State of Uttarakhand and
another Vs. Umakant Joshi
[Civil Appeal No.
3984 of 2012]
Sudhir Chandra Nautiyal
Vs. Umakant Joshi and Others
[Civil Appeal No.
3982 of 2012]
Surendra Singh Rawat Vs.
Umakant Joshi and Others
[Civil Appeal No.
3983 of 2012]
J U D G M E N T
G. S. Singhvi, J.
the Uttarakhand High Court could ordain promotion of respondent No.1 – Umakant
Joshi to the post of General Manager with effect from 16.11.1989, i.e., prior to
formation of the State of Uttaranchal (now known as the State of Uttarakhand)
with the direction that he shall be considered for promotion to the higher posts
with effect from the dates persons junior to him were promoted is the question
which arises for consideration in these appeals, one of which has been filed by
the State of Uttarakhand and the Director of Industries, Dehradun and the other
two have been filed by Sudhir Chandra Nautiyal (hereinafter described as, ‘Appellant
No.1’) and Surendra Singh Rawat (hereinafter described as, ‘Appellant No.2’) respectively
against order dated 4.6.2010 passed by the Division Bench of that High Court in
Writ Petition No.324 of 2008.
service profile of Appellant No.1:
being selected by the Uttar Pradesh Public Service Commission (for short, ‘the
Commission’), appellant No.1 was appointed to Class-I post in the Industries
Department of the Government of Uttar Pradesh with effect from 7.2.1994.
formation of the State of Uttaranchal, in terms of Section 3 of the Uttar
Pradesh Reorganisation Act, 2000 (for short, ‘the Act’), the Central Government
issued order dated 20.12.2000 under Section 73 thereof and tentatively allotted
appellant No.1 along with large number of other officers/employees of the State
of Uttar Pradesh including respondent No.1 to the new State of Uttaranchal. They
were finally allotted to the new State vide order dated 17.5.2006.
No.1 was promoted as Joint Director of Industries on ad-hoc basis in the State
of Uttarakhand with effect from 17.1.2004. He was regularly promoted on that
post on 23.7.2007. After two years, he was promoted as Additional Director,
service profile of Appellant No.2: 3.1 Appellant No.2 was appointed in the U.P.
Industries (Subordinate) Service in 1979. He opted for Hill Sub-Cadre formed by
the State of Uttar Pradesh in 1992. His name was included in the separate
seniority list of the officers of that cadre and on formation of the State of
Uttaranchal, he was treated as an employee of the new State. 3.2 Appellant No.2
was promoted to U. P. Industries Class-I Service in 1996. He was further promoted
to the post of Deputy Director/General Manager (Grade-I) with effect from
service profile of Respondent No.1:
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.
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.
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.
No.1 submitted representation dated 14.1.2000 to the State Government for reconsideration/review
of the order of punishment. He also filed writ petition in the Allahabad High Court
for quashing the order of punishment.
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.
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’).
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:
consideration of the representation dated 14.01.2000 and 23.12.2000 submitted
by Sh. Uma Kant Joshi against the punishment given vide Office Memorandum No.4482/181-81(R)/96
dated 23.01.1999 by Secretary, Small Scale Industry Government of U.P. to Sh.
Uma Kant Joshi the then Manager (Marketing and Economic Survey) District Industry
Centre, Kotdwar, Pauri Garhwal, present incharge General Manager, District Industry
Centre, Udhamsingh Nagar, the Governor hereby accords approval to withdraw the
said punishment order dated 23.01.1999 upon its merit.
about 7 months, the State Government issued order dated 11.8.2005 and expunged the
adverse entry recorded in the Annual Confidential Report of respondent No.1 for
the year 1995-96.
Tribunal took cognizance of the aforementioned two orders and disposed of the
petition filed by respondent No.1 as infructuous. 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.
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.
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.
