Allowed

Raj Kumar v. State of Uttaakhand

Uttarakhand HC4 Mar 2022WPSB/182/2021

Case brief

AI extract

What is this about?

The Division Bench quashed two Government orders disturbing the settled seniority of direct recruit Forest Rangers vis-a-vis promoted officers. The court ruled that retrospective promotion against vacancies when the new officer is not yet borne in the cadre is illegal, restoring the seniority list effective from 13.08.2019.

What did the court decide?

Impugned orders dated 05.05.2021 and 03.06.2021 were quashed. Seniority now to be reckoned as per the seniority list dated 13.08.2019.

Raj Kumar Vs State of Uttaakhand — Pension and Retirement Benefits | Uttarakhand HC (2022)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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SRI JUSTICE S.K. MISHRA, A.C.J. AND SRI JUSTICE R.C. KHULBE, J.

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WRIT PETITION (S/B) No. 182 OF 2021

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Between:

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Raj Kumar and others.

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…Petitioners

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and

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State of Uttarakhand and others.

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…Respondents

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Counsel for the petitioners. : Mr. A.S. Rawat, the learned Senior Counsel assisted by Mr. Shobhit Saharia, the learned counsel. Counsel for the respondent nos. 1 : Mr. J.C. Pande, the learned Standing and 2. Counsel for the State of Uttarakhand. Counsel for the respondent nos. 3 : Mr. Siddhartha Sah, the learned to 17. counsel.

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Date of Hearing and Judgment : 0 4^TH M ARCH, 2022

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Upon hearing the learned Counsel, the Court made the following

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JUDGMENT : ( per Sri S.K. Mishra, A.C.J.)

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By filing this Writ Petition, the petitioners have

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prayed for the following reliefs :-

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“a) Issue a writ, order or directions in the nature of certiorari quashing and setting aside the order dated 05.05.2021 bearing no. 1546/1-12 as well as order dated 05-05-2021 bearing even no.60, passed by the Respondent no.2, annexed as Annexure no.1 and 2, respectively, to the Writ Petition.

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b) Pass any suitable order or direction of any nature which this Hon’ble Court may deem fit and proper in the present circumstance of the case.

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c) Award the cost of the Writ Petition.

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d) Issue a writ, order or direction in the nature of the certiorari, quashing order dated 3.06.2021, bearing even number 1661, passed by respondent no.2, annexed as annexure 15 to writ petition.”

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Facts of the case may be stated, briefly, as

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follows :-

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On 10.07.2014, pursuant to the advertisement dated 03.03.2012, the petitioners were selected on the post of Forest Rangers through Public Service Commission and became part of the cadre. On 09.10.2015, a final seniority list of the Forest Rangers was notified, who were in the cadre of service as on 01.07.2015 i.e. till the end of the selection year 201415, and the names of the petitioners figured from Serial No. 151 to 199 (it appears at Page No. 46 of the Writ Petition, as Annexure No. 7). An examination of the said document reveals that the private respondent nos. 3 to 17 were not a part of the seniority list.

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On 28.10.2015, the private respondents were

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promoted to the post of Forest Rangers, as per the recommendations of the DPC dated 03.09.2015, in consultation with the Public Service Commission. Thus, they took birth in the cadre of the Forest Rangers in the

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State of Uttarakhand with effect from 28.10.2015. On 13.10.2016, the final seniority list of the Forest Rangers in the State was again published. The petitioners were placed at Serial Nos. 126 to 177, while the private respondents, who have been promoted on 28.10.2015, were placed at Serial Nos. 178 to 202, vide Annexure No. 9. Thereafter, after three successive years, the final seniority list has been prepared, wherein the petitioners were treated as senior to the private respondents. The

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same is given in a tabulated chart as follows :-

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Date of Final Seniority List	Petitioners Serial No.	Respondents Serial No.
18.09.2017	98 to 149	150 to 174	Annexure No. 10 (Page No. 63)
26.11.2018	80 to 131	132 to 152	Annexure No. 10 (Page 70)
13.08.2019	50 to 101	102 to 121	Annexure No. 10 (Page 78)

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Thus, from the day the private respondents

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were borne in the cadre, i.e. on 28.10.2015, they have been shown as juniors to the petitioners. On 01.07.2020, a tentative seniority list was promulgated, wherein the petitioners were placed at Serial Nos. 38 to 89, and the private respondents were placed at Serial Nos. 90 to 107.

