2025:UHC:5906-DB HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition Service Bench No. 249 of 2020 09 July, 2025 State Of Uttarakhand & another … Petitioners Versus Ravindra Kumar … Respondent ---------------------------------------------------------------------- Presence:- Mr. G.S. Negi, learned Additional C.S.C. for the petitioners. Ms. Prabha Naithani, learned counsel for the respondent. ---------------------------------------------------------------------- (Judgment) Hon’ble Manoj Kumar Tiwari, J. Hon’ble Subhash Upadhyay, J. (Per: Hon’ble Manoj Kumar Tiwari, J.) 1. Respondent approached Uttarakhand Public Services Tribunal, Dehradun by filing Claim Petition No. 73/DB/2019. In the said claim petition, he sought the following reliefs:- (i) The impugned order Annexure-A1 dated 18.2.2019 may kindly be declared void, illegal, against fundamental, constitutional, civil right of the petitioner, rules, orders and principles of natural justice and may kindly be quashed and set aside. (ii) The Hon’ble Tribunal may kindly be directed to the Respondents to promote the petitioner to the post of Head Operator w.e.f. 16.7.2013 the date of promotion of his juniors and to pay petitioner salary and other benefits of the promoted post from 16.7.2013 together with interest thereon @ 10% per annum from the date of accrued till the actual date of payment to the petitioner. 2. Learned Tribunal allowed the claim petition and directed the Authorities to grant promotion to respondent notionally, as Head Operator w.e.f. 16.07.2013 and actually from 18.11.2016. Operative portion of the impugned judgment is reproduced 1 2025:UHC:5906-DB below:- “12. Arguments have been advanced by both the sides about whether this censure entry should have been considered, what should have been its effect, etc. After passing departmental Grade-II examination, the petitioner was fit for promotion otherwise. However, the pendency of inquiry and subsequent minor penalty imposed upon him, cannot be considered to be absolutely effect-less in affecting his promotion. This Tribunal observes that the fair thing would be to grant promotion to the petitioner actually from the date of effect of censure entry was over i.e., 18.11.2016 and notionally from the date his juniors were promoted w.e.f. 16.07.2013, without giving him any benefit of additional salary etc. for the intervening period. He shall be entitled for pay fixation on the promoted post w.e.f. 16.07.2013 and subsequently annual increments and this period shall also be counted as qualifying service period, on the promoted post for the next higher promotion. 13. The above decision places the things in their proper perspective, the petitioner’s future promotion prospects are not altered and he suffers adequately for delay in passing the Grade-II examination and the minor penalty of censure entry. 14. Order in terms of Para 12 of the judgment. 15. The claim petition thus stands disposed of. In the circumstances, no order as to costs.” 3. State has challenged the said judgment mainly on the ground that confirmation on the feeder post of Assistant Operator was an essential condition for promotion to the post of Head Operator, and for confirmation, one is required to clear a Grade-II Examination; however, respondent was neither confirmed on the date when promotion exercise was held in July, 2013 and he cleared Grade II Examination only on 14.10.2013, therefore, he was not eligible to be considered for promotion as Head Operator in the promotion exercise held in the month of July, 2013. It is further contended that punishment of censure was imposed upon 2 2025:UHC:5906-DB respondent on 18.11.2013 which attained finality and due to the effect of said punishment, respondent was rendered unsuitable for promotion for a period of three years i.e. upto 17.11.2016. 4. Per contra, Ms. Prabha Naithani, learned counsel appearing for the respondent submits that passing of Grade-II Examination was not necessary for promotion to the post of Head Operator and learned Tribunal was justified in allowing the claim petition as promotion was denied to her client only on the ground that he had not cleared Grade-II Examination. She further submits that punishment of censure was imposed upon the respondent only on 18.11.2013, while the promotion exercise, in which respondent was superseded, was held in the month of July, 2013 and Juniors persons were promoted on 16.07.2013. 5. The mode of recruitment and other conditions of service of Assistant Operator and Head Operator are governed by Statutory Rules known as “Uttar Pradesh Police Radio Subordinate Service Rules, 1982”. The same are enclosed as Annexure-2 to the writ petition. 6. Rule 5 thereof lays down the source of recruitment to different posts and Clause 3 thereof provides that only permanent Assistant Operator would be eligible for promotion to the post of Head Operator. 7. Rule 21 of the said Rules deals with 3 2025:UHC:5906-DB ‘confirmation’ and provides that successful completion of prescribed training is necessary for confirmation of a member of service. 