Pushkar Singh vs State Of Uttarakhand & Another

Lok Pal Singh, J

1) Petitioner has invoked the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India, by way of filing present writ petition, seeking writ in the nature of mandamus directing the respondents to promote the petitioner on the post of driver from the date juniors to the petitioner have been promoted on the aforesaid post of driver, i.e., 30.06.2005 with all consequential benefits.

2) Brief facts, as narrated in the writ petition, are that the petitioner was initially appointed as Tandoorman in the Estate Department of the then Uttar Pradesh Government vide order dated 16.11.1998. It is averred that major work in the Estate Department is regarding maintaining staff cars for VVIPs and State guests apart from their hospitality. The petitioner was having valid driving licence and all other eligibility to discharge the duties of driver and right from the Estate Department of erstwhile Uttar Pradesh, the petitioner had discharged the duties of driver with the State guests. It is also averred in the writ petition that since the petitioner is permanent resident of State of Uttarakhand, after creation of State of Uttarakhand, he requested that he be allocated the State of Uttarakhand. The petitioner was allocated in the State of Uttarakhand only on 17.12.2007, but the allocation order did not prescribe any date as to from which date the petitioner shall be allocated to the State of Uttarakhand. It is stated that in any case, the petitioner should be deemed to be allocated in the State of Uttarakhand from the date of its creation. The petitioner is continuously working in the Estate Department of Uttarakhand since 2007.

3) It is also stated in the writ petition that a specific request has been made by the petitioner to the authorities at Uttarakhand that he is discharging the duties as driver since 1997, though his substantial appointment is as a Tandoorman. The authorities having considered the request made by the petitioner vide order dated 22.04.2009 granted permission to him to discharge the duties of driver in addition to the duties as Tandoorman. It is specifically mentioned in the writ petition that other similarly situated persons, appointed on Class IV posts, who were discharging their duties as drivers, were given one time opportunity by the State Government to be promoted as driver. The State Government has framed Rules to regulate the services of the drivers by farming the Uttarakhand Government Department Driver Services Rules, 2003 (hereinafter referred to as 'the Rules'). As per Rule 7 of the Rules, the recruitment of the drivers was required to be made through direct recruitment. However, this particular Rule 7 was amended and notified on 06.06.2005, wherein for a particular recruitment year 2004-05, amendment has been made that the Class IV employees / persons who have completed three years of service and possesses the requisite qualification required for the driver as provided in Rule 11 of the Rules, shall be recruited against the vacancies meant for direct recruitment. It is categorically mentioned that by granting such benefits of amendment to Class IV persons, the persons who were junior to the petitioner have been granted the appointment / promotion as driver vide order dated 30.06.2005.

4) On coming to know of said fact, the petitioner made representations to different authorities. In reply to one such representation made by the petitioner through the learned Advocate General, it was replied that since the petitioner has been allocated State of Uttarakhand in the year 2007 and when the case of the juniors to the petitioner, working on Class IV posts, has been considered for promotion and appointment as driver, the petitioner was not available to be considered for promotion and hence his case could not be considered. It was also stated that since the amendment was carried out for granting the benefit only for one particular recruitment year and hence at that stage the benefit of the Rules framed for 2004-05, the promotion / appointment of the petitioner on the post of driver could not be made. The petitioner has challenged the decision of the respondents on the ground that since those Class IV employees, who were junior to the petitioner, have been promoted / appointed on the post of driver, the respondents should not have rejected the claim of the petitioner as the petitioner should not be made to suffer for inaction of the respondents in not allocating him for the State of Uttarakhand well within time.

5) Counter affidavit has been filed by respondent nos. 1 and 2, wherein it has been stated that the provisions of the amended Notification no. 11542 dated 06.06.2005 has been made applicable only for the selection year 2004-05 under which those Class IV employees, who were appointed in the department prior to the selection year 2004-05 or before or have been allocated from the erstwhile State of U.P. to the State of Uttarakhand. It has been further submitted that since the aforesaid provisions were applicable only for the selection year 2004-05 and the petitioner has been allocated to the State of Uttarakhand vide allocation order no. 4452/II/32-1-07 dated 17th December 2007, consequently, the name of petitioner could not be considered for the selection year 2004-05. However, after the selection year 2004-05 for the recruitment on the post of driver the earlier Rules i.e. Uttaranchal Government Department Driver Service Rule, 2003, are in force. In reply to the averment made in the writ petition that juniors to the petitioners have been promoted on the post of driver, it has been submitted that since the aforesaid provisions by which three persons were given promotion to the post of driver, were only for the selection year 2004-05 and the petitioner has been allocated to the State of Uttarakhand in 2007, consequently the name of petitioner could not be considered for the selection year 2004-05.

