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2011 DIGILAW 1870 (ALL)

KALOO RAM GUPTA v. STATE OF U. P.

2011-08-04

RAN VIJAI SINGH, VINEET SARAN

body2011
JUDGMENT By the Court.—Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the State-respondent Nos. 1 and 2 and Sri Pushpendra Singh, learned counsel appearing for the respondent No. 3-U.P.Public Service Commission and have perused the record. Learned counsel for the respondents state that they have received instructions. As such, with consent of the learned of the learned counsel for the parties, this writ petition is being disposed of at this stage. 2. The case of the petitioner is that his case for promotion on the post of Additional District Development Officer (Social Welfare) was considered by the U.P.Public Service Commission (hereinafter referred to as the Commission) but the result was kept in a sealed covered on account of some enquiry pending against him. The petitioner states that since the enquiry has been completed long back in which the petitioner has been exonerated, the sealed cover ought to be opened and in case if the recommendation for promotion of the petitioner has been made by the Commission, the State-respondents be directed to promote the petitioner. 3. On having received instructions the learned Standing Counsel appearing for the State-respondents has categorically stated that vide communication dated 6.4.2011 made by the State to the Commission, the Commission was required to open the sealed cover and communicate the result of the petitioner to the State Government. However, despite the aforesaid communication, the same has not been done. 4. Sri Pushpendra Singh, learned counsel appearing for the Commission has, on having received instructions, stated that in response to the communication dated 6.4.2011 the Commission wrote to the State Government to clarify the position in view of the pendency of some S.L.P. filed against the order passed by this Court in Writ Petition No. 1389 (S.B.) of 2007 Prem Kumar Singh v. State of U.P. which related to the fixation of seniority of the incumbents on the post in question. It is thus stated that since there was no reply received from the State Government, hence the sealed cover has not been opened. 5. Be that as it may, it is not for the Commission to take a decision with regard to seniority or appointment on the post, which is exclusively in the domain of the State Government. The Commission is only a recommending body for the purposes of selection on the post in question. 5. Be that as it may, it is not for the Commission to take a decision with regard to seniority or appointment on the post, which is exclusively in the domain of the State Government. The Commission is only a recommending body for the purposes of selection on the post in question. In the present case, the recommendation with regard to other candidates had been made except that of the petitioner, which was because of pendency of enquiry. Once the enquiry is over and the petitioner has been exonerated of the charges and the State Government has communicated to the Commission to open the sealed cover and inform the result of the petitioner, the same ought to have been done immediately on receipt of said communication dated 6.4.2011 made by the State Government. The view taken by us finds support from the judgment of the Apex Court in the case of Union of India and others v. K.V.Jankiraman and others, (1991) 4 SCC 109 where the Apex Court has observed as under : “..... The Tribunal has, therefore, rightly directed the authorities to open the sealed cover. We are, however, unable to understand the direction of the Tribunal to convene a Review DPC for considering the employee’s case on February 1, 1988. If the DPC had considered the case of the employee on February 1, 1988 and withheld the result because of the pending disciplinary proceedings, the proper direction would have been to ask the appellant authority to open the sealed cover and if the employee was found fit for promotion, to direct the authority to promote him from the date on which his immediate junior was promoted as a result of the recommendation of the DPC on February 1, 1988. In case he is so found fit, he would be entitled to the benefits of seniority etc. on a notional basis. However, whether he would be entitled to the arrears of salary for the intervening period and to what extent will have to be decided by the appellant-authority in the light of what we have stated above. ....” 6. In case he is so found fit, he would be entitled to the benefits of seniority etc. on a notional basis. However, whether he would be entitled to the arrears of salary for the intervening period and to what extent will have to be decided by the appellant-authority in the light of what we have stated above. ....” 6. In view of the aforesaid, writ petition is allowed to the extent that the sealed cover with regard to the recommendation of the Commission for the promotion of the petitioner on the post of Additional District Development Officer (Social Welfare) be opened and sent to the State Government as expeditiously as possible, but not later than two weeks from filing of an authenticated/certified copy of this order before the Commission. In case if the petitioner has been recommended for promotion, the State Government shall take action with regard to the promotion of the petitioner in accordance with law and the observations made hereinabove. —————