Point of Law: Promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post.

JUDGMENT :

RAMESH SINHA, J.

1. Supplementary affidavit filed today on behalf of the appellant is taken on record.

2. Heard Sri. Gaurav Mehrotra, learned Counsel assisted by Sri. Akber Ahmad, learned Counsel for the appellant and Sri. Amitabh Rai, learned Additional Chief Standing Counsel for the State/respondents.

3. The instant intra Court appeal has been filed by the appellant, Giraja Shankar Tiwari, challenging the judgment and order of the learned Single Judge dated 16.08.2021 passed in Service Single No. 3659 of 2019, Giraja Shankar Tiwari vs. State of U.P. and Others, by which the writ petition filed by the writ petitioner/appellant herein was dismissed.

4. According to the appellant, he was appointed as District Agriculture Officer (Section-B) on 02.06.1970. Subsequently, he was promoted to the post of Deputy Director, Agriculture on 03.08.1986 and thereafter, he was promoted to the post of Joint Director, Agriculture on 08.07.2004. His terms and conditions of service were governed by U.P. Agriculture (Group-A Posts) Service Rules, 1992 (hereinafter referred to as ‘Rules 1992’) as amended from time to time. Rule 5 of Rules, 1992 provided the channel of promotion from the post of Joint Director to Additional Director, Agriculture and thereafter to the post of Director, Agriculture. The criteria for promotion is merit.

5. It has been stated by the appellant that he has filed a writ petition, bearing No. 1722 (S/B) of 2005, before this Court, seeking his promotion on the post of Additional Director (Agriculture). A Division Bench of this Court, vide order dated 18.01.2006, disposed of the aforesaid writ petition, which is reproduced as under:

“Heard Sri. P.N. Mathur, learned Senior Advocate assisted by Sri. Manoj Singh for the petitioner and the learned Standing Counsel.

During the pendency of the writ petition, the petitioner has been promoted on the post of Additional Director (Agriculture) on 31.12.2005. The State Government has amended the Rules on 24.08.2005. One post of Director Agriculture is lying vacant after the retirement of Mr. Anand Kumar Misra. The petitioner has alleged that he will attain the age of superannuation on 31.01.2006. We, therefore, dispose of the writ petition with a direction to the opposite parties to consider the candidature of the petitioner, along with other eligible persons, for promotion to the post of Director, Agriculture in accordance with Rules, within ten days from the date a certified copy of this order is produced.”

6. Appellant has stated that though one post of the Director Agriculture (Marketing) was fallen vacant on 31.12.2005 when one Sri. Anand Kumar Misra retired but even then his candidature was not considered on the vacancy caused due to retirement of Sri. Anand Kumar Misra, hence he had filed Contempt Petition bearing No. 1515 of 2006 Giraja Shanker Tiwari vs. Sri. Naveen Chand Bajpai and Others, which was disposed of finally vide order dated 19.09.2012 inter-alia on the ground that the candidature of the appellant was considered by the Departmental Promotion Committee but it was not in his favour, hence liberty was granted to him to ventilate his grievance, if any, before the appropriate forum. Feeling aggrieved by not considering his name for promotion on the post of the Director, Agriculture, the appellant has filed Writ Petition bearing No. 1610 (S/B) of 2012, before this Court, which was allowed vide order dated 01.09.2015 with a direction to consider his name for promotion to the post of Director, Agriculture (Marketing) w.e.f. 01.01.2006 along with all consequential benefits and decide the same within two months from the date of production of a certified copy of the order.

7. In pursuance of the order dated 01.09.2015, the appellant has preferred a representation, which was considered by the respondents and vide Office Memorandum dated 10.11.2015, denied his promotion on the post of the Director, Agriculture (Marketing) on placing reliance upon the Office Memorandum dated 23