WPSB/191/2022 of SUBHASH CHANDRA Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL JUSTICE SHRI MANOJ KUMAR TIWARI

AND

JUSTICE SHRI RAMESH CHANDRA KHULBE

WRIT PETITION (S/B) No.191 OF 2022

18TH APRIL, 2022

Between:

Subhash Chandra.

…… Petitioner

State of Uttarakhand and Another …… Respondents

Counsel for the petitioner : Mr. Anil Kumar Joshi, the learned counsel.Counsel for the State : Mr. S.S. Chauhan, learned Deputy Advocate General.Counsel for the State : Mr. S.S. Chauhan, learned Deputy Advocate General.

Upon hearing the learned Counsel, the Court made the following

JUDGMENT :(per Sri Manoj Kumar Tiwari, J.)

Petitioner is permitted to implead Managing Director, Uttarakhand Pay Jal Nigam, 11 Mohini Road, Dehradun, as respondent no. 3, on the oral prayer made by Mr. Anil Kumar Joshi, learned Advocate appearing for the petitioner. He shall supply amended memo of parties, during the course of the day.

2. Mr. S.S. Chauhan, Advocate accepts notice on behalf of newly impleaded respondent.

3. Petitioner was appointed as Junior Engineer in the year 1983 and was promoted to the post of Assistant Engineer, on 07.11.2000. Presently, he is serving as Chief Engineer, Level-II in Uttarakhand Pay Jal Sansadhan Vikas Evam Nirman Nigam (respondent no. 2). He is due to retire on 30.06.2022.

4. According to the petitioner, the post of Managing Director in respondent no. 2 is lying vacant and one officer of Provincial Civil Service is holding charge of the post of Managing Director in violation of statutory provisions. According to him, only qualified engineer can be appointed as Managing Director, since the officer of Provincial Civil Service presently holding charge of Managing Director, is not qualified engineer, therefore, he is ineligible for appointment as Managing Director.

5. By means of this Writ Petition, the petitioner has sought the following relief:-

“i) issue writ, order or direction in the nature of mandamus commanding the respondents to hold the DPC and initiate the promotional exercise to the post of Managing Director and consider the petitioner for promotion within stipulated time.”

6. It is not in dispute that respondent no. 2 is statutory Corporation created by U.P. Water Supply and Sewerage Act, 1975. Section 4(2) (a) dealing with Managing Director reads as under:-

“4(2)(a). Managing Director to be appointed by the State Government, who shall be full time qualified engineer having administrative experience and also the experience of Water Supply and Sewerage works.”

Learned counsel for the petitioner thus submits that

the present arrangement, giving officiating appointment to P.C.S. officer, is dehors Section 4(2) (a) of the aforesaid Act.

8. Per contra, learned counsel appearing for the State submits that as per applicable Rules, Chief Engineer, Level-II with 25 years of continuous service as Assistant Engineer, Executive Engineer, Superintending Engineer, Chief Engineer, Level-II on the first day of selection year, alone are eligible to be considered for appointment to the post of Managing Director. He further points out that at present there is no officer serving as Chief Engineer, Level-II who fulfills the said condition, therefore, State Government was constrained to give charge of the post of Managing Director to P.C.S. officer, after death of regular incumbent on the post of Managing Director in the year 2021. He further submits that regular appointment on the post of Managing Director would

be made as soon as eligible officers become available for appointment.

9. Learned counsel for the petitioner has drawn attention of this Court to document contained as Annexure-4 to writ petition, which is notification issued by Personnel Department of the State on 09.11.2021. By the said notification, statutory Rules framed in 2010 known as ‘Uttarakhand Government Servant Relaxation in Qualifying Service for Promotion Rules, 2010’ were amended and in Rule 4 of the original Rules, proviso has been added that benefit of the Relaxation Rules may be given for the current selection year, which will come to close on 30.06.2022. He, therefore, submits that in the peculiar facts of the case, all the officers serving as Chief Engineer, Level-II in respondent no. 2 can be granted relaxation in qualifying service, by invoking the said Rule and thus the requirement of appointing unqualified person as Managing Director would be obviated.

10. Learned counsel for the petitioner has drawn our attention to communication issued by the State Government to Managing Director on 16.11.2021, which is on record as Annexure-5 to the writ petition. Perusal of the said communication reveals that State Government had asked Managing Director to submit proposal for grant of relaxation in qualifying service to eligible officers serving in Uttarakhand

Pay Jal Nigam. Learned counsel for the petitioner further submits that Managing Director has not submitted any proposal pursuant to the said communication. 11. Since there are statutory Rules in vogue, which permit relaxation in qualifying service to eligible officers, who are otherwise eligible for promotion and State Government had invited names of eligible officers, by issuing communication to the Managing Director, but reportedly, proposal for relaxation in qualifying service has not been submitted to the State Government. Such state of affairs cannot be permitted to continue. Therefore, having regard to the facts and circumstances of the case, writ petition is disposed of with the following directions:-

I. Managing Director (respondent no. 3) shall submit proposal in terms of letter dated 16.11.2021 issued by State Government, within ten days from date of production of certified copy of this order.

Competent Authority in the State Government

shall consider the officers, who names are forwarded by Managing Director, for relaxation in qualifying service, in terms of applicable Rules and pass appropriate order, within ten days from the date of receipt of proposal from respondent no. 3.

III. Relaxation in qualifying service, if granted to

adequate number of officers serving in the feeding cadre, then Secretary, Drinking Water Department shall convene DPC and declare its result, within two weeks from the date of grant of relaxation in qualifying service.

12. All pending applications, stand disposed of.

13. Let certified copy of this order be supplied to learned counsel for the parties, on or before 23.04.2022.

___________________

MANOJ KUMAR TIWARI, J.

______________

RAMESH CHANDRA KHULBE, J.

Dt: 18[TH] APRIL, 2022 BS/SS