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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3984 OF 2012

State of Uttarakhand and another … Appellants

versus

Umakant Joshi … Respondent(s)

with

CIVIL APPEAL NO. 3982 OF 2012

Sudhir Chandra Nautiyal … Appellant(s)

versus

Umakant Joshi and others … Respondents

CIVIL APPEAL NO. 3983 OF 2012

Surendra Singh Rawat … Appellant(s)

versus

Umakant Joshi and others … Respondents

J U D G M E N T

G. S. Singhvi, J.

1. Whether  the  Uttarakhand  High  Court  could  ordain  promotion  of  

respondent No.1 – Umakant Joshi to the post of General Manager with  

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effect from 16.11.1989, i.e., prior to formation of the State of Uttaranchal  

(now known as the State of Uttarakhand) with the direction that he shall be  

considered for promotion to the higher posts with effect from the dates  

persons  junior  to  him  were  promoted  is  the  question  which  arises  for  

consideration in these appeals, one of which has been filed by the State of  

Uttarakhand and the Director of Industries,  Dehradun and the other two  

have  been  filed  by  Sudhir  Chandra  Nautiyal  (hereinafter  described  as,  

‘Appellant  No.1’)  and  Surendra  Singh Rawat  (hereinafter  described  as,  

‘Appellant No.2’) respectively against order dated 4.6.2010 passed by the  

Division Bench of that High Court in Writ Petition No.324 of 2008.

2. The service profile of Appellant No.1:

2.1 On being selected by the Uttar Pradesh Public Service Commission  

(for short, ‘the Commission’), appellant No.1 was appointed to Class-I post  

in  the  Industries  Department  of  the  Government  of  Uttar  Pradesh with  

effect from 7.2.1994.

2.2 After formation of the State of Uttaranchal, in terms of Section 3 of  

the  Uttar  Pradesh  Reorganisation  Act,  2000  (for  short,  ‘the  Act’),  the  

Central  Government  issued  order  dated  20.12.2000  under  Section  73  

thereof and tentatively allotted appellant No.1 along with large number of  

other officers/employees of the State of Uttar Pradesh including respondent  

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No.1 to the new State of Uttaranchal.  They were finally allotted to the new  

State vide order dated 17.5.2006.

2.3 Appellant No.1 was promoted as Joint Director of Industries on ad-

hoc basis in the State of Uttarakhand with effect from 17.1.2004.  He was  

regularly promoted on that post on 23.7.2007.  After two years, he was  

promoted as Additional Director, Industries.    

3. The service profile of Appellant No.2:

3.1 Appellant No.2 was appointed in the U.P. Industries (Subordinate)  

Service in 1979.  He opted for Hill Sub-Cadre formed by the State of Uttar  

Pradesh in 1992.  His name was included in the separate seniority list of  

the officers of that cadre and on formation of the State of Uttaranchal, he  

was treated as an employee of the new State.

3.2 Appellant No.2 was promoted to U. P. Industries Class-I Service in  

1996.   He was further promoted to the post of Deputy Director/General  

Manager (Grade-I) with effect from 19.1.2004.

4. The service profile of Respondent No.1:

4.1 In response to an advertisement issued by the Commission in 1981  

for  recruitment  to  Class-II  posts  in  the  pay  scales  of  Rs.550-1200 and  

Rs.450-900, respondent No.1 applied for the post of Manager (Marketing)  

in the pay scale of Rs.550 - 1200.  He was selected by the Commission for  

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that  post  but  was  offered  appointment  on  the  lower  post  of  Manager,  

Handloom in the pay scale of Rs.450-900.   

4.2 After  joining  the  service,  respondent  No.1  filed  Writ  Petition  

No.9728 of 1986 in the Allahabad High Court and prayed for issue of a  

mandamus for his appointment on the post for which he had applied.  In  

compliance of  an interim order  passed by the High Court  on 2.3.1987,  

respondent No.1 was appointed as Manager (Marketing) with effect from  

the date of initial appointment, i.e. 23.4.1984.  The writ petition was finally  

allowed by the High Court vide order dated 1.12.1995 and a direction was  

issued  to  the  State  Government  to  give  consequential  benefits  to  

respondent  No.1.   Thereafter,  seniority  of  respondent  No.1  was  fixed  

among Class-II officers at serial No.48A.

