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Uttarakhand High Court · body

2010 DIGILAW 183 (UTT)

Umakant Joshi v. State of Uttarakhand and another

2010-04-06

JAGDISH SINGH KHEHAR, SUDHANSHU DHULIA

body2010
J.S. Khehar, C.J, (Oral).- The petitioner was inducted into the service of Directorate of Industries as a Manager (Marketing) on 23.4.1984. During the years 1996 and 1997, four chargesheets were issued against the petitioner. The aforesaid chargesheets dated 23.7.1996, 19.12.1996, 24.1.1997 and 14.3.1997 resulted in passing of a common order of punishment dated 23.1.1999. By the instant order dated 23.1.1999, the petitioner was down-graded to the minimum of the pay-scale of the post held by him. Additionally, an adverse entry of doubtful integrity was recorded in his Annual Confidential Report for the years 1995-96. 2. Dissatisfied with the punishment order dated 23.1.1999, the petitioner addressed a representation dated 14.1.2000 while he was still in the employment of the composite State of Uttar Pradesh. After the reorganisation of the composite State of Uttar Pradesh, he addressed a second representation dated 23.12.2000. Through the aforesaid representations, he assailed the order dated 23.1.1999. When the respondents failed to take any action on the aforesaid representations, the petitioner approached the High Court of Judicature at Allahabad by filing Writ Petition (S/B) No. 1009 of 2001. The aforesaid writ petition was, however, disposed of by an order dated 18.4.2004 relegating the petitioner to his remedy before the Public Services Tribunal. It is therefore, that the claim raised by the petitioner so as to assail the order dated 23.1.1999 was examined by the Public Services Tribunal, Uttarakhand. Herein the claim application of the petitioner was numbered as 88 (T) of 2004. 3. While the challenge raised by the petitioner to the order dated 23.1.1999 was pending before the Public Services Tribunal, Uttarakhand, the State Government passed three orders. By the first order dated 17.1.2005, the punishment inflicted upon the petitioner (vide order dated 23.1.1999) down­grading him to the minimum of the pay-scale of the post held by him was set aside. By the second order dated 11.8.2005, the adverse entries recorded against his name for the period 1995-96 (in the impugned order dated 23.1.1999) was set aside. It is, therefore, apparent that the entire effect of the order dated 23.1.1999 came to be annulled by the aforesaid orders dated 17.1.2005 and 11.8.2005. 4. Since the order dated 23.1.1999 had completely been wiped out, yet another order dated 11.8.2005 was passed by the respondents allowing to the petitioner all consequential benefits. The petitioner acknowledges that most of the consequential benefits have already been released to him. 4. Since the order dated 23.1.1999 had completely been wiped out, yet another order dated 11.8.2005 was passed by the respondents allowing to the petitioner all consequential benefits. The petitioner acknowledges that most of the consequential benefits have already been released to him. Only one benefit, namely, promotion to the post of General Manager in Class -1 service, which was accorded to one of the persons junior to the petitioner in the cadre of Manager (Marketing) with effect from 16.11.1989 had not been granted to him. Since the respondents did not consider the claim of the petitioner for promotion to the post of General Manager with effect from 16.11.1989, the petitioner approached this Court by filing the present writ petition. 5. Insofar as the present writ petition is concerned, the only issue for consideration is whether the petitioner is entitled to promotion with effect from the date his junior Sri R.K. Khare was promoted as General Manager (on 16.11.1989). 6. There could be various reasons for not considering the claim of the petitioner for promotion to the post of General Manager with effect from 16.11.1989, as for instance, the aforesaid promotion was granted to his junior Sri R.K. Khare on 16.11.1989, at which juncture there was no adverse material on the record of the petitioner, and yet, the petitioner did not seek promotion either by filing any representation or by seeking recourse to a judicial remedy, inspite of the superiority of the petitioner over him in terms of seniority. Learned Counsel for the respondents acknowledges that promotion to the post of General Manager is effected on the basis of the principle of seniority subject to fitness. The adverse entry for the period 1995-96 as also the punishment order 23.1.1999, could not have affected the right of the petitioner for promotion to the post of General Manager when his junior Sri R.K. Khare was considered. A second objection so as to deny the claim of the petitioner for promotion to the post of General Manager with effect from the date his junior Sri R.K. Khare was promoted, could have been on account of delay