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CASE NO.:

Appeal (civil) 5573 of 2006

PETITIONER:

State of Uttaranchal & Anr .... Appellant (s)

RESPONDENT:

Dinesh Kumar Sharma ....Respondent(s)

DATE OF JUDGMENT: 04/12/2006

BENCH:

Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT:

JUDGMENT

(Arising out of SLP (C) No. 12966/2005)

Dr. AR.Lakshmanan, J

Leave granted.

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 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 appointed as Subordinate Agriculture Services

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.

On 31.03.1995, the Governor of Uttar Pradesh

promulgated U.P. Agricultural Group II Service Rules 1995

providing for the selection, appointments, probation, seniority,

promotion etc. Rule 21 states that the date of substantive

appointment will be the basis of promotion. On 01.04.1996

and 01.05.1996, 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 Promotion. Rule 17 states that, if in any year of recruitment

appointments are made both by direct recruitment and

promotion a combined select list 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".

On 19.11.1999, the Secretary to government of Uttar

Pradesh of the Agriculture Department issued an order

conveying that the respondent has been selected for

subordinate Agriculture Service Class-I (Chemistry) in the

substantive vacancy for the year 1997-98 in the scale of

Rs.8000-275-13500, after consultation with the State Public

Service Commission.

On 04.04.2001, 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 Uttaranchal

Government in which the name of the respondent was shown

at serial No.30.

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Thereafter on 17.07.2001 & 27.05.2002, 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 vacancies fell vacant in that

year. Further on 12.06.2002, 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.

On 01.10.2002, the Government of Uttaranchal issued

Office Memorandum conveying its decision of rejecting the

claim made by the respondent.

The respondent filed Writ petition No.369/2004 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 17.07.2001, 27.05.2002 and

12.06.2002. The appellants filed their counter affidavit stating

the rejection of the claim of the respondent in the High Court

on 23.03.2005.

The Division Bench of the High Court of Uttaranchal vide

its final order and judgment dated 29.03.2005 hel