Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 1988 (ALL)

FASIH UDDIN AHMAD v. STATE OF U. P.

2010-07-09

RAKESH SHARMA

body2010
JUDGMENT Hon’ble Rakesh Sharma, J.—Heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Siddharth Khare for the petitioner, learned Standing Counsel for the respondent No. 1 and Shri Neeraj Upadhyay for the respondent Nos. 2 and 3. 2. It emerges from record that the petitioner admittedly a senior most clerk belonging to the ministerial cadre of Judgeship of District Rampur has approached this Court seeking promotion on the post of ‘Sadar Munsarim’. According to him, he is the senior most ministerial employee of judgeship Rampur and as per application of seniority-cum-merit Rule, he became entitled for promotion on the post of ‘Sadar Munsarim’. The District Judge, Rampur vide order dated 29.5.2008 constituted a three members committee headed by Shri R.B. Rai, Additional Distirct Judge, Court No. 5, Rampur for making selection and promotion on the post of ‘Sadar Munsarim’. The service records of the eligible candidates were scrutinised and interview was held. The committee had recommended the name of Ram Gopal, respondent No. 4 for promotion on the post of ‘Sadar Munsarim’. The sailing features of the report of the three members committee has been indicated in para 11 of the writ petition, which is quoted below : “ (1) The petitioner is the senior most eligible staff for consideration for promotion as Sadar Munsarim. (2) Ram Gopal, the respondent No. 4 is junior to the petitioner finding placement immediately below the petitioner in order of seniority. (3) The committee conducted interview and in such interview the performance of the petitioner was found full satisfactory. (4) The committee accorded consideration to the service record of the preceding five years. (5) In the service record of the petitioner in the preceding five years there did not exist any entry for the year 2004-05, while the entries for the years 2002-03, 2003-04, 2005-06 and 2006-07 were found to be satisfactory. (6) The committee recommended superession of the petitioner on the basis of a special adverse entry awarded during the year 2007-08.’ 3. It is noteworthy that the service record entries in the character roll and other materials relating to the period of five years preceding the date of selection i.e. 29.5.2008 was to be considered by the Selection Committee. As per Shri Ashok Khare, learned Senior Counsel there was no adverse material in the service record of the petitioner except a censure entry which was recorded on 13.3.2008. As per Shri Ashok Khare, learned Senior Counsel there was no adverse material in the service record of the petitioner except a censure entry which was recorded on 13.3.2008. On a representation submitted by the petitioner this censure entry was expunged by the Hon’ble High Court on the administrative side vide an order dated 9.4.2009, which was communicated vide formal communication dated 16.4.2009. As far as mention of other adverse materials in the order passed by the District Judge, Rampur dated 31.7.2008 while disposing of the representation of the petitioner is concerned, this adverse material has to be excluded from consideration as the same was of a remote period beyond five years period preceding the date of above date of selection. The events or entries recorded during 1993-1996 were wholly irrelevant and ought not have been considered. 4. In the meantime other events took place in the career of the petitioner. A remark was put by Hon’ble Administrative Judge of Rampur on 24.6.2008. In this case the petitioner has submitted a representation to the Registrar General of High Court against the censure entry. A mistake had been occurred in the title of the representation as the same was addressed to the Inspecting Judge of Rampur not to the Registrar General of High Court as required under the Rules. The following remark has been put by the Hon’ble Administrative Judge, Rampur : “No order on this representation can be passed as it has been addressed to the Inspecting Judge (Rampur) and not to the Registrar General, High Court, Allahabad as required under the Rules.” The applicant is severely warned for this lapse.” 5. Shri Ashok Khare, learned Senior Counsel for the petitioner has submitted that here is a case of an employee who has already undergone mental agony for being superseded on the apex post of ‘Sadar Munsarim’. His intention was not to show any disrespect to this Court or to any other grievance redresal forum of this Court. For this technical lapse of not addressing the representation to the Registrar General, High Court, Allahabad, the petitioner has been severely warned. In normal course this mistake could have been ignored. He has categorically submitted that the petitioner had no intention to show disrespect to the Hon’ble Administrative Judge, Rampur. For this technical lapse of not addressing the representation to the Registrar General, High Court, Allahabad, the petitioner has been severely warned. In normal course this mistake could have been ignored. He has categorically submitted that the petitioner had no intention to show disrespect to the Hon’ble Administrative Judge, Rampur. Even if it was a mistake it was not that serious which could have resulted in putting the said remark adding miseries of the superseded employee nearing the age of retirement. 6. Learned Standing Counsel has resisted the petition. He has drawn the attention of the Court to various submissions put-forth in the counter affidavit and the order passed by the District Judge and the Hon’ble Administrative Judge while putting his remarks. According to him at the relevant time when the Selection Committee made assessment of the work, conduct and performance of the petitioner, it was right in superseding the petitioner as there existed a censure entry. However, the Selection Committee could not have imagined that the censure entry is going to be expunged in future. He has submitted that later on the only adverse material i.e. censure entry was expunged from the character roll of the petitioner. The record pertaining to fie years period for 2002 to 2008 was clean. 7. I have heard learned counsel for the parties and perused the materials on record. 8. It appears from the pleadings that the petitioner is admittedly a senior most clerk belonging to ministerial cadre of Rampur judgeship. There is nothing adverse in his service record of the petitioner at the time of selection except the censure entry which was awarded to him on 13.3.2008. As far as the other adverse materials are concerned, three were of a distant period i.e. of 1996-1999. The character roll entries awarded during five years preceding date of selection are to be considered by the Selection Committee. When the censure entry was expunged there remain nothing adverse in the service record of the petitioner. As far as the warning is concerned, this Court has carefully scrutinised the events preceding circumstances and the contents of the representation. The language used in the representation appears to be submissive and respectful. The only lapse is that the representation was addressed to the Inspecting Judge not to the Registry of the Court. The employee had apologised for this mistake. The language used in the representation appears to be submissive and respectful. The only lapse is that the representation was addressed to the Inspecting Judge not to the Registry of the Court. The employee had apologised for this mistake. There is force in the submission of Shri Ashok Khare, learned Senior Counsel for the petitioner that this mistake could have been ignored on the principle of “Kshama Badan ko Chahiye”. 9. In view of the facts and circumstances, I am of the opinion that this remark should also be expunged from service record of the petitioner. Since the petitioner has already been suffering mental agony for the last two years in pursuing representations and litigation, this Court is of the opinion that this remark put by the Administrative Judge should not come in the way of the petitioner seeking his promotion on the post of ‘Sadar Munsarim’. The remark must be excluded from consideration at the time of reconsideration of the case of the petitioner for promotion. 10. In view of above, the writ petition succeeds and is allowed. 11. The order dated 31.7.2008 passed by the District Judge, Rampur (Annexure-11) and the order dated 24.6.2008 (Annexure-8) passed by Administrative Judge, Rampur are hereby quashed. The respondent No. 3 is directed to reconsider the matter relating to promotion of the petitioner on the post of ‘Sadar Munsarim’ on the basis of seniority-cum-merit principle in District Rampur Judgeship and pass appropriate order in accordance with law. This entire exercise shall be completed within a month from the date of production of certified copy of the judgment and order. The District Judge, Rampur shall take note that the censure entry dated 13.3.2008 has now been expunged and the warning note recorded by the Administrative Judge, Rampur dated 24.6.2008 has been set aside by this Court today. All the necessary consequences shall immediately follow. The petitioner’s case shall be considered for promotion w.e.f. 31.7.2008, from the date when his junior was allowed promotion on the higher post of ‘Sadar Munsarim’ and he shall be entitled for consequential benefits. ————