Can't Presume That No Rules For Promotion Exist Merely Because Order Sanctioning The Post Does Not Indicate Such Rules: Uttarakhand High Court

The Uttarakhand High Court has held that merely because the communication sanctioning a post does not indicate any promotion Rules, it cannot be presumed that there exists no Rule for promotion to the higher post from the feeder cadre. A Division Bench of Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe observed, "…it does not stand to reason that, for gaining eligibility for promotion from one post to another, there would be no requirement of minimum qualifying service in the feeder cadre. Merely because the order sanctioning the posts of Assistant Accounts Manager, did not indicate the promotion Rules, it does not follow that there was no Rule framed or applicable for promotion, requiring minimum service in the feeder cadre." Factual Background: The instant Special Appeal was preferred by the appellants after obtaining leave, since they were not parties to the writ proceedings, wherein the impugned order was passed by the Single Judge on 11.08.2017. The writ petitioners, who are respondent nos. 1 to 4 in the present matter, had preferred a writ petition assailing the order dated 09.09.2016 passed by the respondent/ authorities, whereby the respondent nos. 7 and 8 in the present Special Appeal were promoted to the post of Assistant Accounts Manager in the Uttarakhand Forest Development Corporation. The appellants have assailed the impugned order on the ground that the learned Single Judge wrongly proceeded on the premise that, for promotion to the post of Assistant Accounts Manager, the persons working in the feeder post of Accountant should have substantive service of at least 7 years, as a condition of eligibility. According to the appellants, there is no minimum qualifying service required by an Accountant for becoming eligible for consideration for promotion to the post of Assistant Accounts Manager in the respondent corporation. Contentions of the Appellants: Mr. Bhagwat Mehra, counsel for the appellants, contended that prior to the bifurcation of the State of Uttarakhand from the State of Uttar Pradesh, in the Uttar Pradesh Forest Development Corporation, from which the respondent corporation has been carved out, the service conditions were governed by Regulations framed in the year 1985. In the said corporation, in the promotion Rules, for promotion to the post of Accountant from Assistant Accountant; from Accountant to Senior Accountant and; from Senior Accountant to Senior Auditor, the minimum required service of 7 years, in the feeder cadre was prescribed. However, he sought to submit that upon the creation of the State of Uttarakhand, the respondent corporation was created in the year 2001. Therefore, after 2001, the 1985 Regulations of the Uttar Pradesh Forest Development Corporation were no longer applicable. He further submitted that on 06.06.2007, a completely new cadre of officers was created in the respondent corporation. However, the said communication did not indicate as to what were the promotion Rules applicable for promotion. Thus, he urged that the mandatory requirement of 7 years of experience must be deemed to have been waived. Contentions of the Respondents: Mr. Abhijay Negi, counsel for the writ petitioners/ respondent nos. 1 to 4 pointed to Sections 67 and 74, of the Uttar Pradesh Reorganisation Act, 2000, which led to the creation of the State of Uttarakhand. He submitted that the respondent corporation was carved out and created from the Uttar Pradesh Forest Development Corporation, and that has continued to function and operate in the State of Uttarakhand. By placing reliance on Section 74 of the Act, he argued that the conditions of service of persons serving in connection with the affairs of the State, could not be altered to their disadvantage, and they continued to operate as they were operating prior to the bifurcation of the State. He submitted that no previous approval of the Central Government was obtained so as to remove the requirement of 7 years' service in the feeder cadre of Accountants, for consideration for promotion as Assistant Accounts Manager. Again, it was highlighted that the writ petitioners had much longer tenure of service in the feeder grade, and any relaxation of the said requirement would have worked to their disadvantage, which could not have been done. Court's Observations: The Court held that there is no merit in the argument that there was no requirement of any minimum qualifying service in the feeder cadre of Accountants for consideration for promotion to the next higher post, i.e. Assistant Accounts Manager. "This is for the reason that even before the bifurcation of the State, and creation of the respondent/ Corporation, under the Uttar Pradesh Forest Corporation, admittedly, by virtue of the Regulations framed in the year 1985, 07 years' minimum qualifying service, in the feeder cadre of Accountants was essential ...

Can't Presume That No Rules For Promotion Exist Merely Because Order Sanctioning The Post Does Not Indicate Such Rules: Uttarakhand High Court

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Can't Presume That No Rules For Promotion Exist Merely Because Order Sanctioning The Post Does Not Indicate Such Rules: Uttarakhand High Court

Jyoti Prakash Dutta

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