PREMLATA JOSHI versus CHIEF SECRETARY STATE OF UTTARAKHAND & ORS.

Citation: [2013] 12 S.C.R. 324 · Decided: 12-11-2013 · Supreme Court of India · Bench: K.S. RADHAKRISHNAN · Disposal: Dismissed

Judgment (excerpt)

A 
B 
c 
[2013) 12 S.C.R. 324 
PREMLATA JOSHI 
v. 
CHIEF SECRETARY STATE OF UTTARAKHAND & ORS. 
(Civil Appeal No.10236 of 2013 etc.) 
NOVEMBER 12, 2013 
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.) 
Service Law: 
Appointment by promotion - Appointment to post of 
Director, Medical Health - Held: In the instant case, promotion 
is on the basis of merit alone, where seniority should play the 
role only if two candidates are of equal merit and not otherwise 
- Government Order laid down the criteria of judging the merit 
0 
and specified the categories as 'excellent', 'good' and 
'unsuitable' - DPC committed the mistake by grading the 
officers in 'very good', 'good' and 'unfit' categories --By 
eliminating 'excellent' category and replacing it with 'very 
good' category, private respondent was severely prejudiced 
E 
Since DPC did not follow the procedure as laid down even in 
the OM, the promotion of appellant was rightly set aside by 
High Court - Uttar Pradesh Medical Health (Group A) Service 
Rules, 1990 - r.B -- Uttarakhand Government Servant (Criteria 
for Recruitment by Promotion) Rules, 2004- rr. 4 and B -
F 
Government Order dated 16.4.2003 - Para 2(a) - Costs. 
Recovery of excess amount - Held: Since appellant has 
already retired and promotion given to her is because of the 
wrong exercise of the Department in not applying Rules/OM 
correctly and it was not because of any misrepresentation or 
G 
suppression by the appellant, no recovery of the excess 
amount paid to her is called for. 
CONSTITUTION OF /NOIA, 1950: 
Art. 226 - Writ jurisdiction - Held: High Court rightly 
H 
324 
PREMLATA JOSHI v. CHIEF SECR. STATE OF 
325 
UTTARAKHAND & ORS. 
concluded that the criterion of merit was violated by giving 
A 
promotion to the appellant on such a comparative 
assessment where the respondent was rated more meritorious 
than the appellant - It cannot, therefore, be said that High 
Court assumed the role of DPC. 
B 
ADMINISTRATIVE LAW: 
Subordinate legislation - Government of Uttarakhand 
O.M. dated 16.4.2003 - Providing classification as 'excellent; 
'good' and 'unsuitable' - However, ACRs also providing Grade 
'very good' which is not the category in O.M. - Held: It is for C 
the Government to consider amendment in the procedure of 
selection on the basis of merits - Government Order dated 
16.4.2003 - Para 2(a). 
The appellant's appointment on the post of Director, 
Medical Health was challenged by the private respondent D 
on the ground that his ACRs were much superior to that 
of the appellant inasmuch as in the last 10 years under 
consideration he had obtained either 'excellent' or 'very 
good' rating; whereas in the case of appellant ACRs of 
only 9 years were considered out of which in one year 
E 
she obtained 'good' and in the remaining 8 years 
'excellent' or 'very good'. The Public Service Tribunal 
rejected the respondent's claim petition. However, the 
High Court allowed his writ petition. Since on the date of 
the judgment, both the appellant as well as private 
F 
respondent had retired, the High Court directed to treat 
the private respondent as having been promoted to the 
post of Director, Medical Health on and from 14.7.2008 
and he be paid the arrears of salary, accordingly. 
In the petition for special leave filed by the appellant, 
G 
limited notice was issued as regards recovery of amount 
already paid to her on account of promotion to the post 
of Director, Medical Health. 
Dismissing the appeals, the Court 
326 
SUPREME COURT REPORTS 
[2013] 12 S.C.R. 
A 
HELD: 1.1 Rule 8 of the U.P. Medical Health (Group 
A) Service Rules, 1990, as amended in 1998, states that 
merit is the sole consideration for promotion to the post 
of Director. Further, as per r.8 of the Uttarakhand 
Government Servant (Criteria for Recruitment by 
B Promotion) Rules, 2004, the promotion is on the basis of 
merit to the post in question. The relevant Rules are 
statutory in nature as they are made in exercise of power 
vested in proviso to Article 309 of the Constitution. 
However, the Rules do not provide the procedure for 
c adjudging the merit of various candidates. In the instant 
case, the promotion is on the basis of merit alone, where 
the seniority should play the role only if two candidates 
are of equal merit and not otherwise. [para 4,5,13 and 16] 
[329-G-H; 330-A; 331-F; 335-C-0; 337-F] 
D 
1.2 OM dated 16.4.2003 provides for the procedure for 
evaluating the comparative merit of the candidates. As per 
sub-

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