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2010 DIGILAW 2147 (ALL)

MALA KUMARI v. STATE OF U. P.

2010-07-22

DEVENDRA KUMAR ARORA

body2010
JUDGMENT Hon’ble Devendra Kumar Arora, J.—Heard Sri Sudhir Pandey assisted by Sri Rajendra Pandey, Advocate for the petitioner and the learned Standing Counsel for the opposite parties. 2. By means of present writ petition, the petitioner is seeking a writ of mandamus commanding the opposite parties to give all consequential service benefits like promotion with effect from the date of her juniors have been given promotion, by opening the sealed cover containing recommendations of Departmental Promotion Committee for the post of Senior Supply Inspector, in the light of Government Order dated 28.5.1997, contained in Annexure-9 to the writ petition. 3. The brief facts of the case as culled out from the pleadings of the writ petition are as under : The petitioner was appointed as Supply Inspector on 11.5.2001 on the basis of recommendation of Public Service Commission, U.P., Allahabad and submitted her first joining in the office of District Supply Officer, Mirzapur. The petitioner was transferred from Mirzapur to Lucknow and functioned in the office of District Supply Office Lucknow till 6.9.2003. The petitioner was posted at various places as Supply Inspector under Area Rationing Officer and the District Supply Officer, Lucknow and lastly she was posted at Bakshi-ka-Talab, Lucknow. The petitioner was placed under suspension by the Commissioner, Food & Civil Supplies, U.P. Jawahar Bhawan, Lucknow vide order dated 29.4.2009 in contemplation of departmental enquiry relating to petitioner’s posting as Supply Inspector, Hazaratganj, Lucknow w.e.f. 17.12.2005 to 29.6.2007 and the Deputy Commissioner (Food), Lucknow Region, Lucknow was appointed as Enquiry Officer. The validity of the suspension order was challenged by the petitioner by means of Writ Petition No. 2809 (S/S) of 2009; Km. Mala v. State of U.P. and others. This Court by means of order dated 19.5.2009 stayed the implementation and operation of the suspension order dated 29.4.2009 with the observation that enquiry may proceed in accordance with law. In compliance of interim order dated 19.5.2009 the petitioner was reinstated in service but till date no charge-sheet has been served on the petitioner. 4. The submission of learned counsel for the petitioner is that the disciplinary proceedings were also initiated against Sri Devmani Mishra and Sri S.N. Pandey Supply Inspectors vide order dated 27.5.2008 and the Deputy Commissioner (Food), Basti Mandal Basti was appointed as enquiry officer. 4. The submission of learned counsel for the petitioner is that the disciplinary proceedings were also initiated against Sri Devmani Mishra and Sri S.N. Pandey Supply Inspectors vide order dated 27.5.2008 and the Deputy Commissioner (Food), Basti Mandal Basti was appointed as enquiry officer. Similarly, the disciplinary proceeding was initiated against one Sri Uma Nath Bajpai vide order dated 14.9.2009 and the Deputy Commissioner (Food), Lucknow Mandal, Lucknow was appointed as enquiry officer. vide order dated 26.2.2010, 84 persons were promoted by the opposite parties on the post of Senior Supply Inspector in the pay scale of Rs.9300-34800 with grade pay of Rs.4200. The promotion order, contained in Annexure-1, reveals that S/Sri Devmani Mishra, S.N. Pandey and Uma Nath Bajpai against whom disciplinary proceedings were initiated vide orders dated 27.5.2008 and 14.9.2009 respectively have also been promoted on the post of Senior Supply Inspector. 5. The further submission of learned counsel for the petitioner is that before making promotion on the post of Senior Supply Inspector a detail of pending proceeding was prepared by the opposite parties under the signature of Deputy Commissioner (Food), Lucknow Mandal, Lucknow in the month of February, 2010 (Annexure-6 to the writ petition) and perusal of the same reveals that the name of S/Sri Devmani Mishra, S.N. Pandey and Uma Nath Bajpai as well as of the petitioner shown at serial Nos. 5, 6, 7 and 10. It further reveals that all these persons have not been served with the charge-sheet. The opposite parties issued promotion order to S/Sri Devmani Mishra, S.N. Pandey and Uma Nath Bajpai but deprived the petitioner and in a most arbitrary and illegal manner kept the recommendations in sealed cover due to pendency of the disciplinary proceedings. 