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J&K High Court · body

2010 DIGILAW 370 (JK)

Kanchan Razdan v. State Of J&K

2010-07-01

Sunil Hali

body2010
1. Unilateral withdrawal of the petitioner’s promotion to the post of Senior Office Assistant made by the respondents on 20.1.1998 has been questioned by the petitioner in the present writ petition. 2. The facts in brief be noticed as under: The petitioner came to be appointed as Junior Office Assistant in the pay scale of Rs. 950-1500/-along with allowances as admissible under rules by the respondents on 8.9.1988 on temporary basis. On completion of two years’ service, she was eligible for confirmation to the said post. Non constitution of the Departmental Promotion Committee resulted in delay in confirmation of the petitioner’s service. She, however, was regularised against the aforementioned post vide order dated 30.03.1992 w.e.f. 2.10.1989. The seniority list of Junior Office Assistant/Hindi Typist as on 1.7.1993, was issued by the respondents vide order dated 6.9.1993, which reflects the petitioner’s name at Sr. No. 63. She was satisfied with her placement in the said seniority list. Another seniority list of Junior Office Assistant/Hindi Typist as on 1.1.1995, was issued by the respondents on 28.2.1995, wherein the petitioner’s name was shown at Serial No. 50. It seems that vide confidential memorandum issued by Regional Executive Director, Delhi, the petitioner was informed that her over-all performance for the year 1.1.1994 to 31.12.1994 has been graded as `Fair’ and was advised to improve her work, conduct and performance. 3. A representation was filed by the petitioner against the said APRs, wherein it was contended that her performance remained good and as such, there was no occasion to state that petitioner’s work was fair. The said representation of the petitioner, however, was not decided. Another seniority list issued by the respondents on 17th of June’97, pulls down the petitioner from SI.No.50 to 73, against which the petitioner made a representation along with other officials who were also aggrieved of their placement in the said seniority list. The plea raised by the petitioner in the said representation was rejected by the respondents on the ground that due to her non confirmation against the grade of Junior Office Assistant, her seniority has been pushed down. Petitioner filed one more representation against the aforementioned order passed by the respondents. While as these representations were pending, respondents in the meanwhile had issued another order dt. Petitioner filed one more representation against the aforementioned order passed by the respondents. While as these representations were pending, respondents in the meanwhile had issued another order dt. 20th of Jan’98, whereby, the Junior Office Assistants who had completed 8 years of regular service were promoted to the post of Senior Office Assistant on adhoc basis under Flexible Complementary Scheme in the pay scale of Rs. 2950-4850/-. The effect to the said promotion was given from 1st of Nov’97. Petitioner’s name figured at SI.No.27 of the said order. 4. The respondents, thereafter, vide order dt. 3rd of Feb’98, modified the above order in respect of the petitioner in whose case, the said order was withdrawn so far as it related to promotion. The petitioner was given the benefit of placement of higher grade only. On her representation against the aforementioned order of modification, she was informed that having found not fit by the Departmental Promotion Committee for consideration and she having lost the seniority, her seniority No. is 73, and being a junior she has not been given the promotion but granted the higher scale under the aforementioned Scheme. 5. In the meanwhile, it transpires that the persons who had been promoted to the post of Senior Office Assistant along with the petitioner on adhoc basis were regularized against the aforementioned post w.e.f. 1st of Jan’99. Repeated representations against the aforementioned order by the petitioner came to be finally disposed of by the respondents vide order dt. 24th of June’99, conveyed to the petitioner vide memorandum dt. 9th of July’99. The petitioner was informed that she could not be confirmed against the grade of Junior Office Assistant due to adverse report and due to the said fact, she was placed at SI.No.73 and was not promoted to the post of Senior Office Assistant. 6. The contention of the petitioner is that once she was promoted as Senior Office Assistant vide order dt. 20th of Jan’98, the said order could not have been revoked without notice to her. It is stated that the withdrawal of promotion order has been made on the basis of adverse report in the APRs for the year 1994-95, against which the petitioner had made representation, but the same was not decided. 20th of Jan’98, the said order could not have been revoked without notice to her. It is stated that the withdrawal of promotion order has been made on the basis of adverse report in the APRs for the year 1994-95, against which the petitioner had made representation, but the same was not decided. It is under these circumstances stated that no reliance could have been placed on the said APRs by the respondents while considering the case of the petitioner for promotion to the post of Senior Office Assistant. 7. On the other hand, the case of respondents is that petitioner was appointed on compassionate grounds on 16th of Sept.’88, but her appointment was not confirmed due to her non passing of the typing test. It is further stated that later on, the respondents taking a compassionate view, exempted the petitioner from passing the typing test on 15th of March’93. It was on this ground, the petitioner lost her seniority. The further stand taken by them is that the promotion of the petitioner to the post of Senior Office Assistant was made due to some clerical mistake. This in essence is the case set out by the respondents. 