6) I have heard the learned counsel for the parties and perused the entire material available on record.

7) Learned counsel for the petitioner would argue that the petitioner fulfills the requisite technical qualification to be promoted as driver and is having requisite length of service to be considered for promotion. He would further argue that the petitioner has always served the State of Uttarakhand and remained posted in Uttarakhand Sadan even prior to the date State of Uttarakhand was carved out and he could not be denied promotion merely on the ground that the order of allocation of the petitioner to the State of Uttarakhand was made subsequently. It is contended that the petitioner is not at fault if he was not allocated to the State of Uttarakhand well within time and he cannot be made to suffer indefinitely for inaction on the part of the respondents.

8) Per contra, learned counsel for the State would argue that the post of driver in the Estate Department is being governed by the provisions of Uttaranchal Government Department Driver Service Rule, 2003 notified vide Notification no. 590 dated 13.05.2003 issued by Personnel Section 2. He would further argue that the Personnel Department vide Notification no. 1542 dated 06.06.2005 has notified its Uttarakhand Government Department Driver Service (First Amendment) Rules, 2005, whereby the Rule 7 of the original Rules has been amended and in view of the amended notification in the entire State amongst such Class IV employees holding the qualification as per the amended notification have been granted promotion on the post of driver, likewise promotions were also granted to the post of driver from the Class IV employees working in the Estate Department, who fulfilled the eligibility criteria as per the amended rules, the Personnel Department had made said amendment only for the selection year 2004-05 and at present the provisions of Uttaranchal Government Department Driver Service Rules, 2003 are in force.

9) Having considered the rival contentions, in my opinion, as per the provisions contained in the Uttar Pradesh State Reorganization Act, 2000, even if the petitioner is allocated to the State of Uttarakhand at later date, the same will relate back to the date of reorganization i.e. 09.01.2000 and, as such, case of the petitioner should have been considered within zone of consideration for the selection year 2004-05, inasmuch as the persons who were junior to the petitioner in the State were promoted on the post of driver availing the benefit of the Rules. Furthermore, the petitioner is driving the vehicles since very inception of his induction in service i.e. from the year 1997. The allocation order of the petitioner nowhere prescribes the date from which it will be made applicable and as per the provisions contained in Reorganization Act the same will relate back to the date of creation of the State of Uttarakhand and hence the petitioner is entitled to have been considered for promotion on the post of driver for the selection year 2004-05.

10) In the case is hand the petitioner is discharging the duties as driver for the last 20 years and his work and conduct has been appreciated by VVIPs and there is not even a single allegation of misconduct or dereliction of duty on the part of the petitioner, even then the department has taken a hyper-technical approach and denied promotion to the petitioner on the post of driver. Furthermore, petitioner has always served the State of Uttarakhand and he was carrying out his services in Uttarakhand Sadan on the date State of Uttarakhand was carved out from the erstwhile State of Uttar Pradesh.

11) The respondent authority appears to have lost sight of the object of the Rules and instead had gone to the technicalities thereof. I agree with the contention of learned counsel for the petitioner that even if the petitioner is allocated to the State of Uttarakhand at a later date, the same will relate back to the date of reorganization i.e. 09.01.2000. Thus, the case of the petitioner falls within zone of consideration for the selection year 2004-05, inasmuch as the persons who were junior to the petitioner in the State were promoted on the post of driver availing the benefit of the Rules. Petitioner is also entitled for the benefit of the said Rules. The respondents should not have denied the benefits of the said Rules to the petitioner on hyper-technical ground, more particularly, when the petitioner is not at fault in claiming his rights to be allocated for the State of Uttarakhand within time.

12) For the reasons as discussed above, the view taken by the respondent authorities that the petitioner cannot be promoted to the post of driver as he has been allocated to the Sate of Uttarakhand after the year 2004-05, is erroneous and unsustainable in law.

13) The writ petition is, accordingly, allowed. A mandamus is issued to the respondent no. 2 to consider the case of the petitioner for promotion on the post of driver from the date juniors to the petitioner have been promoted along with all consequential benefits, within a period of one month from the date certified copy of this order is produced before such authority. No order as to costs.