MOHD HUSSAIN Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) THE petitioner before this Court is an employee of Uttarakhand Horticulture Department. He is working on the post of Gardener "Maali". As per the 1993 Rules, which are applicable in his case, promotion from the post of Maali to the post of Supervisor have to be done in terms of the seniority subject to the rejection of unfit. However, the State Government has framed Rules on 13.11.2009 known as Uttarakhand Horticulture and Food Processing Subordinate (Group -C) Service Rules, 2009 (hereinafter referred to "Rules of 2009"). As per the Rules of 2009, the criteria was "merit", as only such candidates would be promoted from Class IV post to Class III post in Horticulture Department who pass a written test.

(2.) SOME of the aggrieved Class IV employees had filed the writ petition before this Court being WPSS No. 463 of 2010. This Court though had come to the conclusion that the Rules of 2009 are special Rules of Horticulture Department and the special Rules prevail over the General Rules (there was a reference to the General Rules of 2004 by which promotion from Class IV to Class III post on the basis of seniority). Nevertheless this Court come to the conclusion that under Section 74 of the U.P. Reorganisation Act, if a service condition of the employee of Class IV to be determined prior permission to the Central Government is to be taken. Since this was not done, promotions as per the new Rules cannot be made.

(3.) THE judgment was challenged in appeal by such employees, who had already been selected by way of new selection on the basis of "merit". The Division Bench though agreed with the ratio with a finding of WPSS No. 463 of 2010, yet come to the conclusion that the candidate, who have already selected by due process should not be reverted back, and therefore, the Division Bench of this Court in Special Appeal No. 267 of 2011 passed following order: -