IMPORTANT POINT
When rule requires fitness as a criteria for promotion, appointing authority is competent to determine minimum fitness standard.

Judgment

J.S. KHEHAR, J.

1. Heard learned counsel for the parties.

2. The applications for impleadment are dismissed as no ground for impleadment is made out.

3. The State of Uttaranchal (now Uttarakhand) is in appeal against a number of orders passed in a bunch of cases on 04.03.2006. The issue which was the subject matter of consideration before the High Court pertains to the criterion for promotion from Group `D' service, to the lowest ranks of ministerial posts in Group `C' service. Even though, various Rules were framed from time to time delineating the manner and method for onward promotion from Group `D' service to the lowest ranks of ministerial posts, yet we are satisfied, that insofar as the present controversy is concerned, the same would be regulated by the Uttaranchal Government Servants (Criterion for Recruitment by Promotion) Rules, 2004 (hereinafter referred to as the `2004 Rules'). The aforestated Rules were notified on 15.06.2004. Rule 1 of the 2004 Rules reads as under:

“1. Short title Commencement and Extent-(1) These rules may be called, the Uttaranchal Government Servants (Criterion for Recruitment by Promotion) Rules, 2004.

(2) They shall come into force at once.

(3) They shall apply to a recruitment by promotion to a post or service for which no consultation with the Public Service Commission is required on the principles to be followed in making promotions under the Uttaranchal Public Service Commission (Limitation of Functions) Regulations, 2003, as amended from time to time.”

4. A perusal of Sub-rule (3) of Rule 1 explicitly mandates that the 2004 Rules would regulate promotion to such posts with reference to which consultation with the Public Service Commission is not required. It is not a matter of dispute, that the promotional posts under consideration, do not require consultation with the Public Service Commission, and as such, the 2004 Rules would apply to the promotional avenues under consideration.

5. Rule 2 of the 2004 Rules is also of material relevance. During the course of hearing, learned counsel for the rival parties invited our attention to different Rules framed under Article 309 of the Constitution of India, promulgated in the years 1985, 1994 and 2004 (besides the 2004 Rules). It is, therefore, that Rule 2 of the 2004 Rules assumes significance. The same is being extracted hereunder:

“2. Overriding effect-These rules shall have effect notwithstanding anything to the contrary contained in any other service rules made by the Governor under the proviso to Article 309 of the Constitution, or Orders, for the time being in force.”

A perusal of Rule 2 of the 2004 Rules leaves no room for any doubt, that the 2004 Rules have an overriding effect, notwithstanding anything to the contrary contained, in any other Service Rules promulgated under Article 309 of the Constitution of India. Suffice it to state, that all the other Rules brought to our notice, had been notified prior to the Notification of the 2004 Rules (notified on 15.06.2014). Thus viewed, it is imperative for us to conclude, that the 2004 Rules have an overriding effect on the other Rules, to which our attention was invited, during the course of hearing.

6. Insofar as the present controversy is concerned, the same shall have to be determined with reference to Rule 4 of the 2004 Rules. The above Rule, was also the only Rule relied upon by the High Court, while adjudicating upon the controversy. Rule 4 aforementioned is being reproduced below:

“4. Criterion for Recruitment by Promotion-Recruitment by promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any service carrying the pay scale the maximum of which is Rs.18,300 or above shall be made on the basis of merit, and to the rest of the posts in all services to be filled by promotion, including a post where promotion is made from a Non-gazetted post to a Gazetted post or from one service to another service, shall be made on the basis