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Thereafter, objections were invited and, for the first time, the private respondents raised objections

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to the said seniority list. Then, on 15.10.2020, another seniority list was issued, and the settled seniority list, which was holding field for about five years, was disturbed and a cyclic roster was prepared in purported exercise of sub-rule (3) of Rule 8 of the Uttaranchal Government Servants Seniority Rules, 2002 (hereinafter referred to as the “ 2002 Rules ”, for brevity). However, after taking into consideration the objections raised by the present petitioners, and taking into consideration the Service Rules and the Government Servants Seniority Rules, vide order dated 31.10.2020, the list and order dated 15.10.2020 was cancelled.

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On 25.11.2020, the private respondents, aggrieved by the order dated 31.10.2020, preferred Writ Petition (S/B) No. 361 of 2020 before this Court seeking its quashing, as well as to treat their promotion with effect from 01.07.2014, and to fix their seniority by treating them to be of the selection year 2014, along with the direct recruits of 2014, in the ratio of 1:1. This Court, vide order dated 25.11.2020, directed issuance of notice, and further directed that in the interregnum all further actions of the respondents shall be subject to the further orders of this Court. The said Writ Petition is still

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pending. In fact, it was pending today and, on the submission of Mr. Siddhartha Sah, the learned counsel, the matter was adjourned so that he could take instructions from his clients.

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On 05.05.2021, while passing the impugned order bearing No. 1546(1)/1-12, the order dated 30.10.2020 has been cancelled by the Government of Uttarakhand. The said order dated 05.05.2021 has been assailed in this Writ Petition on the following grounds :-

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(i) The order dated 05.05.2021, bearing No. 1546(1)/1-12, is a non-speaking order.

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(ii) The order dated 05.05.2021 has cancelled an earlier order dated 31.10.2020, the issue of legality and propriety of which is subjudice before this Court in Writ Petition (S/B) No. 361 of 2020.

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(iii) The settled seniority list has been disturbed by the impugned order dated 05.05.2021 without any rhyme or reason.

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(iv) The private respondents were given promotion vide order dated 28.10.2015, wherein it has been

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specifically mentioned that the promotees shall be considered promoted from the date of their joining, though they were posted for the vacancies (�र� पद) of the selection year 2014-15. So, giving promotion to them with retrospective effect from the date of vacancies, when they have not even borne into the cadre, is illegal.

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Therefore, Mr. A.S. Rawat, the learned Senior Counsel and Mr. Shobhit Saharia, the learned counsel for the petitioners, would argue that the order dated 05.05.2021, which is impugned in this case, is totally illegal and requires to be quashed.

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On the other hand, Mr. Siddhartha Sah, the learned counsel for the private respondents, taking note of the expression “selection year 2014-15” (चयन वष� 20142015), would argue that the notification itself reveals that they have been selected for the selection year 2014-15. Therefore, the learned counsel would submit that the private respondents have rightly been given promotion with retrospective effect from the date the posts became vacant. Regarding absence of any objections to the seniority list for about half a decade,

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the learned counsel for the private respondents would further argue that they were not in know of this seniority list and, therefore, they could not file any objections. However, the moment they came to know about the seniority list, they filed objections, and when they did not bore any fruits, they filed Writ Petition (S/B) No. 361 of 2021, which is still pending before this Court. The learned counsel, therefore, prays that there is no merit in this Writ Petition, and the same should be dismissed.

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Mr. J.C. Pande, the learned Standing Counsel for the State of Uttarakhand, drew the attention of this Court to paragraph no. 6 of the counter-affidavit. He submits that the private respondents in the present Writ Petition (who are the petitioners in Writ Petition (S/B) No. 361 of 2020) were promoted against the vacancies of the selection year 2014-15. However, their promotion order dated 28.10.2015, while mentioning the selection year 2014-15, erroneously mentioned that their promotion would take place on the date of taking charge. As a result of the same, their seniority was erroneously placed against the next year i.e. 2015-16, as 01.07.2015 was the cut-off date of the selection year. Thereafter, the matter was not properly represented till