4.3 While he was working as Manager (Marketing) in the Directorate of  

Industries, Uttar Pradesh, respondent No.1 earned adverse remarks in the  

Annual Confidential Reports for the years 1987-88, 1988-89, 1989-90 and  

1991-92.  Four  departmental  inquiries  were  also  initiated  against  

respondent  No.1  between July  1996 and March 1997.   These  inquiries  

culminated in the issuance of order dated 23.1.1999 whereby punishment  

of reduction to the minimum of the pay scale was imposed on respondent  

No.1.   As  a  sequel  to  this,  an  adverse  entry  was  made  in  the  Annual  

Confidential  Report  of  respondent  No.1  for  the  year  1995-96  casting  

reflection on his integrity.

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4.4 Respondent  No.1  submitted representation  dated 14.1.2000 to the  

State Government for reconsideration/review of the order of punishment.  

He also filed writ petition in the Allahabad High Court for quashing the  

order of punishment.

4.5 While the representation and the writ  petition filed by respondent  

No.1  were  pending  consideration,  Parliament  enacted  the  Act  and  the  

Central Government allotted the services of respondent No.1 to the new  

State.  Thereafter, respondent No. 1 made representation dated 23.12.2000  

to the Government of the new State for review of the order of punishment.  

4.6 The Allahabad High Court transferred the pending writ petition to  

the High Court of Uttaranchal (now Uttarakhand), which disposed of the  

same by relegating respondent No.1 to the alternative remedy of filing an  

application  before  the  State  Public  Services  Tribunal  (for  short,  ‘the  

Tribunal’).  

4.7 During  the  pendency  of  the  matter  before  the  Tribunal,  the  

Government  of  Uttarakhand  considered  the  representations  made  by  

respondent  No.1  and  proposed  that  the  punishment  order  may  be  

withdrawn.   The  Governor  of  Uttarakhand  approved  the  proposal.  

Thereafter, the State Government issued order dated 17.1.2005, which was  

described  as  an  Office  Memorandum  for  withdrawal  of  the  order  of  

punishment.  The relevant portion of that order is extracted below:  

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“Office Memorandum

After  due  consideration  of  the  representation  dated  14.01.2000  and  23.12.2000  submitted  by  Sh.  Uma  Kant  Joshi  against  the  punishment  given  vide  Office  Memorandum No.4482/181-81(R)/96 dated  23.01.1999 by  Secretary, Small Scale Industry Government of U.P. to Sh.  Uma  Kant  Joshi  the  then  Manager  (Marketing   and  Economic Survey) District Industry Centre, Kotdwar, Pauri  Garhwal,  present  incharge  General  Manager,  District  Industry Centre,  Udhamsingh Nagar,  the Governor hereby  accords  approval  to  withdraw  the  said  punishment  order  dated 23.01.1999 upon its merit.

Sd/- Sanjeev Chopra

Secretary”

4.8 After  about  7  months,  the  State  Government  issued  order  dated  

11.8.2005  and  expunged  the  adverse  entry  recorded  in  the  Annual  

Confidential Report of respondent No.1 for the year 1995-96.   

4.9 The Tribunal took cognizance of the aforementioned two orders and  

disposed of the petition filed by respondent No.1 as infructuous.   Soon  

thereafter,  he  submitted  a  representation  to  the  Government  of  Uttar  

Pradesh for promotion to the post of Deputy Director/General Manager,  

Industries  with  effect  from 16.11.1989,  i.e.  the  date  on  which  persons  

junior to him were promoted.  The same was forwarded to the Government  

of  Uttarakhand,  which issued  an  order  dated  11.10.2006 and promoted  

respondent No.1 to Class-I post.   However, his prayer for  retrospective  

promotion was not entertained.

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5. After about 2 years, respondent No.1 filed Writ Petition No.324 of  

2008  and  prayed  for  issue  of  a  direction  to  the  respondents  (State  of  

Uttarakhand and Director, Directorate of Industries) to give him the benefit  

of the time scale and the selection grade respectively with effect from the  

date of completion of 8 years and 14 years service and notional promotion  

to Class-I post from 1989.  In support of his claim, respondent No.1 relied  

upon the orders passed in favour of Shri R.K. Khare, who was promoted to  

Class-I post with effect from 16.11.1989.  He also relied upon orders dated  

22.1.2001 passed by the Governments of the States of Uttar Pradesh and  

Uttarakhand  whereby  large  number  of  officers  including  Shri  S.C.  

