Gyan ChAnd vs State Of Uttarakhand And Other

Ramesh Ranganathan, C.J.

Heard Mr. Aditya Singh, learned counsel for the petitioner, Mrs. Prabha Naithani, learned Brief Holder for the State, and Mr. Rakesh Thapliyal and Mr. Bhupesh Kandpal, learned counsel appearing on behalf of the unofficial respondents and, with their consent, the writ petition is disposed of.

An application, seeking modification of the interim order passed earlier, is filed by the unofficial respondents herein. The dispute, in the present case, relates to promotion of Assistant Commissioners (Commercial Taxes) as Deputy Commissioners (Commercial Taxes). While 14 vacancies were identified in the cadre of Deputy Commissioner (Commercial Taxes) vide proceedings dated 30.07.2018, the subsequent proceedings take note of the possibility of 7 more vacancies arising in the cadre of Deputy Commissioners, on the present seven Deputy Commissioners being promoted as Joint Commissioners.

The petitioner is at serial no. 27 in the seniority list of Assistant Commissioners. It is his grievance that, instead of preparing and finalizing the ACRs of all the eligible 27 Assistant Commissioners, who fulfill the requirement of having completed the minimum stipulated 5 years of service, the State Government is proceeding with the exercise of promotion based on the ACRs of only 14 of such Assistant Commissioners; a mandamus should, therefore, be issued to the respondents to prepare and complete the exercise of finalizing the ACRs of all the 27 candidates; and the exercise of promotion should be conducted in one go, instead of piecemeal, so that all the 21 available vacancies, (14 as notified in the proceedings dated 31. 07.2018 and the 7 vacancies which would arise shortly), are filled up by the Departmental Promotion Committee.

In the interim order passed on 08.10.2018, this court held that the Departmental Promotion Committee shall only be completed as and when the records of all the persons, who fall under the zone of consideration, are completed. As a consequence thereof, till the ACRs of all the 27 Assistant Commissioners, who have put in the minimum stipulated service of five years to be eligible for promotion, is completed, the State Government is disabled from undertaking the exercise of effecting promotions from the posts of Assistant Commissioners to the posts of Deputy Commissioners. In this context, it is necessary to refer to the Uttaranchal Promotion by Selection (on posts outside the purview of the Public Service Commission) Eligibility List Rules, 2003. Rule 5 thereof relates to preparation of an eligibility list where the criterion for promotion is seniority subject to rejection of those who are unfit. Under sub-rule (i) thereof, where the criterion for promotion is seniority subject to rejection of the unfit, the Appointing Authority shall prepare three lists to be called the eligibility lists of the senior most eligible candidates from each of the categories, namely, General, Scheduled Castes and Scheduled Tribes separately, in the light of the vacancies available for each of the said category containing names, so far as may be, in the following proportion:

For 1 to 5 Vacancies: 2 times the number of vacancies subject to a minimum of 5.

For over 5 Vacancies: 1 ½ times the number of vacancies subject to a minimum of 10.

Learned counsel on both sides are in agreement that the zone of consideration for filling up the posts of Deputy Commissioners is 1:1.5 i.e. if 10 vacancies are to be filled up, then at least 15 candidates would form the zone of consideration; and the ACRs of these 15 Assistant Commissioners should be placed before the Departmental Promotion Committee. In effect, from out of all such Assistant Commissioners whose ACRs are ready and are placed before the Departmental Promotion Committee, only two-thirds of such Assistant Commissioners can be promoted as Deputy Commissioners. As noted hereinabove, the mode of promotion to the post of Deputy Commissioners is seniority subject to rejection of the unfit. It is only if a candidate is found to be unfit, can he be overlooked. Otherwise, promotion is strictly on the basis of seniority.

The petitioner is, admittedly, at serial no. 27 in the seniority list of Assistant Commissioners. While all the 27 eligible Assistant Commissioners may be required to be considered by the DPC in case, as is contended by Shri Aditya Singh, learned counsel, the number of vacancies in the cadre of Deputy Commissioner is held to be 21, the submission of Mr. Rakesh Thapliyal and Mr. Bhupesh Kandpal, learned counsel for the unofficial respondents, is that 7 vacancies are yet to arise; the number of vacancies now available, in the cadre of Deputy Commissioner, is only 14; promotion from the cadre of Deputy Commissioner to the cadre of Joint Commissioner have not yet been effected; and, therefore, as at present, there are only 14 vacancies available in the cadre of Deputy Commissioner which is to be filled up from the senior most 21 eligible Assistant Commissioners who fall within the zone of consideration of 1:1.5.

There also appears to be a dispute as to the number of the candidates whose ACRs are ready. While Mr. Aditya Singh, learned counsel for the petitioner, would contend that the ACRs of only those Assistant Commissioners, who are at serial no. 1 to 14, are ready, both Mr. Rakesh Thapliyal and Mr. Bhupesh Kandpal would submit that the ACRs of 21 Assistant Commissioners are ready; and, consequently, 21 eligible Assistant Commissioners can be considered by the DPC, and 14 of them can be promoted as Deputy Commissioners on the criteria of seniority subject to rejection of the unfit.

Without examining this controversy, as to number of candidates whose ACRs are ready to be placed before the Departmental Promotion Committee, suffice it to dispose the writ petition directing the respondents to forward the names of those Assistant Commissioners, who have fulfilled the minimum five years service and whose ACRs are ready to be forwarded to the Departmental Promotion Committee strictly in the order of seniority. The Departmental Promotion Committee shall consider all those candidates, whose ACRs have been forwarded to it, strictly in accordance with Rule 5(1) under different categories i.e. General, Scheduled Castes and Scheduled Tribes separately; and shall fill up the posts only to the extent of two-thirds of the number of Assistant Commissioners whose ACRs are forwarded to the Departmental Promotion Committee by the State Government, as the zone of consideration is 1:1.5 or 2/3rd .

In so far as those Assistant Commissioners, whose ACRs have yet not been finalized as on date, it is seen from the proceedings aforementioned that 7 additional vacancies are likely to be available in near future. As these posts may also be required to be filled up, if the State Government considers it necessary to do so, it is but appropriate that the ACRs of the remaining Assistant Commissioners, who have completed the minimum prescribed five years of service, shall be prepared and finalized at the earliest and, in any event, not later than 4 months from the date of receipt of a copy of this order.

With the aforesaid observations, the writ petition stands disposed of. No order as to costs.