High Court of Uttarakhand At Nainital vs Uttarakhand Board of Technical Education And Others

Rajiv Sharma, ACJ.

Since, common question of law and facts are involved in these appeals, hence, they are being taken up together and are adjudicated by this common

judgment.

The private respondents are Group D employees in District Judgeship of Bageshwar and Nainital respectively. Since, the competent authority in the

concerned judgeships had taken a decision to supply all available vacancies on Group C posts through Direct Recruitment and had also advertised the

vacancies, consequently, private respondents invoked extra-ordinary jurisdiction of this Court by filing Writ Petition No. 201 (S/S) of 2015 and Writ

Petition No. 192 (S/S) of 2015.

It was their contention in the writ petition that Uttarakhand Subordinate Civil Court Ministerial Establishment Rules, 2007 are applicable to them,

which provide that Group D employees have a right to be considered for promotion against vacancies on Group C posts, but, the promotion quota

available to Group D employees has not been specified in the said rules, instead the promotion quota available to Group D employees of Subordinate

Government Offices has been made applicable in the aforesaid Rules.

The writ petitions filed by the private respondents were allowed by learned Single Judge by holding that since the promotion quota available to

Group D employees of other Subordinate Government Offices has been increased by the State Government vide Notification dated 13.08.2013,

therefore, by virtue of Rule 20(10) of the Uttarakhand Subordinate Civil Court Ministerial Establishment Rules, 2007, the writ petitioners are also

entitled to be promoted against 45% vacancies on Group C posts.

Separate recruitment rules have been framed for Ministerial employees of Subordinate Civil Courts, which are known as the Uttarakhand

Subordinate Civil Courts Ministerial Establishment Rules, 2007. Rule 3(1)(a) thereof provides that Group C posts of Copyist / Junior Clerk etc. shall be

filled “by direct recruitment or by selection from amongst the regular Group-D employees fulfilling conditions as per the Rules/Government Orders

applicable not beyond the quota fixed in such Government Ordersâ€​.

Rule 20 of the said Rules deals with promotion and sub-rule 10 of Rule 20 reads as under:

“The appointment by way of promotion from eligible candidates of group ‘D’ with the prescribed quota shall be made by the appointing

authority in accordance with the candidates and procedure prescribed by rules and Government order issued from time to time in the lowest pay scale

of Group ‘C’.â€​

The careful perusal of Rule 3(1)(a) and Rule 20(10) of the aforesaid Rules indicates that although promotion is one of the source of recruitment to

Group C post of Copyist / Junior Clerk in Subordinate Courts and Group D employees have been given right of promotion, however, the promotion

quota available to them has not been specified. Rule 3(1)(a) while dealing with source of recruitment provides that Group D employees will be entitled

to promotion not beyond the quota prescribed in Government Orders, issued from time to time. This is an instance of legislation by reference as held

by Hon’ble Supreme Court in the case reported in (1989) Supp(1) SCC 733.

It is contended on behalf of the appellant that the rules framed in respect of other Government Departments in the year 2004 were neither adopted,

nor made applicable to the employees of Subordinate Courts, therefore, view taken by learned Single Judge is erroneous.

We are not impressed by the submission made on behalf of appellant. Rule 3(1)(a) and Rule 20(10) of the Rules applicable to Subordinate Civil

Courts do not fix the promotion quota available to Group D employees. However, it provides that they shall be entitled for promotion not beyond the

quota fixed by the State Government in respect of Group D employees of Subordinate Government Offices.

Since, the Government Rules/Government Orders regarding promotion quota have been adopted by reference in the Rules relating to Subordinate

Civil Courts, therefore, the decision taken by the authorities to supply all Group C vacancies by direct recruitment cannot be sustained. Thus, learned

Single Judge was justified in holding that the Group D employees are entitled to quota of 45% for promotion to Group C posts.

Although, there is no fundamental right to promotion, however, every Government Servant has a fundamental right to be considered for promotion

in accordance with the Recruitment Rules. In the present case, the Recruitment Rules provide such right to the respondent, therefore, the denial of

right to be considered to the respondent cannot be sustained.

In view of the aforesaid reasons, we concur with the view taken by learned Single Judge. There is no merit in these appeals, the same are hereby

dismissed. No order as to cost.