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2006 DIGILAW 961 (ALL)

UDAI KUMAR v. STATE OF UTTAR PRADESH

2006-04-06

PRADEEP KANT, RAJIV SHARMA

body2006
( 1 ) HEARD the learned counsel for the petitioner Sri Kapil Dev and Sri harshvardhan, learned counsel for the State. The petitioner, an appointee of Group b Service in the Agriculture department, feeling aggrieved by his non promotion to the Group a service on the post of Deputy Director, approached this court for consideration of his promotion on the aforesaid post. Initially the petitioner had filed a writ petition (Writ Petition No. 578 (SB) of 1997) but the same was dismissed on the ground of availability of alternative remedy before the U. P. Public Services Tribunal. The claim petition was, however, dismissed on 12/12/2000. Challenging the aforesaid order passed by the tribunal, Writ Petition No. 48 (SB) of 2001 has been filed. There is already an order of this court that this petition be listed alongwith the aforesaid writ petition. ( 2 ) IN short, the petitioners case is that in the DPC held in the month of March/april, 1997 for making promotion to the post of Deputy Director, petitioners candidature was also considered but since there was an adverse entry for the year 1995-96, he was not promoted. The Tribunal has rejected the claim petition against the claim of promotion of the petitioner in the aforesaid DPC of 1997 on the ground that since there was an adverse entry in the character roll of the petitioner and, therefore, he was rightly rejected or found unsuitable. We would consider the effect of this entry after a short while in this judgment. ( 3 ) THE aforesaid adverse entry for the year 1995-96 was communicated to the petitioner on 14/11/1996, which was said to have been recorded on 23/10/1995. The petitioner had preferred a representation on 16/12/1996 and thereafter a reminder on 18/6/1997. The representation was considered and the adverse entry was expunged on 28/11/1998. The order expunging the entry has been brought on record. It is thus clear that on the date of consideration of promotion of the petitioner in 1997, the representation against the adverse entry was pending and in view of the provisions of Rule 5 of the 1995 Rules, the said entry could not have been taken into consideration for considering his promotion. ( 4 ) ON 1/7/1996 a decision was taken by the State Government to initiate the disciplinary proceedings against the petitioner and a charge sheet was served upon him on 11/10/1997. ( 4 ) ON 1/7/1996 a decision was taken by the State Government to initiate the disciplinary proceedings against the petitioner and a charge sheet was served upon him on 11/10/1997. The petitioner submitted a reply on 21/11/1997. In the enquiry the petitioner was not found guilty of any charge and he was exonerated, vide order dated 13/11/1998. The petitioner, on being exonerated in the aforesaid enquiry, again moved a representation on 7/12/1998 for promoting him to the post of Deputy Director from the date his juniors were promoted but of no avail. A reminder was also sent but it did not yield any result. The State Government, however, did not pass any orders on the representation of the petitioner and instead of considering his case for promotion despite the adverse entry having been expunged, which, though could not have been taken into consideration in accordance with the Rules of 1995 and thereafter on the exoneration of the petitioner in the enquiry set up by the State Government, the State government again took a decision on 12/6/2002 to initiate another enquiry. In this enquiry, the charge sheet was issued on 21/6/2002 to which charge sheet also the petitioner submitted reply on 9/10/2002. The petitioner again was exonerated in this enquiry also, vide order-dated 16/3/2004. During the aforesaid period, sometimes in March/april,03 a DPC was again convened and he was given to understand that the result of the petitioners consideration for promotion has been kept in sealed cover on account of pendency of the enquiry initiated by the opposite parties in the year 2002 i. e. in respect of the charge sheet dated 21. 6. 02. This enquiry also concluded in favour of the petitioner and he was exonerated on 16. 3. 04. The State instead of opening the seal cover on account of pendency of the aforesaid disciplinary proceedings, served another charge sheet upon the petitioner on 8. 3. 04. The petitioner submitted reply to this charge sheet in which enquiry he has again been exonerated, vide order dated 26. 12. 05. After conclusion of the aforesaid enquiry, the petitioner at last has been given promotion on the post of Deputy Director but not from the date when his juniors were promoted in the year 1997 but with immediate effect i. e. 2/1/2006. 12. 05. After conclusion of the aforesaid enquiry, the petitioner at last has been given promotion on the post of Deputy Director but not from the date when his juniors were promoted in the year 1997 but with immediate effect i. e. 2/1/2006. The subsisting grievance of the petitioner, therefore, is that he should be given promotion from the back date, namely, from June,1997. ( 5 ) A counter affidavit has been filed by the State, which does not dispute or deny the aforesaid facts but only says that since the petitioner was not found fit for promotion in the year 1997 and when his sealed cover was opened, he was declared unfit. Relying upon the aforesaid rejection of the petitioner for promotion in the DPC held on 27. 5. 1997, the petitioner had been denied promotion with effect from the date when his juniors were promoted i. e. 11. 6. 1997. The initiation of successive departmental proceedings and continuous exoneration of the petitioner in all such proceedings is not in dispute. The rejection of the petitioners candidature for promotion in the DPC held on 28. 5. 1997 in pursuance of which the persons junior to the petitioner, whose names have also been given as gauri Shanker and Jagat Narain, appears to be per se illegal and without any authority and against the rules. The petitioner was awarded an adverse entry in the year 1995-96 against which he made a representation within time on the same being communicated to him on 16. 