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2020, when the private respondents challenged the tentative seniority as on 01.07.2020. Their representation was considered and, after examining the objections and opinion from the Chief Conservator of Forest, Human Resource Development & Personnel Management (HRD & PM), the respondent no. 2 disposed of their representation by passing Order No. 588/1-12 (HRD) dated 14.10.2020, whereby suitable amendments were made in the promotion order so as to remove any confusion regarding the selection year. Thereafter, and a fresh tentative seniority list, dated 15.10.2020, was issued and objections were further invited. However, without disposing of those objections, those orders were cancelled vide the impugned P.O/428 from the Camp Office without following any office procedure. Hence, in addition to cancelling the P.O/428, the respondent no. 2, vide order dated 05.05.2021 bearing even No. 60, rightly passed the amended promotion order of 30 promotee Range Officers against the vacancies of the selection year 2014-15 in order to remove any further confusion whatsoever regarding the date of arising of vacancies in the selection year 2014-15. However, the applicability of those dates was

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considered only for notional purposes and not for any financial benefits.

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The learned Standing Counsel for the State would further argue that the final seniority list of the year 2020-21 was issued on 03.06.2021, vide even Order No. 1661, which has presently been challenged by the petitioners. The final seniority list clearly mentions that the seniority list will be subject to the final decision of this Court in Writ Petition (S/B) No. 361 of 2020. Therefore, he prays that the Writ Petition should be dismissed.

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However, in the meantime, further development took place and, on 28.01.2022, the Uttarakhand Administration, through its Secretary, issued a letter to the Principal Conservator of Forest (HoFF). We find it appropriate to quote paragraph nos. 3 and 4 of the said letter as under :-

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3& rRdze esa voxr djk;k tkuk gS fd vkids mDr lanfHkZr i= fnukad 21 + -0+2-2022 rFkk i= la[;k &1085] fnukad 21-12-2021 ds ek/;e ls fnukad 01-07-2021 dh fLFkfr ds vk/kkj ij fuxZr ou {ks=kf/kdkfj;ksa dh T;s"Brk lwph ds voyksdu ls ;g Li"V gS fd 'kklukns”k la[;k&1723] fnukad 05-05-2021 dks rRdky izHkko ls fujLr fd;s tkus ds laca/k esa iznRr funZs”kksa ds dze esa mRrjk[k.M ljdkjh lsod T;s"Brk fu;ekoyh] 2002 ds izkfo/kkukuqlkj dk;Zokgh djrs gq;s] iwoZ esa iznRr uks”kuy inksUufr dks ;Fkkor j[krs gq;s] ek= vkSipkfjdrko”k ou {ks=kf/kdkfj;ksa dh T;s"Brk lwph fnukad 21-12-2021 fuxZr dh x;h gSA

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4& vr% bl laca/k esa mDr of.kZr rF;ksa rFkk 'kklukns”k la[;k&1723] fnukd a 02-11-2021 }kjk uk”kuy inks sUufr iznku fd;s

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tku ls ca /kh oukna ”k ls [;ka &59] fnukd a 05-05-2021 dk rRdky izs Hkko l fujLr fd;s tkus ds ls ca /k ea iznRr funsa ”kksZ d s a vkyks d es ousa foHkkx d i= ls [;ka &1085] fnukd a 21-12-2021 d ek/;e ls fuxs rZ ou {k=kf/kdkfj;ks dh T;sa s"Brk lwph dk mRrjk[ks .M ljdkjh lod s T;s"Brk fu;ekoyh] 2002 e fofgr izkfo/kkuksa dsa vkyks d es lsa ”kka f/krs djr gq;s s la”kksf/kr T;s"Brk lwph ds vuqlkj p;u o"kZ 2021&22 esa lgk;d ou laj{kd ds 31 fjDr inksa ds lkis{k mRrjk[k.M yksd lsok vk;ksx lijke”kZ p;uksUufr ¼izfdz;k½ fu;ekoyh] 2003 esa fofgr izkfo/kkukuqlkj ¼fjfDr;ksa dh la[;k dk 1-5 xquk fdUrq de ls de 10½ la”kksf/kr ik=rk lwph 'kklu dks 07 fnuksa ds Hkhrj miyC/k djkus dk d"V djsaA

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(underlined to emphasize)

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Thus, it is clear that one part of the prayer, i.e. quashing of the order bearing No. 1546(1)/1-12 dated 05.05.2021, has become infructuous, as the Government has already withdrawn the said order.

