The main legal point established in the judgment is that the seniority of a government servant can be determined based on the rules in force at the time of promotion, and any conditions imposed in the promotion order that are contrary to the prevailing rules are invalid and have no legal effect.

JUDGMENT :

Vipin Sanghi, J.

The State of Uttarakhand has preferred the present writ petition to assail the judgment dated 11.12.2018, rendered by the Uttarakhand Public Services Tribunal, Bench at Nainital, in Claim Petition No.15/NB/DB/2013, preferred by the respondent-claimant Suresh Chandra.

2. The Tribunal has allowed the said claim petition. The respondent No.2 in the claim petition, i.e. the Chairman, Board of Revenue, Uttarakhand, Dehradun was directed to redetermine the seniority of Registrar Kanoongo, taking into consideration the Uttar Pradesh Avar Rajswa Lipik (Registrar Kanoongo Aur Sahayak Registrar Kanoongo) Sewa Niyamawali, 1958, and Rule 7 of the Uttarakhand Government Servants Seniority Rules, 2002 within a period of three months from the date of presentation of the certified copy of the impugned judgment.

3. The private respondent-claimant Suresh Chandra joined as Patwari on 27.03.1984. The next promotional post for which he offered his candidature was Assistant Kanoongo. The promotional exercise in District Udham Singh Nagar, where the respondent-claimant was posted, was undertaken in the year 2002. However, the respondent-claimant’s claim for promotion was rejected on the ground that he was above 35 years of age. He challenged his disqualification by preferring a writ petition being Writ Petition No.840 of 2004 (S/S) before this Court, which was allowed on 16.02.2010, and the Division Bench of this Court upheld the said judgment in Special Appeal No.22 of 2010 vide order dated 26.03.2010.

4. In compliance of the judgment, the respondent-claimant was promoted to the post of Registrar Kanoongo on 24.04.2010. However, a condition was put in his promotion order that his seniority amongst the serving Registrar Kanoongo would be determined on the basis of substantive appointment on the post of Patwari. The claimant’s service on the post of Registrar Kanoongo was confirmed vide order dated 25.04.2012.

5. The issue which arose for consideration before the Tribunal was whether the claimant’s seniority was liable to be determined under the Niyamawali of 1958 and Rule 7 of the Uttarakhand Government Servants Seniority Rules, 2002, or under the Uttarakhand Registrar Kanoongo Service Rules, 2011. The respondent-claimant contended that since he was due for promotion in the year 2002 as Assistant Kanoongo, and even for further promotion as Registrar Kanoongo in the year 2010, his promotion could only be governed by the Niyamawali of 1958 and Rule 7 of the Uttarakhand Government Servants Seniority Rules, 2002, and not by the Uttarakhand Registrar Kanoongo Service Rules, 2011, which came into force much later.

6. The submission of the State Government, on the other hand, was that since the substantive appointment was granted to the respondent-claimant in the year 2012 by when the Uttarakhand Registrar Kanoongo Service Rules, 2011 had come into force, his services would be governed by the Uttarakhand Registrar Kanoongo Service Rules, 2011. The Tribunal has rejected this submission of the Government by observing as follows:-

“16. The real dispute, which is before this court for consideration is, as to whether by the order dated 23.04.2010, what was granted, and, whether the condition imposed in para-2 of this order, is in compliance of the order passed by the Hon’ble High Court and whether it is as per the Rules or not. Learned counsel for the petitioner has argued that the seniority on the post of Registrar Kanoongo can be fixed only as per the prevailing Service Rules and according to the judgment of the Hon’ble High Court, the petitioner was entitled to get his seniority above his juniors with the date when their juniors were promoted and he was denied. The petitioner has also argued that the order of promotion was issued in April 2010 and at that time, the prevalent/relevant Service Rules, was the Niyamawali of 1958 because the new Services Rules of 2011 were enforced on 14th November 2011. The petitioner was entitled for promoti