12. 1996. The DPC took place on 28. 5. 1997. On the date of the DPC, petitioners representation was pending and was not disposed of, which was later on considered and allowed on 23. 11. 1998 expunging the aforesaid entry. The rules of 1995 had come into force and in view of Rule 5, such an adverse entry against which the representation was pending undisposed, could not have been taken into consideration for the purposes of promotion. The averment of the State that the petitioners candidature was kept in seal cover and when the representation aforesaid was allowed, it was opened, which disclosed that he was kept in the category of unsuitable, therefore, the petitioner was not promoted, has to be decided in the light of the criteria which was applicable in the case of the promotion of Deputy director. The parties counsel including the State admit that the criteria for promotion to the post of Deputy Director was seniority subject to rejection of unfit. There is no other adverse entry or adverse material nor any such material has been brought on record to indicate that but for the aforesaid adverse entry of the year 1995-96, any other material or adverse entry was existing against the petitioner so as to declare him unfit or unsuitable for promotion. But still the adverse entry for the year 1995-96 was not to be seen or followed for the reasons aforesaid and, therefore, the averment made in the counter affidavit that the petitioner was found unfit cannot be sustained, the criteria being seniority subject to rejection of unfit. ( 6 ) ONCE the aforesaid entry was to be ignored, while considering the promotion, placing reliance upon the said entry and declaring the petitioner as unfit was against the rules with no legal basis. This act of the State made the persons junior to the petitioner to steal a march over him despite the petitioners prior right of holding the higher post. ( 7 ) FOR the reasons best known to the respondents instead of promoting the petitioner with effect from 11. 6. 1997 on his various representations and reminders being made, successively the departmental proceedings were initiated against him by serving different charge sheets and to be precise, four in number and against every charge sheet, the petitioner was exonerated and no charge could stand proved. But because of the aforesaid action of issuing charge sheet casually, may be for ulterior motive or reasons or otherwise, the petitioner stood deprived of his claim of promotion on the higher post, though persons junior to him acquired higher positions and they were promoted to further higher posts. It was only after the last enquiry of the year 2004 in which the petitioner was again exonerated, that the State Government though it proper to promote the petitioner on the post of Deputy Director but that too with immediate effect. ( 8 ) THE action of the respondents, earlier in not promoting the petitioner initially in the DPC held on 28. 5. 1997 on the basis of an adverse entry, which, as per statutory rules, could not have formed the basis for supercession or for rejection from promotion, was grossly discriminatory, arbitrary and malafide. ( 8 ) THE action of the respondents, earlier in not promoting the petitioner initially in the DPC held on 28. 5. 1997 on the basis of an adverse entry, which, as per statutory rules, could not have formed the basis for supercession or for rejection from promotion, was grossly discriminatory, arbitrary and malafide. It also reflects that the 1995 Rules were either not in the knowledge of the authorities or they were deliberately ignored. On the strength of the aforesaid rejection, the petitioner could not be denied benefit of promotion from the date when the junior persons have been promoted. The subsequent enquiries also reveal that they were initiated just for the purpose of denying promotion, as in all enquiries the petitioner stood exonerated. In any case, even if we presume that the enquiries were initiated bona fide, there was no occasion for the State Government to deny promotion with effect from the back date, when in all enquiries the petitioner stood exonerated. ( 9 ) FOR the reasons stated above, we hold that non-promotion of the petitioner with effect from 11. 6. 1997 when persons junior to him were promoted is denial of right of promotion and the action is violative of article 14 and 16 of the Constitution. The petitioner is entitled for promotion on the post of Deputy Director from the said date and consideration for promotion to the next higher post from the date when persons junior to him have been considered and promoted with all consequential benefits. ( 10 ) THE corollary of the events and the action of the State persuade us to hold that the petitioner has been subjected to absolutely arbitrary and malafide action depriving of his right of promotion from the back date and he has been dragged into litigation right from the year 1997. As such, we impose a costs of Rs. 25,000. 00 upon the State to be paid to the petitioner as a token towards the agony that he has suffered as compensation. The costs shall be paid within one month by the State. It will be open to the State to recover the said amount from the officers, who may be found responsible for the aforesaid actions. 25,000. 00 upon the State to be paid to the petitioner as a token towards the agony that he has suffered as compensation. The costs shall be paid within one month by the State. It will be open to the State to recover the said amount from the officers, who may be found responsible for the aforesaid actions. ( 11 ) THE Tribunals order dated 12/12/2000, which is the subject matter of challenge in Writ Petition No. 48 (SB) of 2001 is also liable to be set aside on the ground aforesaid that the Tribunal erred in relying upon the adverse entry for the year 1995-96 and holding that since there is an adverse entry against the petitioner, his case for promotion could not have been considered. The Tribunals order, therefore, suffers from the same illegality and is liable to be quashed, which is hereby quashed. Both the writ petitions are allowed. .