Division Bench of the High Court took cognizance of orders dated 17.1.2005 and 11.8.2005
and held that once the order of punishment was withdrawn and there was no adverse
material in the record of respondent No.1, he was entitled to be promoted to Class-I
post with effect from the date his junior Shri R.K. Khare was promoted. The
Division Bench accordingly directed that respondent No.1 be promoted to the
post of General Manager with effect from 16.11.1989 and his case be considered for
promotion to the higher posts from the dates persons junior to him were
proceeding further, we may notice some other facts which have bearing on the
decision of these appeals.
exercise of the powers conferred upon it by Rules18 and 39 to 41 of the Civil
Services Classification, Control and Appeal Rules, 1930, the Government of
United Province had made the United Provinces Industries Service Class-I Rules,
1937 for regulating appointment to the posts of Director/Deputy Director, Member,
Harcourt Butler Technological Institute, Heads of Sections of Harcourt Butler Technological
Institute and Glass Technologist. After independence, the Governor of Uttar Pradesh
made the Uttar Pradesh Industries Service Rules, 1993 (for short, ‘the 1993 Rules’)
for regulating recruitment on various posts which were categorized in two groups,
i.e., Group ‘A’ and Group ‘B’. Prior to this, the Government of Uttar Pradesh
had issued G.O. dated 4.2.1989 in terms of which only those members in the
feeder cadre were treated eligible for promotion who had completed 7 years’
service as on 1st July. By another G.O. issued on 31.3.1993, the State
Government decided that time scale shall be granted to an employee on
completion of 8 years’ satisfactory service.
virtue of Section 3 of the Act, the new State of Uttaranchal was formed. Sections
73 and 74 of the Act, which relate to services other than All India Services
read as under:
relating to other services –
1. Every person who immediately
before the appointed day is serving in connection with the affairs of the existing
State of Uttar Pradesh shall, on and from that day provisionally continue to serve
in connection with the affairs of the State of Uttar Pradesh unless he is
required, by general or special order of the Central Government to serve
provisionally in connection with the affairs of the State of Uttaranchal: Provided
that every direction under this sub-section issued after the expiry of a period
of one year from the appointed day shall be issued with the consultation of the
Governments of the successor States.
2. As soon as may be after
the appointed day, the Central Government shall, by general or special order, determine
the successor State to which every person referred to in sub-section (1) shall
be finally allotted for service and the date with effect from which such
allotment shall take effect or be deemed to have taken effect.
3. Every person who is
finally allotted under the provisions of sub-section (2) to a successor State
shall, if he is not already serving therein be made available for serving in the
successor State from such date as may be agreed upon between the Governments
concerned or in default of such agreement, as may be determined by the Central
74. Other provisions
relating to Services –
1. Nothing in this section
or in Section 73 shall be deemed to affect on or after the appointed day, the
operation of the provisions of Chapter I of Part XIV of the Constitution in
relation to determination of the conditions of service of persons serving in connection
with the affairs of the Union or any State: Provided that the conditions of
service applicable immediately before the appointed day in the case of any person
deemed to have been allocated to the State of Uttar Pradesh or to the State of Uttaranchal
the previous approval of the Central Government under Section 73 shall not be varied
to his disadvantage except with the previous approval of the Central Government.
2. All services prior to
the appointed day rendered by a person,-
a. If he is deemed to
have been allocated to any State under Section 73, shall be deemed to have been
rendered in connection with the affairs of that State;
b. If he is deemed to
have been allocated to the Union in connection with the administration of the
Uttaranchal, shall be deemed to have been rendered in connection with the affairs
of the Union, for the purposes of the rules regulating his conditions of
3. The provisions of
Section 73, shall not apply in relation to members of any All-India Service.”
7.11.2002, adoption and modification orders were issued in relation to Uttar
Pradesh Industries Service Rules, 1993 and Uttar Pradesh Industries (Senior
Group ‘A’) Service Rules, 1991.
the recommendations of the Commission, Shri R.K. Khare was appointed as Survey
Officer in the pay scale of Rs.450-950 with effect from 27.12.1974. He was
appointed as Assistant Development Officer (Small Engineering Industries) with
effect from 3.11.1976 in the pay scale of Rs.550-1200 on ad hoc basis. Subsequently,
the State Government issued G.O. dated 11.10.1977 and conveyed sanction of the Governor
to the appointment of Shri R.K. Khare as Assistant Development Officer (SEI). On
22.3.1980, he was appointed as ad hoc Class-I officer in the pay scale of Rs.800-1450.