6. Learned counsel for the petitioner further submitted that this is a settled position that a sealed cover procedure can be resorted only after the charge-sheet/ charge memo is issued or the employee is running under suspension but in the present case the petitioner is neither under suspension nor any charge-sheet has been issued to her till date. Hence, the recommendation of the petitioner cannot be kept in sealed cover. Hence, the recommendation of the petitioner cannot be kept in sealed cover. The counsel for the petitioner also placed reliance on the office memo dated 28.5.1997 (Annexure-9 to the writ petition) which has been issued in pursuance to the judgment passed by Hon’ble Supreme Court in the matter of Union of India and others v. Janki Raman and others dated 28.8.1991. The para-2 of the said office memorandum provides three conditions for keeping the recommendation of the Departmental Promotion Committee in sealed cover; (i) If the employee is placed under suspension (ii) in the pending disciplinary proceeding charge-sheet has been issued and (iii) if criminal proceedings are pending against an employee and charge-sheet has been submitted before the competent Court. The learned counsel for the petitioner pointed out that none of the conditions is applicable in the case of the petitioner. 7. A detailed counter affidavit has been filed by the opposite parties and in para-4 of the same it has been stated that name of the petitioner was considered by the Departmental Promotion Committee for promotion on the post of Senior Supply Inspector alongwith S/Sri Devmani Mishra, S.N. Pandey and Uma Nath Bajpai. Since the annual entries of the petitioner for the years 2005-2006, 2006-2007. 2007-2008 and 2008-2009 were not available, the Departmental Promotion Committee deferred the case of the petitioner for promotion. It has also been mentioned that the promotion of the petitioner has not been deferred on account of the fact that the departmental proceeding has been initiated against the petitioner and the petitioner was placed under suspension vide order dated 29.4.2009, at present she is working in compliance of interim order dated 19.5.2009 passed in Writ Petition No. 2809 (S/S) of 2009. The Deputy Commissioner (Food), Lucknow mandal Lucknow is the Enquiry Officer, who has submitted the charge-sheet for approval and the same has been sent back to the Enquiry Officer after its approval on 29.3.2010. 8. The learned counsel for the petitioner in his rejoinder submitted that the charge-sheet dated 29.3.2010 was served upon her on 29.3.2010 whereas the Departmental Promotion Committee held on 2.2.2010. Therefore, no cognizance could have been taken of the charge-sheet against the petitioner on the date of meeting of the Departmental Promotion Committee. 8. The learned counsel for the petitioner in his rejoinder submitted that the charge-sheet dated 29.3.2010 was served upon her on 29.3.2010 whereas the Departmental Promotion Committee held on 2.2.2010. Therefore, no cognizance could have been taken of the charge-sheet against the petitioner on the date of meeting of the Departmental Promotion Committee. The further submission of the learned counsel is that it is the duty of the department to place the entire record/ full information of the incumbents including the character roll entries before the Departmental Promotion Committee and all these preparation should have been done before calling the Departmental Promotion Committee. In support of his submission learned counsel for the petitioner drawn attention of the Court in para-16 of the Government Order No. 1194/Ka-I/2000-13/15/91 dated 19.5.2001. Learned counsel also placed reliance on the Government Order No. 13/15/91-Ka-1/1993 dated 28.8.1993 (Annexure-RA-1) which provides that in case of non-availability of annual character roll entries of an employee then non-available character roll entry be treated as blank and evaluation of the incumbents be made on the basis of available character roll entries and in view of the Government Order dated 20.8.1993 the promotion of the petitioner cannot be deferred. 9. Learned counsel also submitted that it is the duty of the department to prepared the eligibility list and arrange the annual character roll entries of the current years of the incumbents. In case of non-available of the same, the evaluation on the basis of available character roll entries should have been done by the Departmental Promotion Committee. The counsel for the petitioner very emphatically submitted that till date no adverse entry has been communicated to the petitioner and as such the petitioner has every right to presume that there is no adverse entry or material against the petitioner and if there is any material, which cannot be treated as adverse for the purposes of promotion, crossing of efficiency bar and other service matters in view of Rule 5 of U.P. Government Servants (Disposal of Representation against the Adverse Annual Confidential Reports & Allied Matters) Rules, 1995. Learned counsel for the petitioner prayed that in the interest of justice directions be issued to the opposite parties to convene the Departmental Promotion Committee of the petitioner forthwith and on the basis of available annual character roll entries, her candidature be considered and if her candidature is recommended, she be given promotion from the date when other colleagues of the petitioner as well as juniors to the petitioner have been given promotion i.e. 26.2.2010. 10. I have considered the submissions of learned counsel for the respective parties and gone through the record. 