Jag Singh vs State Of Uttarakhand & Others

Sudhanshu Dhulia, J

The petitioner was appointed as a Tube Well Operator in the Irrigation Department in the year 1974 and thereafter in a fresh selection process he was made a "Tube Well Mistri" in the year 1982. As a "Tube Well Mistri", the petitioner got his first promotional pay scale vide order dated 28.06.2012, w.e.f. 05.03.1996 after putting 14 years of service. The petitioner was also granted second promotional pay scale by the same order i.e. 28.06.2012, w.e.f. 05.03.2006.

Now according to the petitioner, he is liable to get the benefit of the third Assured Career Progression Scheme, which is given after completion of 26 years of continuous service. However, this is being denied to the petitioner as the stand which has been taken by the State Government is that in the year 1982 the petitioner was promoted to the post of "Tube Well Mistri" and his service will be counted from 1982 and since two promotions have already been granted to the petitioner, the third Assured Career Progression is not permissible.

The only question which this Court has to determine is whether the petitioner's designation as "Tube Well Mistri" in the year 1982 was a fresh selection or a promotion.

Learned counsel for the petitioner Sri Alok Mahra has relied upon a decision of a Coordinate Bench of this Court passed in WPSS No.1485 of 2014 "Gyan Chand Vs. Directorate, Accounts and Others" dated 19.09.2014, where under the similar circumstances in another writ petition a Coordinate Bench of this Court has held that the appointment of "Tube Well Mistri" from "Tube Well Operator" is not a promotion but a fresh selection. The relevant portion of the said judgment reads as under:-

"7. All that has to be decided by this Court is as to whether the appointment of the petitioner was by way of promotion or by way of direct recruitment. It is an admitted fact that before becoming Section Mistri petitioner faced examination and only after qualifying such examination he was appointed on the post of Section Mistri in the year 1982 whereas such a procedure is not prescribed in the promotion channel. This fact is admitted to the learned Standing Counsel representing the respondents/State that in case of simple promotion any such procedure is not followed. The appointment of the petitioner as Mistri was, therefore, a fresh appointment. This being the finding, the petitioner is entitled to be given second promotional pay scale.

In view thereof, the writ petition is allowed. Order dated 25.04.2014, passed by the respondent no. 2 / Superintending Engineer, Tubewell Division (Mechanical), Dehradun, refusing the pension claim of the petitioner is hereby quashed. A mandamus is issued to the respondents to grant the pension to the petitioner in accordance with the second promotional pay scale, recalculation be done and pension refixed within 12 weeks from the date a certified copy of this order is produced.

No order as to costs."

Learned counsel for the petitioner submits that the case of the petitioner is also covered by the judgment of Coordinate Bench of this Court in the case of "Gyan Chand Vs. Directorate, Accounts and Others", passed in WPSS No.1485 of 2014, a fact which is admitted by the learned Standing Counsel, though he has not been able to ascertain whether any SLP has been filed against the said order or not.

In view thereof, the present writ petition is also disposed of on the same terms and conditions as passed by this Court in WPSS No.1485 of 2014 (Gyan Chand Vs. Directorate, Accounts and Others). The impugned order dated 16.06.2016 is hereby quashed. Let the designation of the petitioner be considered as "Tube Well Mistri" as a fresh selection. The petitioner shall be given the benefit of third Assured Career Progression Scheme in accordance with law.