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What remains to be decided at present is the legality of the Order No. 60 dated 05.05.2021, and the consequential order dated 03.06.2021 bearing No. 1661/1-12 (HRD) i.e. Annexure No. 15.

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The Forest Order No. 1546/1-12 dated 05.05.2021, i.e. Annexure No. 1, is a single line order, whereby the Order No. P.O./428 dated 31.10.2020, was cancelled. It is a non-speaking order, and no reasons have been given as to why the order dated 31.10.2020 was recalled.

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It may be noted here that by the order dated 31.10.2020, the earlier order No. 588/t-12 (HRD) dated 10

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14.10.2020 was cancelled (in fact the aforesaid order No. 588/t-12 (HRD) is dated 15.10.2020, but there is a typographical error in the document, which is of no consequence). By virtue of order No. 588/t-12 (HRD) dated 14.10.2020, the private respondents were given promotion with retrospective effect. After considering the matter, the said order No. 588/t-12 (HRD), was recalled by the authorities, and on 05.05.2021 that order of recalling the retrospective promotion was recalled. The impugned order does not justify why such an order should again be recalled, and it is a nonspeaking order.

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The second most important aspect in the case is that the order dated 31.10.2020 is the subject matter of Writ Petition (S/B) No. 361 of 2020. In fact, the Division Bench of this Court has, as per the order dated 25.11.2020, directed that in the interregnum all further actions of the respondents shall be subject to further orders of this Court. So, when a matter was under challenge, and this Court was seized of the matter, without informing this Court, or without making any submission regarding the said order, it was not proper

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on the part of the State Administration to recall that order, and that too without any reasons.

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The learned counsel for the private respondents would argue that the order dated 28.10.2016 giving them promotion with retrospective effect is passed in view of the fact that they were selected for the selection year 2014-15. However, a careful reading of the order dated 28.10.2016 (Annexure No. 8) reveals that they were given promotion against the vacant posts of selection year 2014-15 from the date of their joining, and they were to be posted on their earlier place of posting at that time. So, there appears to be no ambiguity in this order, and the petitioners were to be considered promoted from the date of their joining.

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In the case of Uttaranchal Forest Ranger’s Assn. (Direct Recruit) and others v. State of U.P. and others; (2006) 10 SCC 346 , the Hon’ble Supreme Court has considered this aspect, and has held that the seniority has to be decided on the basis of Rules in force on the date of appointment. No retrospective promotion or seniority can be granted from a date when an

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employee has not even borne in the cadre. A similar view was taken by the Hon’ble Supreme Court in the case of K.C. Joshi & others v. Union of India; 1992 Suppl (1) SCC 272 .

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In the case of State of Uttaranchal and

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another v. Dinesh Kumar Sharma; (2007) 1 SCC 683 , the Hon’ble Supreme Court has further considered the question that the year, in which the vacancy accrues, can have any relevance for the purpose of determining the seniority irrespective of the fact when the person is recruited, and answered it in negative. The Hon’ble Supreme Court took note of the respondent’s contention that, since the vacancy arose in the year 1995-96, he should be given promotion and seniority from that year, and not from 1999, when his actual appointment letter was issued by the appellant.

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The Supreme Court held that this cannot be allowed, as no retrospective effect can be given to an order of appointment order under the Rules, nor is such a contention reasonable to normal parlance. This view was taken by the Hon’ble Supreme Court in the case of Jagdish Ch. Patnaik & Ors. v. State of Orissa &

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Ors.; 1998 (4) SCC 456 .

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The Hon’ble Supreme Court in the recently

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decided case of The State of Bihar & Ors. v. Arbind Jee (Civil Appeal No. 3767 of 2010, decided on 28.09.2021) has held that retrospective seniority cannot be granted to an employee from a date when the employee was not borne in the cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. The Hon’ble Supreme Court relied upon several judgments, including the Constitution Bench judgment of the Supreme Court in the case of Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra; (1990) 2 SCC 715 . The same principle was reiterated in State of Bihar v. Akhouri Sachindra Nath; 1991 Supp. (1) SCC 334 and State of Uttaranchal and another v. Dinesh Kumar Sharma (supra).