Chandola, who were senior to Shri R.K. Khare were promoted to Class-I  

posts with effect from 16.11.1989.   

6. In the reply affidavit filed on behalf of the State of Uttarakhand and  

the Director of Industries, an objection was taken to the maintainability of  

the writ petition on the ground of non impleadment of the State of Uttar  

Pradesh as party respondent.  On merits, it  was pleaded that respondent  

No.1 cannot claim parity with Shri R.K. Khare because the latter was not  

allotted to the State of Uttarakhand.  As regards Shri S.C. Chandola, it was  

averred that he was appointed on a Class-II post on 16.9.1976 and was  

assigned seniority at serial No.16, whereas respondent No.1 was appointed  

on 23.4.1984 and his seniority was fixed at serial No.49.  It was further  

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averred that at the time of allotment to the State of Uttarakhand, Shri S.C.  

Chandola was holding Class-I post in the pay scale of Rs.10,000–15,200,  

whereas respondent No.1 was holding a post in the pay scale of Rs.8,000-

13,500.

7. The Division Bench of the High Court took cognizance of orders  

dated 17.1.2005 and 11.8.2005 and held that once the order of punishment  

was  withdrawn  and  there  was  no  adverse  material  in  the  record  of  

respondent No.1, he was entitled to be promoted to Class-I post with effect  

from the date his junior Shri R.K. Khare was promoted.   The Division  

Bench accordingly directed that respondent No.1 be promoted to the post  

of  General  Manager  with  effect  from  16.11.1989  and  his  case  be  

considered for promotion to the higher posts from the dates persons junior  

to him were promoted.   

8. Before proceeding further, we may notice some other facts which  

have bearing on the decision of these appeals.  

8.1 In exercise of the powers conferred upon it by Rules18 and 39 to 41  

of the Civil Services Classification, Control and Appeal Rules, 1930, the  

Government of United Province had made the United Provinces Industries  

Service  Class-I  Rules,  1937 for  regulating  appointment  to  the  posts  of  

Director/Deputy  Director,  Member,  Harcourt  Butler  Technological  

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Institute, Heads of Sections of Harcourt Butler Technological Institute and  

Glass Technologist.  After independence, the Governor of Uttar Pradesh  

made the Uttar Pradesh Industries Service Rules, 1993 (for short, ‘the 1993  

Rules’) for regulating recruitment on various posts which were categorized  

in  two  groups,  i.e.,  Group  ‘A’  and  Group  ‘B’.   Prior  to  this,  the  

Government of Uttar Pradesh had issued G.O. dated 4.2.1989 in terms of  

which only those members in the feeder cadre were treated eligible for  

promotion who had completed 7 years’ service as on 1st July.  By another  

G.O. issued on 31.3.1993, the State Government decided that time scale  

shall  be granted to an employee on completion of  8 years’  satisfactory  

service.

8.2 By virtue of Section 3 of the Act, the new State of Uttaranchal was  

formed.  Sections 73 and 74 of the Act, which relate to services other than  

All India Services read as under:

“73.   Provisions  relating  to  other  services –  (1)  Every  person who immediately before the appointed day is serving  in connection with the affairs of the existing State of Uttar  Pradesh shall, on and from that day provisionally continue to  serve  in  connection  with  the  affairs  of  the  State  of  Uttar  Pradesh unless he is required, by general or special order of  the Central Government to serve provisionally in connection  with the affairs of the State of Uttaranchal:

Provided that every direction under this sub-section issued  after the expiry of a period of one year from the appointed  day shall be issued with the consultation of the Governments  of the successor States.

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(2) As soon as may be after the appointed day, the Central  Government shall, by general or special order, determine the  successor  State  to which every person referred to  in sub- section (1) shall be finally allotted for service and the date  with effect from which such allotment shall take effect or be  deemed to have taken effect.