8. Rule 19 of the aforesaid Rules deals with training and provides that a person appointed to the service shall be required to undergo such training as is prescribed. It also refers to training course prescribed in Appendix-A. Entry No. 6 of Appendix-A provides that a person appointed as Assistant Operator will be required to undergo four months Operator Training Course Grade-II and upon completion of training he will have to clear Operator Examination Grade-II. 9. A conjoint reading of the aforesaid Rules indicates that passing of Operator Examination Grade-II is necessary for confirmation of a person appointed as Assistant Operator. Rule 5(3) unequivocally provides that only a permanent Assistant Operator would be eligible for promotion as Head Operator. Since respondent was not confirmed on the post of Assistant Operator, as on 09.07.2013, when DPC was held, and even on 16.07.2013, when promotion order was issued, therefore, the grievance raised by respondent, regarding his supersession in the matter of promotion, was without any basis. 10. The next promotion exercise was initiated in the month of December, 2013 and meeting of the Departmental Promotion Committee was held on 24.12.2013; although by that time, respondent had 4 2025:UHC:5906-DB cleared Operator Grade-II Examination and his service was also made permanent, however, during the interregnum, punishment of censure was imposed upon him on 18.11.2013. Consequent to the punishment of censure, respondent was rendered unsuitable for promotion for a period of three years. 11. It is not in dispute that respondent was thereafter considered for promotion as Head Operator in the DPC held on 10.03.2017 and order of promotion was issued in his favour on 19.03.2017; thus, on the date, he filed claim petition, he was promoted as Head Operator. After he was promoted as Head Operator, respondent made a representation to the Competent Authority staking claim for notional promotion from the date his juniors were promoted in the promotion exercise held in July, 2013. His representation was rejected and he then approached the Tribunal challenging the rejection order and sought other reliefs also. 12. Perusal of the impugned judgment, rendered by learned Tribunal, reveals that the order dated 18.02.2019 passed by Superintendent of Police (Wireless Communication), wherein reasons, for not accepting respondent’s claim for notional promotion were given, was not considered and discussed; although respondent had challenged the said rejection order in his claim petition, however, the rejection order was not set aside. 13. Learned State Counsel submits that 5 2025:UHC:5906-DB learned Tribunal went astray in holding that respondent was entitled to notional promotion from 16.07.2013. He submits that the reasoning given by learned Tribunal, for allowing the claim of respondent, is incoherent. He invited our attention to the discussion made in para 10 of the impugned judgment, which is reproduced below:- “10….. The first question that arises is, whether after passing the examination, if there was nothing else against him, could he have been promoted from the earlier date i.e., 16.07.2013, the date from which his juniors were promoted. While the relevant Rules do not prescribe the passing of this examination as a mandatory condition for granting promotion, the requirement of passing examination and subsequent confirmation of the person on the lower post cannot be ignored by any DPC. However, a view can be taken that after the examination has been passed, the promotion can be given notionally from the previous date when the juniors have been promoted and actually after the date the examination has been passed.” 14. Learned State Counsel further submits that there was valid reason for not promoting the respondent in the exercise held in July, 2013, as he was not eligible for promotion as per Rules at the relevant point of time. He submits that in next promotion exercise held in December, 2013, he was eligible for promotion, however, on account of punishment of censure, imposed in the meantime, he became unfit for promotion as the criterion for promotion is seniority, subject to rejection of unfit. 15. We find substance in the submission made by learned State Counsel. A person, who is not eligible for promotion as per Rules, cannot be considered for promotion, even though his juniors are considered and promoted in the said promotion 6 2025:UHC:5906-DB exercise. ‘Eligibility’ and ‘Seniority’ are two different concepts and a person, even though senior, can be passed over in the matter of promotion, if he is not eligible as per Rules. This material aspect appears to have been overlooked by learned Tribunal. 16. For the aforesaid reasons, we are satisfied that this is a case in which interference would be warranted. Accordingly, the writ petition is allowed. Impugned judgment dated 06.05.2020 passed by learned Tribunal is set aside. (Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.) 09.07.2025 Aswal 7 NITI RAJ SINGH ASWAL Digitally signed by NITI RAJ SINGH ASWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802 a3a08b08d1369512ea30f3, postalCode=263001, st=UTTARAKHAND, serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C2 2DACF4F4610C1FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL Date: 2025.07.09 07:39:10 -07'00'