

In the result, we allow the civil appeal filed in this court by the Appellant, the State of Uttaranchal and set aside the judgment dated 29.03.2005 of the High Court of Uttaranchal. However, we are not ordering costs.