(3) Every person who is finally allotted under the provisions  of  sub-section  (2)  to  a  successor  State  shall,  if  he  is  not  already serving therein be made available for serving in the  successor  State  from  such  date  as  may  be  agreed  upon  between the Governments concerned or in default of such  agreement,  as  may  be  determined  by  the  Central  Government.

74. Other provisions relating to Services – (1) Nothing in  this section or in Section 73 shall be deemed to affect on or  after the appointed day, the operation of the provisions of  Chapter  I  of  Part  XIV  of  the  Constitution  in  relation  to  determination of he conditions of service of persons serving  in connection with the affairs of the Union or any State:

Provided  that  the  conditions  of  service  applicable  immediately  before  the  appointed  day  in  the  case  of  any  person deemed to have been allocated to the State of Uttar  Pradesh or to the State of Uttaranchal the previous approval  of  the Central  Government  under Section 73 shall  not  be  varied to his disadvantage except with the previous approval  of the Central Government.

(2)  All  services  prior  to  the appointed day rendered by a  person,-

(a) If he is deemed to have been allocated to any State under  Section  73,  shall  be  deemed  to  have  been  rendered  in  connection with the affairs of that State;

(b) If he is deemed to have been allocated to the Union in  connection with the administration of the Uttaranchal, shall  be  deemed to have  been rendered in  connection with  the  affairs of the Union, for the purposes of the rules regulating  his conditions of service.

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(3) The provisions of Section 73, shall not apply in relation  to members of any All-India Service.”

8.3 On  7.11.2002,  adoption  and  modification  orders  were  issued  in  

relation to Uttar Pradesh Industries Service Rules, 1993 and Uttar Pradesh  

Industries (Senior Group ‘A’) Service Rules, 1991.

8.4 On the recommendations of the Commission, Shri R.K. Khare was  

appointed as Survey Officer in the pay scale of  Rs.450-950 with effect  

from 27.12.1974.   He was appointed  as Assistant  Development  Officer  

(Small Engineering Industries) with effect from 3.11.1976 in the pay scale  

of  Rs.550-1200  on  ad  hoc  basis.   Subsequently,  the  State  Government  

issued G.O. dated 11.10.1977 and conveyed sanction of the Governor to  

the  appointment  of  Shri  R.K.  Khare  as  Assistant  Development  Officer  

(SEI).  On 22.3.1980, he was appointed as ad hoc Class-I officer in the pay  

scale of Rs.800-1450.  The ad hoc appointment of Shri R.K. Khare was  

regularized  with  effect  from  16.11.1989  under  the  Uttar  Pradesh  

Regularization  of  Ad  hoc  Appointments  (on  Posts  within  purview  of  

Public Service Commission) Rules, 1988.

8.5 By  an  order  dated  22.1.2001,  the  Government  of  Uttar  Pradesh  

promoted 19  Class-II  officers,  who were  senior  to  Shri  R.K.  Khare  to  

Class-I posts on notional basis with effect from 16.11.1989.

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9. S/Shri J.L. Gupta and Subodh Markandeya, learned senior counsel  

appearing for appellant Nos. 1 and 2 and Ms. Rachana Srivastava, learned  

counsel appearing for the State of Uttarakhand argued that the impugned  

order is liable to be set aside because while granting relief to respondent  

No.1, the High Court completely ignored that he was guilty of laches and  

that the persons who were going to be adversely affected by retrospective  

promotion  of  respondent  No.1  had  not  been  impleaded  as  party  

respondents.   Learned counsel further argued that the Uttarakhand High  

Court did not have the jurisdiction to direct promotion of respondent No.1  

to Class-I post with effect from a date prior to formation of the new State  

and even the Allahabad High Court could not have issued a mandamus for  

promotion of respondent No.1 de hors his service record.  Learned counsel  

emphasized that in exercise of power under Article 226 of the Constitution,  

the High Court cannot, except in exceptional circumstances, issue direction  

for promotion of an officer/official and the case of respondent No.1 did not  

fall  in that category.  Ms. Srivastava pointed out that even though Shri  

R.K. Khare was junior to respondent No.1 in the seniority list of Class-II  

officers, his promotion to Class-I post with effect from 16.11.1989 did not  

give a cause to respondent No.1 to seek intervention of the Uttarakhand  

High Court for promotion with effect from that date because till then, he  

continued to be an employee of the State of Uttar Pradesh.