and latches. A second objection so as to deny the claim of the petitioner for promotion to the post of General Manager with effect from the date his junior Sri R.K. Khare was promoted, could have been on account of delay and latches. We are, however, of the view that none of these objections can be taken into consideration so as to deny promotion to the petitioner to the post of General Manager with effect from the date his junior Sri R.K. Khare was promoted as such (with effect from 16.11.1989). This conclusion of ours is based on the fact that the respondents unilaterally considered the claims of a large number of seniors, who had been ignored when the aforesaid Sri R.K. Khare came to be promoted as General Manager. Having done so vide order dated 22.1.2001, as many as nineteen persons senior to Sri R.K. Khare came to be promoted to the post of General Manager with effect from the date Sri R.K. Khare had been promoted as such i.e. with effect from 16.11.1989. Out of the aforesaid nineteen persons, fourteen belong to the same selection process, in which the petitioner nad participated, leading to his appointment as Manager (Marketing). Their experience and service for all intents and purposes was equivalent to that of the petitioner. If they could be granted promotion to the post of General Manager with effect from the date their junior Sri R.K. Khare had been promoted, there could be no reason whatsoever to deny the same benefit to the petitioner, who is similarly situated as them, inasmuch as, the petitioner was also undisputedly senior to the aforesaid Sri R.K. Khare. Insofar as the instant aspect of the matter is concerned, reference may also be made to one Sri Ram Naresh Tripathi, who was also inducted into the service as Manager (Marketing) in the Directorate of Industries in the same batch and from the same selection process i.e., in which the petitioner was appointed. He, too, was denied promotion to the post of General Manager. Claiming discrimination, he had filed Civil Misc. Writ Petition No. 39104 of 2005 in the High Court of Judicature at Allahabad. The aforesaid writ petition came to be allowed by a Division Bench of the aforesaid High Court on 27.10.2006. He, too, was denied promotion to the post of General Manager. Claiming discrimination, he had filed Civil Misc. Writ Petition No. 39104 of 2005 in the High Court of Judicature at Allahabad. The aforesaid writ petition came to be allowed by a Division Bench of the aforesaid High Court on 27.10.2006. The aforesaid writ petition filed by Sri Ram Naresh Tripathi was also allowed merely on account of the fact that the claim of the aforesaid Ram Naresh Tripathi had not been considered when his junior Sri R.K. Khare had been promoted as General Manager with effect from 16.11.1989. The case of the petitioner is not distinguishable in any manner whatsoever from the fourteen (out of nineteen persons), who were promoted by the respondents unilaterally by an order dated 22.1.2001, i.e. on account of the fact that their claims were not considered when their junior Sri R.K. Khare was promoted as General Manager with effect from 16.11.1989. A judicial order was passed to the same effect in the case of Ram Naresh Tripathi by a Division bench of the Allahabad High Court on 27.10.2006. 7. In the facts and circumstances noticed hereinabove, we are satisfied that the petitioner also deserves to be promoted to the post of General Manager with effect from the date Sri R.K. Khare had been promoted as such, as his record of service was totally unblemished, and the rule of promotion prescribed consideration on the basis of seniority subject to rejection of those who are unfit. 8. Since the petitioner has claimed notional promotion to the post of General Manager with effect from 16.11.1989, we are satisfied that the aforesaid claim of the petitioner deserves to be granted. Ordered accordingly. During the course of hearing, learned Counsel for the petitioner, on instructions of the petitioner (who was present in the Court in person) has stated, that at the present juncture, the petitioner is not pressing for any monetary benefits. In the aforesaid view of the matter, other than monetary benefits, the claim of the petitioner shall now be considered for all consequential promotions with effect from the date, persons junior to the petitioner were promoted to the higher post(s). This exercise shall be carried out and completed by the respondents herein within three months from the date of the receipt of a certified copy of this order. This exercise shall be carried out and completed by the respondents herein within three months from the date of the receipt of a certified copy of this order. The petitioner shall be entitled to monetary benefits accruing to him with effect from the expiry of the aforesaid period of three months. 9. The instant writ petition is disposed of in the aforesaid terms. Decided accordingly.