11. It is admitted position that charge-sheet was issued to the petitioner on 29.3.2010 and the Departmental Promotion Committee was held on 2.2.2010 and in pursuance of the recommendation of the Departmental Promotion Committee the promotion orders were issued to the other colleagues of the petitioner. Since present case is not a case of keeping the proceedings of Departmental Promotion Committee in the sealed envelope, the provisions of Government Order dated 28.5.1997 would not be attracted. As per the submission of the opposite parties, the matter of the petitioner’s promotion has been deferred on account of non-availability of annual entries of the years 2005-2006 to 2008-2009. The para-16 of the Government Order dated 19.5.2001 cast a duty upon the administrative department to place the relevant information on the prescribed form before the Departmental Promotion Committee and Government Order dated 20.8.1993 further provides that in case of non-availability of annual character roll entries of any employee then the unavailable character roll entry has to be indicated as blank and evaluation is to be done by the Departmental Promotion Committee on the basis of available character roll entry by treating the unavailable entries as average. 12. There is specific pleadings of the learned counsel for the petitioner that no adverse entry has ever been communicated to the petitioner at any point of time and there is no denial of the said fact except that since annual entries for the period 2005-2006 to 2008-2009 were not available on record, it is not proper to say that there is no adverse material against the petitioner. 13. 13. Rule 5 of Uttar Pradesh Government Servants (Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995 (here-in-after referred to as the Rules, 1995) provides that where an adverse report is not communicated or the representation against an adverse report has not been disposed of in accordance with rule 4, such report shall not be treated as adverse for the purposes of promotion, crossing of efficiency bar and other service matters of the Government servant concerned. Rule 5 of the Rules, 1995 reads as under : “5. Report not to be treated adverse.—Except as provided in Rule 56 of the Uttar Pradesh Fundamental Rules contained in Financial Handbook Volume II, Parts II to IV, where an adverse report is not communicated or a representation against an adverse report has not been disposed of in accordance with Rule 4, such report shall not be treated adverse for the purpose of promotion, crossing of efficiency-bar and other service matters of the Government Servant concerned.” 14. This Court after considering the issue in its entirety is of the view that an employee cannot be made to suffer on account of non-communication of entries on the part of the authorities. The timely recording of the annual entries and maintenance of the record is the responsibility of the administrative department and it is incumbent upon the administrative department to procure all the informations and provide the same in the prescribed proforma to the Departmental Promotion Committee. The State Government has taken care of the situation where such an entry of an employee is not available then as per the Government Order dated 20.8.1993 the said entries have to be reported as blank and evaluation of the employee is to be done on the basis of available entries and the blank entries/unavailable entries is to be assessed as average of the available entries. In view of this back ground there was no occasion for the Departmental Promotion Committee to defer the promotion of the petitioner on account of non-availability of the annual entries of a particular year. In view of this back ground there was no occasion for the Departmental Promotion Committee to defer the promotion of the petitioner on account of non-availability of the annual entries of a particular year. Even otherwise, if there is non-communication of any adverse entry in the prescribed time or the representation of an employee is not disposed of in the time scheduled prescribed under Rule 4 of the Rules, 1995 the said entries cannot be read adverse against an employee for the purposes of promotion, crossing of efficiency-bar and other service matters. 15. In view of the aforesaid discussions, this writ petition is disposed of with the directions to the opposite parties to convene the Departmental Promotion Committee within a period of one month from the date of receipt of a certified copy of this order and consider the candidature of the petitioner for promotion on the post of Senior Supply Inspector on the basis of available record and if her candidature is recommended, she be given promotion from the date of her other colleagues especially juniors to her have been given promotion. Further, it is open for the opposite parties to collect the unavailable entries and if they are not available then the opposite parties are required to proceed with the matter in accordance with the Government order dated 20.8.1993. No order as to costs. ————