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10. Shri  Pramod  Swarup,  learned  senior  counsel  appearing  for  

respondent  No.1  defended  the  directions  given  by  the  High  Court  and  

argued that once the order of punishment was withdrawn and the remarks  

recorded in  the Annual  Confidential  Report  of  respondent  No.1 casting  

adverse reflection on his integrity were expunged, he became entitled to be  

considered for promotion to Class-I post with effect from a date persons  

junior  to  him,  namely,  Shri  R.K.  Khare  and  others  were  promoted.  

Learned senior  counsel  emphasized that after  having issued order dated  

22.1.2001 for promotion of Shri S.C. Chandola to Class-I post with effect  

from  16.11.1989,  it  is  not  open  to  the  Government  of  Uttarakhand  to  

contend that the High Court did not have the jurisdiction to issue direction  

for retrospective promotion of respondent No.1.

11. We have considered the respective submissions.  It is not in dispute  

that at the time of promotion of Class-II officers including Shri R.K. Khare  

to Class-I posts with effect from 16.11.1989 by the Government of Uttar  

Pradesh, the case of respondent No.1 was not considered because of the  

adverse  remarks  recorded  in  his  Annual  Confidential  Report  and  the  

punishment  imposed  vide  order  dated  23.1.1999.   Once  the  order  of  

punishment  was  set  aside,  respondent  No.1  became  entitled  to  be  

considered  for  promotion  to  Class-I  post  with  effect  from 16.11.1989.  

That exercise could have been undertaken only by the Government of Uttar  

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Pradesh  and  not  by  the  State  of  Uttaranchal  (now  the  State  of  

Uttarakhand), which was formed on 9.11.2000.  Therefore, the High Court  

of Uttarakhand, which too came into existence with effect from 9.11.2000  

did  not  have  the  jurisdiction  to  entertain  the  writ  petition  filed  by  

respondent  No.1  for  issue  of  a  mandamus  to  the  State  Government  to  

promote him to Class-I post with effect from 16.11.1989, more so because  

the issues raised in the writ petition involved examination of the legality of  

the decision taken by the Government of Uttar Pradesh to promote Shri  

R.K.  Khare  with  effect  from 16.11.1989  and  other  officers,  who  were  

promoted to  Class-I  post  vide order  dated  22.1.2001 with  retrospective  

effect.  It appears to us that the counsel, who appeared on behalf of the  

State  of  Uttarakhand  and  the  Director  of  Industries  did  not  draw  the  

attention of the High Court that it was not competent to issue direction for  

promotion of respondent No.1 with effect from a date prior to formation of  

the new State, and that too, without hearing the State of Uttar Pradesh and  

this is  the reason why the High Court  did not examine the issue of  its  

jurisdiction to entertain the prayer made by respondent No.1.

12. In  view  of  the  above,  we  hold  that  the  writ  petition  filed  by  

respondent  No.1  in  2008  in  the  Uttarakhand  High  Court  claiming  

retrospective promotion to Class-I post with effect from 16.11.1989 was  

misconceived and the High Court committed jurisdictional error by issuing  

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direction for  his  promotion to the post  of  General  Manager  with effect  

from 16.11.1989 and for consideration of his case for promotion to the  

higher posts with effect from the date of promotion of his so called juniors.

13. In the result, the appeals are allowed, the impugned order is set aside  

and the writ petition filed by respondent No.1 is dismissed.  

14. However,  it  is  made clear  that  this  Court  has  not  expressed  any  

opinion  on  the  merits  of  the  entitlement  of  respondent  No.1  to  claim  

promotion to Class-I post with retrospective effect and, if so advised, he  

may avail appropriate remedy by filing a petition in the Allahabad High  

Court.  It is also made clear that we have not expressed any opinion on the  

legality or otherwise of order dated 17.1.2005 issued by the Government of  

Uttarakhand  withdrawing  the  order  of  punishment  passed  against  

respondent  No.1  and  the  writ  petition,  if  any,  pending  before  the  

Uttarakhand High Court against that order shall be decided without being  

influenced by the proceedings of these appeals.  

…...……..….………………….…J.  [G.S. Singhvi]

…………..….………………….…J.   [Sudhansu Jyoti Mukhopadhaya] New Delhi, May 28, 2012.

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