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Thus, it is clear that when the private respondents were promoted, though the vacancies arose in the year 2014, the petitioners were already in service for about more than one year, and the act of the State Government giving retrospective promotion to the private respondents, when they have not even borne in

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the cadre, was clearly illegal. Therefore, it was cancelled, or withdrawn, by the order dated 31.10.2020. In such a situation, recalling of that order by the State is against the tenor of law, and that too when the matter is subjudice before this Court. It, therefore, leads us to the conclusion that we have to interfere in the matter and quash the impugned order.

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The another aspect, which requires our consideration, is the applicability of Rule 8 of the 2002 Rules, especially sub-rule (3). For appreciation, we consider it appropriate to quote the relevant portion as under :-

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8. Seniority where appointments by promotion only from direct recruitment.

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(1) xxxxxx

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(2) xxxxxx

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(3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotes vis-à-vis direct recruits shall be determined in a cyclic order the first being a promotee as for a may be, in accordance with the quota prescribed for the two sources.

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(underlined to emphasize)

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This aforesaid provision was considered by the

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Hon’ble Supreme Court in the case of State of Uttaranchal and another v. Dinesh Kumar Sharma (supra) . At paragraph no. 28, the Hon’ble Supreme

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Court has held that it is clear from the above that a person appointed on promotion shall not get seniority of any earlier year, but shall get the seniority of the year in which his/her appointment is made. The Supreme Court further held that, therefore, in the present fact situation the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96, but can only get promotion and seniority from the time he has been substantively appointed i.e. from 1999. Likewise, the seniority also will be counted against the promotion/appointment in the cadre from the date of issuance of order of substantive appointment in the said cadre i.e. from 19.11.1999.

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Thus, the aforesaid judgment sums up the answer to the issues posed in this case. Moreover, it is our opinion that even if for the sake of consideration we consider that the private respondents were selected for the selection year 2014-15, then also sub-rule (3) of Rule 8 of the 2002 Rules will not be applicable, as it is provided that where appointments are made both by promotion and direct recruitment on the result of any one selection, and it is an admitted fact that the petitioners were selected in the year 2014 through direct

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recruitment, and the private respondents were promoted in the year 2015 in a different departmental promotion exercise. So, sub-rule (3) of Rule 8 of the 2002 Rules is not applicable to the present case to determine the inter-se seniority between the petitioners and the private respondents.

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Annexure No. 15 is the seniority list prepared as per the tentative list dated 01.07.2020, which was modified in purported exercise of sub-rule (3) of Rule 8 of the 2002 Rules, though it has been reflected that the same has been made under Rule 9(4) of the 2002 Rules. Since the very basis, for which the tentative seniority list was prepared, has already been held to be incorrect, and it is the opinion of this Court that the petitioners are senior to the private respondents, as when the petitioners were promoted to the cadre of Forest Rangers, the private respondents were not even borne in the cadre.

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In that view of the matter, we find sufficient merit in this Writ Petition.

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But, before allowing the Writ Petition, we further want to make the observation that when on 17

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05.05.2021, the Principal Conservator of Forest (HoFF) issued two orders i.e. Annexure Nos. 1 and 2, and then after realizing his mistake recalled Annexure No. 2, there appears to be no reason to allow Annexure No. 1 to continue. In fact, it will only contribute to further chaos and confusion among the rank and cadre of the petitioners and the private respondents.

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In that view of the matter, the present Writ Petition is allowed. The impugned order dated 05.05.2021 bearing even No. 60, and the impugned order dated 03.06.2021 bearing even No. 1661, are, hereby, quashed. It is further directed that the seniority shall be considered by the authorities as per the seniority list dated 13.08.2019, wherein the petitioners were placed at Serial Nos. 50 to 101 and the private respondents were placed at Serial Nos. 102 to 121.

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________________ S.K. MISHRA, A.C.J.

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R.C. KHULBE, J.

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Dt: 04^th March, 2022 Rahul

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Raj Kumar v. State of Uttaakhand

Case brief

What is this about?

What did the court decide?

Raj Kumar v. State of Uttaakhand

Case brief

What is this about?

What did the court decide?

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