8. While construing the controversy involved in the present case, it be seen that the petitioner was promoted as Senior Office Assistant on 20th of Jan’98. The said promotion was made by taking into consideration the seniority list issued in the year 1995, in which petitioner’s name was shown at SI.No.50. While making promotion to the next higher post, seniority seems to be the sole criteria adopted by the respondents and they could not have ignored this aspect of the matter that the petitioner’s seniority stood changed in the year 1997. Under these circumstances, it cannot be said that the promotion of the petitioner was made due to some clerical mistake. This is one aspect of the matter. 9. The contention of the respondents is that the petitioner having failed to qualify the typing test could not be confirmed. In the same breath, it is stated that she was exempted from passing the typing test. This is one aspect of the matter. 9. The contention of the respondents is that the petitioner having failed to qualify the typing test could not be confirmed. In the same breath, it is stated that she was exempted from passing the typing test. Once the petitioner was given this benefit of exemption from appearing in the typing test, the natural consequence of the same would be that the petitioner would become eligible for confirmation as the bar imposed for her confirmation regarding passing of typing test stood withdrawn after she was exempted from appearing in the said test. Since the qualifying of the typing test was exempted, the natural consequence of the same, as indicated above, would be that the petitioner was required to be confirmed against the post. 10. It be also seen that the respondents were aware of this fact that exemption was granted to the petitioner from appearing in the typing test which consequently led to her placement at SI.No.50 in the seniority list issued in the year 1995. By another summersault, the respondents brought her seniority from 50 to 73 on the specious plea that the petitioner was not confirmed as Junior Office Assistant. While this seniority was in wake, the respondents issued the promotion order dt. 20th of Jan’98 promoting the petitioner to the post of Senior Office Assistant. One fails to comprehend that if her seniority was fixed in the year 1997 vide order dt. 17th of June’97 at SI.No.73, how could she be promoted on 20th of Jan’98. It seems that some invisible hand was working against the petitioner who would unsettle the settled position acquired by the petitioner. 11. The confidential memorandum was issued to the petitioner on 23rd of May’95, for the year 1.1.94 to 31.12.94, wherein she was graded as `fair’. The said communication was received by the petitioner and she accordingly filed representation against it. Without deciding the said representation, the respondents have used the said APRs against the petitioner in not considering her case for promotion to the post of Senior Office Assistant. It is settled law that adverse entries in the APRs cannot be relied upon unless they are communicated to the official concerned. Without deciding the said representation, the respondents have used the said APRs against the petitioner in not considering her case for promotion to the post of Senior Office Assistant. It is settled law that adverse entries in the APRs cannot be relied upon unless they are communicated to the official concerned. The law further envisages that if any representation against the said adverse entries in the APRs is made, the same is required to be decided and decision of the same has to be communicated to the official. While scanning through the pleadings of the parties, the petitioner has specifically stated that the representation filed by her against the said APRs has not been disposed of by the respondents. The respondents in reply to the said averments made in the writ petition have nowhere denied in their response the said aspect of the matter except stating that the seniority of the petitioner has been pushed down from SI.No.50 to 73 because she failed to complete the legal formality of passing the typing test. 12. It would, thus, be seen that the representation made by the petitioner against her adverse APRs has not been decided and despite that, the same have been relied upon by the respondents in denying her promotion. 13. From the above discussion, I hold as under:- 1. That after exemption was granted to the petitioner from appearing in the typing test, she could not be denied the right to be confirmed against the post of Junior Office Assistant and would be eligible for such confirmation after such an exemption. The stand of the respondents, in this regard, is not only arbitrary but malafide also; 2. That it is well settled position of law that seniority has to be reckoned from the date of appointment and not from the date of confirmation. The plea of respondents that seniority of the petitioner has been brought down from 50 to 73 due to her non confirmation against the post of Junior Office Assistant, is not in consonance with the law. The date of confirmation has no relevance for fixation of the seniority. As indicated above, it is only the date of appointment and not the confirmation which determines the seniority; 3. That the unilateral withdrawal of the order of promotion in the case of the petitioner is in violation of the rules of natural justice. The date of confirmation has no relevance for fixation of the seniority. As indicated above, it is only the date of appointment and not the confirmation which determines the seniority; 3. That the unilateral withdrawal of the order of promotion in the case of the petitioner is in violation of the rules of natural justice. No notice to the petitioner has been given in this behalf. As such, the order impugned is violative of Article 14 of the Constitution of the India. 