The ad hoc appointment of Shri R.K. Khare was regularized with effect from 16.11.1989
under the Uttar Pradesh Regularization of Ad hoc Appointments (on Posts within
purview of Public Service Commission) Rules, 1988.
an order dated 22.1.2001, the Government of Uttar Pradesh promoted 19 Class-II
officers, who were senior to Shri R.K. Khare to Class-I posts on notional basis
with effect from 16.11.1989.
J.L. Gupta and Subodh Markandeya, learned senior counsel appearing for
appellant Nos. 1 and 2 and Ms. Rachana Srivastava, learned counsel appearing
for the State of Uttarakhand argued that the impugned order is liable to be set
aside because while granting relief to respondent No.1, the High Court completely
ignored that he was guilty of laches and that the persons who were going to be adversely
affected by retrospective promotion of respondent No.1 had not been impleaded
as party respondents.
further argued that the Uttarakhand High Court did not have the jurisdiction to
direct promotion of respondent No.1 to Class-I post with effect from a date prior
to formation of the new State and even the Allahabad High Court could not have
issued a mandamus for promotion of respondent No.1 de hors his service record. Learned
counsel emphasized that in exercise of power under Article 226 of the
Constitution, the High Court cannot, except in exceptional circumstances, issue
direction for promotion of an officer/official and the case of respondent No.1
did not fall in that category.
pointed out that even though Shri R.K. Khare was junior to respondent No.1 in
the seniority list of Class-II officers, his promotion to Class-I post with effect
from 16.11.1989 did not give a cause to respondent No.1 to seek intervention of
the Uttarakhand High Court for promotion with effect from that date because
till then, he continued to be an employee of the State of Uttar Pradesh.
Pramod Swarup, learned senior counsel appearing for respondent No.1 defended
the directions given by the High Court and argued that once the order of
punishment was withdrawn and the remarks recorded in the Annual Confidential
Report of respondent No.1 casting adverse reflection on his integrity were
expunged, he became entitled to be considered for promotion to Class-I post
with effect from a date persons junior to him, namely, Shri R.K. Khare and others
were promoted. Learned senior counsel emphasized that after having issued order
dated 22.1.2001 for promotion of Shri S.C. Chandola to Class-I post with effect
from 16.11.1989, it is not open to the Government of Uttarakhand to contend that
the High Court did not have the jurisdiction to issue direction for retrospective
promotion of respondent No.1.
have considered the respective submissions. It is not in dispute that at the
time of promotion of Class-II officers including Shri R.K. Khare to Class-I
posts with effect from 16.11.1989 by the Government of Uttar Pradesh, the case of
respondent No.1 was not considered because of the adverse remarks recorded in his
Annual Confidential Report and the punishment imposed vide order dated 23.1.1999.
Once the order of
punishment was set aside, respondent No.1 became entitled to be considered for
promotion to Class-I post with effect from 16.11.1989. That exercise could have
been undertaken only by the Government of Uttar Pradesh and not by the State of
Uttaranchal (now the State of Uttarakhand), which was formed on 9.11.2000.
Therefore, the High
Court of Uttarakhand, which too came into existence with effect from 9.11.2000 did
not have the jurisdiction to entertain the writ petition filed by respondent No.1
for issue of a mandamus to the State Government to promote him to Class-I post
with effect from 16.11.1989, more so because the issues raised in the writ
petition involved examination of the legality of the decision taken by the
Government of Uttar Pradesh to promote Shri R.K. Khare with effect from
16.11.1989 and other officers, who were promoted to Class-I post vide order
dated 22.1.2001 with retrospective effect.
It appears to us that
the counsel, who appeared on behalf of the State of Uttarakhand and the
Director of Industries did not draw the attention of the High Court that it was
not competent to issue direction for promotion of respondent No.1 with effect from
a date prior to formation of the new State, and that too, without hearing the State
of Uttar Pradesh and this is the reason why the High Court did not examine the
issue of its jurisdiction to entertain the prayer made by respondent No.1.
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
the result, the appeals are allowed, the impugned order is set aside and the
writ petition filed by respondent No.1 is dismissed.
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
[Sudhansu Jyoti Mukhopadhaya]