IMPORTANT POINT
Notional promotion claims require a junior's promotion to be ignored; seniority and timing of validation examinations are critical in determining eligibility.

JUDGMENT :

Manoj Kumar Tiwari, J.

Petitioner is serving as Officiating Executive Engineer in District Level Development Authority, Uttarkashi. Pursuant to order dated 09.01.2024, passed by Uttarakhand Public Services Tribunal, Dehradun in Claim Petition No. 04/SB/2024, Additional Secretary, Housing Department, Government of Uttarakhand decided petitioner’s representation dated 24.01.2024 and rejected his claim for notional promotion against degree holder quota post of Assistant Engineer of Selection Year 2011-2012. Thus, feeling aggrieved, petitioner has filed this writ petition seeking following reliefs:-

“I. To issue a writ, order or direction in the nature of certiorari quashing the impugned order/decision dated 13-05-2024 passed by Respondent No. 1 and 2 (Annexure No. 1 to the writ petition.

II. To issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to grant seniority to the petitioner in the proposed Review DPC w.e.f. 2011-12 and to grant notional promotion to the petitioner on the vacant post of Assistant Engineer before 2018 i.e. 2011-12.”

2. In his representation, petitioner submitted that one Mr. Girish Chandra Bhatt was promoted as Assistant Engineer on 04.10.2013 against a degree holder quota post on the strength of B. Tech. degree obtained through distance mode from Institute of Advanced Studies in Education, Deemed University Sardarshahar, Rajasthan in the year 2010; while, petitioner obtained B. Tech. degree from the same University in the year 2006, and petitioner also qualified the Validation Examination, held in terms of judgment rendered by Hon’ble Supreme Court in the case of Orissa Lift Irrigation Corp. Ltd. v. Rabi Sankar Patro & others, (2018) 1 SCC 468, in the first attempt, therefore, the promotion given to Mr. Girish Chandra Bhatt is liable to be cancelled and petitioner deserves to be notionally promoted against the said vacancy.

3. The State Government has passed a detailed order on 13.05.2024, whereby petitioner’s representation has been rejected. One of the grounds taken for rejecting petitioner’s claim for notional promotion to the vacancy, against which Mr. Girish Chandra Bhatt was promoted, is that One Mr. Sudhir Kumar Gupta, who also obtained B. Tech. degree through distance mode in 2006 and has also qualified Validation Examination, conducted by AICTE pursuant to judgment rendered by Hon’ble Supreme Court, is senior to the petitioner, therefore, the claim of the petitioner for notional promotion against vacancy of recruitment year 2011-2012, cannot be accepted.

4. Learned counsel for petitioner contends that the promotion given to Mr. Girish Chandra Bhatt as Assistant Engineer on 04.10.2013 was subject to decision of Hon’ble Supreme Court in the matter of Orissa Lift Irrigation Corp. Ltd. (supra), therefore, after judgment of Hon’ble Supreme Court, the said promotion was liable to be cancelled, however, the promotion given to Mr. Bhatt was not cancelled and he was permitted to serve as Assistant Engineer till his retirement. Thus, he submits that the post held by Mr. Girish Chandra Bhatt should be deemed to have fallen vacant on the date of judgment rendered by Hon’ble Supreme Court, i.e. 22.01.2018 and petitioner should be promoted against the said post, at least w.e.f. 23.01.2018.

5. Per contra, Mr. Jayvardhan Kandpal, learned Standing Counsel appearing for the State submits that the claim for notional promotion staked by petitioner is unsustainable for the following reasons:-

A. One Mr. Sudhir Kumar Gupta, who is senior to petitioner and had obtained B. Tech. degree in the same year, cannot be superseded in the matter of promotion and petitioner has no claim better than that of Mr. Sudhir Kumar Gupta.

B. Petitioner passed Validation Examination conducted by AICTE on 30.07.2018 and before passing the said examination, he was not entitled to be considered for promotion against degree holder quota post.

C. Petitioner is promoted as Assistant Engineer aga