14. For the reasons stated above, this petition is allowed. Order impugned dt. 3rd of Feb’98, by virtue of which the promotion of the petitioner to the post of Senior Office Assistant was withdrawn with the only relief of higher grade is quashed. The consequent order bringing down the seniority of the petitioner from SI.No.50 to 73 is also set aside. The respondents, are accordingly, directed to treat the petitioner to have been promoted to the post of Senior Office Assistant along with release of higher pay scale attached to the said post w.e.f. 1st of Nov’97, as was done vide order dt. 20th of Feb’98. The petitioner shall also be confirmed against the said promoted post along with other promotees who were given the said benefit of promotion along with the petitioner vide aforementioned order, along with all consequential benefits. Let this exercise be completed and appropriate orders passed within a period of three months from the date a copy of this order is made available to the respondents by the petitioner. Disposed of accordingly.<%-2>3. A representation was filed by the petitioner against the said APRs, wherein it was contended that her performance remained good and as such, there was no occasion to state that petitioner’s work was fair. The said representation of the petitioner, however, was not decided. Another seniority list issued by the respondents on 17th of June’97, pulls down the petitioner from SI.No.50 to 73, against which the petitioner made a representation along with other officials who were also aggrieved of their placement in the said seniority list. The plea raised by the petitioner in the said representation was rejected by the respondents on the ground that due to her non confirmation against the grade of Junior Office Assistant, her seniority has been pushed down. Petitioner filed one more representation against the aforementioned order passed by the respondents. The plea raised by the petitioner in the said representation was rejected by the respondents on the ground that due to her non confirmation against the grade of Junior Office Assistant, her seniority has been pushed down. Petitioner filed one more representation against the aforementioned order passed by the respondents. While as these representations were pending, respondents in the meanwhile had issued another order dt. 20th of Jan’98, whereby, the Junior Office Assistants who had completed 8 years of regular service were promoted to the post of Senior Office Assistant on adhoc basis under Flexible Complementary Scheme in the pay scale of Rs. 2950-4850/-. The effect to the said promotion was given from 1st of Nov’97. Petitioner’s name figured at SI.No.27 of the said order. 4. The respondents, thereafter, vide order dt. 3rd of Feb’98, modified the above order in respect of the petitioner in whose case, the said order was withdrawn so far as it related to promotion. The petitioner was given the benefit of placement of higher grade only. On her representation against the aforementioned order of modification, she was informed that having found not fit by the Departmental Promotion Committee for consideration and she having lost the seniority, her seniority No. is 73, and being a junior she has not been given the promotion but granted the higher scale under the aforementioned Scheme. 5. In the meanwhile, it transpires that the persons who had been promoted to the post of Senior Office Assistant along with the petitioner on adhoc basis were regularized against the aforementioned post w.e.f. 1st of Jan’99. Repeated representations against the aforementioned order by the petitioner came to be finally disposed of by the respondents vide order dt. 24th of June’99, conveyed to the petitioner vide memorandum dt. 9th of July’99. The petitioner was informed that she could not be confirmed against the grade of Junior Office Assistant due to adverse report and due to the said fact, she was placed at SI.No.73 and was not promoted to the post of Senior Office Assistant. 6. The contention of the petitioner is that once she was promoted as Senior Office Assistant vide order dt. 20th of Jan’98, the said order could not have been revoked without notice to her. 6. The contention of the petitioner is that once she was promoted as Senior Office Assistant vide order dt. 20th of Jan’98, the said order could not have been revoked without notice to her. It is stated that the withdrawal of promotion order has been made on the basis of adverse report in the APRs for the year 1994-95, against which the petitioner had made representation, but the same was not decided. It is under these circumstances stated that no reliance could have been placed on the said APRs by the respondents while considering the case of the petitioner for promotion to the post of Senior Office Assistant. 7. On the other hand, the case of respondents is that petitioner was appointed on compassionate grounds on 16th of Sept.’88, but her appointment was not confirmed due to her non passing of the typing test. It is further stated that later on, the respondents taking a compassionate view, exempted the petitioner from passing the typing test on 15th of March’93. It was on this ground, the petitioner lost her seniority. The further stand taken by them is that the promotion of the petitioner to the post of Senior Office Assistant was made due to some clerical mistake. This in essence is the case set out by the respondents. 8. While construing the controversy involved in the present case, it be seen that the petitioner was promoted as Senior Office Assistant on 20th of Jan’98. The said promotion was made by taking into consideration the seniority list issued in the year 1995, in which petitioner’s name was shown at SI.No.50. While making promotion to the next higher post, seniority seems to be the sole criteria adopted by the respondents and they could not have ignored this aspect of the matter that the petitioner’s seniority stood changed in the year 1997. Under these circumstances, it cannot be said that the promotion of the petitioner was made due to some clerical mistake. This is one aspect of the matter. 9. The contention of the respondents is that the petitioner having failed to qualify the typing test could not be confirmed. In the same breath, it is stated that she was exempted from passing the typing test. This is one aspect of the matter. 