Judgment

DR. AR. LAKSHMANAN, J. - Leave granted.

2. This civil appeal is preferred against the final order and judgment of the High Court of Uttaranchal at Nainital, which held that, it was appropriate to consider the grant of discretionary relief to the respondent in his h promotion and consequential benefits.

The brief facts of the present matter are enumerated below:

On 25 - 10 - 1977, the respondent, Mr Dinesh Kumar Sharma was a appointed in Subordinate Agriculture Service Group I on the post of Senior Chemical Assistant, Research (Chemistry Branch) through the Public Service Commission, U.P., Allahabad. Fifteen years service in Subordinate Agriculture Service Group I is the eligibility criteria for being considered for next higher promotion. In the year 1992 - 93, respondent became eligible for the said promotion.

4. On 31 - 3 - 1995, the Governor of Uttar Pradesh promulgated the U.P. Agriculture Group II Service Rules, 1995 providing for the selection, appointment, probation, seniority, promotion, etc. Rule 21 states that the date of substantive appointment will be the basis of promotion. On 1 - 5 - 1996 and 1 - 6 - 1996, two Class II posts in the Hill Sub - Cadre became vacant due to retirement of two officers. These appointments were to be made by direct recruitment as well as by promotion. Rule 17 states that, if in any year of recruitment appointments are made both by direct recruitment and promotion a combined select list will be prepared by taking the names from the relevant list and "the first name in the list will be of the person appointed by promotion".

5. On 19 - 11 - 1999, the Secretary to the Government of Uttar Pradesh of d the Agriculture Department issued an order conveying that the respondent has been selected for Subordinate Agriculture Service Class I (Chemistry Branch) in the substantive vacancy for the year 1997 - 98 in the scale of Rs 8000 - 275 - 13,500, after consultation with the State Public Service Commission.

6. On 4 - 4 - 2001, the U.P. Government Agriculture Department issued an order directing that those employees who were already members of the Hill Sub - cadre and posted at Uttaranchal have been finally allocated to the Uttaranchal Government in which the name of the respondent was shown at Serial No. 30.

7. Thereafter on 17 - 7 - 2001 and 27 - 5 - 2002, the respondent made two representations to the Department contending that his seniority may be Counted from the year 1995 - 96 with all the consequential benefits as the posts fell vacant in that year. Further on 12 - 6 - 2002, the respondent made another representation stating that his earlier two representations were not decided Upon and that he should be promoted with effect from the date of occurrence of vacancy.

8. On 1 - 10 - 2002, the Government of Uttaranchal issued office memorandum conveying its decision of rejecting the claim made by the respondent.

9. The respondent filed Writ Petition No. 369 of 2004 on 21 - 11 - 2004 praying the High Court to issue a writ of mandamus to promote him with effect from 1995 - 96 with all consequential benefits. However, the ~ respondent in his writ petition has suppressed the fact that the Government had denied the claim the respondent had made by way of representations dated 17 - 7 - 2001, 27 - 5 - 2002 and 12 - 6 - 2002. The appellants filed their counter - affidavit stating the rejection of the claim of the respondent in the High Court on 23 - 3 - 2005.

10. The Division Bench of the High Court of Vttaranchal vide its final order and judgment dated 29 - 3 - 2005 held that "the Government is directed to reconsider the matter and send it back to the Commissioner for appropriate orders suitable in the facts and circumstances of the case".

11. It is against this order of the High Court the appellants are before this Court by way of special leave.

12. After a perusal of the facts involved here, we feel that the issues that need to be addressed by us in this case are:

(i) Whether the respondent has