9. The contention of the respondents is that the petitioner having failed to qualify the typing test could not be confirmed. In the same breath, it is stated that she was exempted from passing the typing test. Once the petitioner was given this benefit of exemption from appearing in the typing test, the natural consequence of the same would be that the petitioner would become eligible for confirmation as the bar imposed for her confirmation regarding passing of typing test stood withdrawn after she was exempted from appearing in the said test. Since the qualifying of the typing test was exempted, the natural consequence of the same, as indicated above, would be that the petitioner was required to be confirmed against the post. 10. It be also seen that the respondents were aware of this fact that exemption was granted to the petitioner from appearing in the typing test which consequently led to her placement at SI.No.50 in the seniority list issued in the year 1995. By another summersault, the respondents brought her seniority from 50 to 73 on the specious plea that the petitioner was not confirmed as Junior Office Assistant. While this seniority was in wake, the respondents issued the promotion order dt. 20th of Jan’98 promoting the petitioner to the post of Senior Office Assistant. One fails to comprehend that if her seniority was fixed in the year 1997 vide order dt. 17th of June’97 at SI.No.73, how could she be promoted on 20th of Jan’98. It seems that some invisible hand was working against the petitioner who would unsettle the settled position acquired by the petitioner. 11. The confidential memorandum was issued to the petitioner on 23rd of May’95, for the year 1.1.94 to 31.12.94, wherein she was graded as `fair’. The said communication was received by the petitioner and she accordingly filed representation against it. Without deciding the said representation, the respondents have used the said APRs against the petitioner in not considering her case for promotion to the post of Senior Office Assistant. It is settled law that adverse entries in the APRs cannot be relied upon unless they are communicated to the official concerned. Without deciding the said representation, the respondents have used the said APRs against the petitioner in not considering her case for promotion to the post of Senior Office Assistant. It is settled law that adverse entries in the APRs cannot be relied upon unless they are communicated to the official concerned. The law further envisages that if any representation against the said adverse entries in the APRs is made, the same is required to be decided and decision of the same has to be communicated to the official. While scanning through the pleadings of the parties, the petitioner has specifically stated that the representation filed by her against the said APRs has not been disposed of by the respondents. The respondents in reply to the said averments made in the writ petition have nowhere denied in their response the said aspect of the matter except stating that the seniority of the petitioner has been pushed down from SI.No.50 to 73 because she failed to complete the legal formality of passing the typing test. 12. It would, thus, be seen that the representation made by the petitioner against her adverse APRs has not been decided and despite that, the same have been relied upon by the respondents in denying her promotion. 13. From the above discussion, I hold as under:- 1. That after exemption was granted to the petitioner from appearing in the typing test, she could not be denied the right to be confirmed against the post of Junior Office Assistant and would be eligible for such confirmation after such an exemption. The stand of the respondents, in this regard, is not only arbitrary but malafide also; 2. That it is well settled position of law that seniority has to be reckoned from the date of appointment and not from the date of confirmation. The plea of respondents that seniority of the petitioner has been brought down from 50 to 73 due to her non confirmation against the post of Junior Office Assistant, is not in consonance with the law. The date of confirmation has no relevance for fixation of the seniority. As indicated above, it is only the date of appointment and not the confirmation which determines the seniority; 3. That the unilateral withdrawal of the order of promotion in the case of the petitioner is in violation of the rules of natural justice. The date of confirmation has no relevance for fixation of the seniority. As indicated above, it is only the date of appointment and not the confirmation which determines the seniority; 3. That the unilateral withdrawal of the order of promotion in the case of the petitioner is in violation of the rules of natural justice. No notice to the petitioner has been given in this behalf. As such, the order impugned is violative of Article 14 of the Constitution of the India. 14. For the reasons stated above, this petition is allowed. Order impugned dt. 3rd of Feb’98, by virtue of which the promotion of the petitioner to the post of Senior Office Assistant was withdrawn with the only relief of higher grade is quashed. The consequent order bringing down the seniority of the petitioner from SI.No.50 to 73 is also set aside. The respondents, are accordingly, directed to treat the petitioner to have been promoted to the post of Senior Office Assistant along with release of higher pay scale attached to the said post w.e.f. 1st of Nov’97, as was done vide order dt. 20th of Feb’98. The petitioner shall also be confirmed against the said promoted post along with other promotees who were given the said benefit of promotion along with the petitioner vide aforementioned order, along with all consequential benefits. Let this exercise be completed and appropriate orders passed within a period of three months from the date a copy of this order is made available to the respondents by the petitioner. Disposed of accordingly.