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2013 DIGILAW 297 (ALL)

Ravi Kund Singh v. State of U. P. and Others

2013-01-24

SURENDRA VIKRAM SINGH RATHORE

body2013
Surendra Vikram Singh Rathore, J.— 1. Heard learned counsel for the parties and perused the material available on record. 2. By means of the instant writ petition, the petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India to issue a writ in the nature of certiorari quashing the order dated 10.12.2010 whereby the proposal for promotion of the petitioner was not approved on the ground that he has attained the age of superannuation and further to issue a writ in the nature of mandamus commanding the respondents to make payment of arrears of salary treating the petitioner as promoted with effect from 30.10.2004. 3. Brief facts necessary for disposal of the present controversy are that the petitioner was appointed as Clerk in the Jawahar Lal Nehru Memorial Postgraduate College, Barabanki in the year 1976. One J.B. Maurya, was working on the post of Office Superintendent, was compulsorily retired on 17.09.2001. Since the petitioner was the senior most Clerk in the college, therefore the charge of Office Superintendent was given to him on the very next day i.e. 18.09.2001. On 6.4.2002, the Principal of the college issued an order that entire charge be given to the petitioner by Shri J.B. Maurya. On 22.4.2002, Committee of Management passed a resolution in which, it was decided that entire charge was not given to the petitioner by Shri J.B. Maurya, therefore, in the presence of the Magistrate, Almirah was opened and entire charge was given to the petitioner for the post of Office Superintendent. The date of superannuation of J.B. Maurya was 30.11.2004 but he was compulsorily retired on 17.09.2001. The order of compulsory retirement was challenged by him by filing a writ petition, which was allowed and therefore, vide order dated 4.4.2007, he was treated to be in service upto 30.11.2004, the age of his superannuation. The petitioner moved a detailed application before the Committee of Management and concerned authorities for his promotion as well as for payment of salary payable to him for the post of Office Superintendent with effect from 18.9.2001 but no action was taken. Feeling aggrieved thereby the petitioner filed instant writ petition. 4. While entertaining the instant writ petition, this Court vide order dated 14.11.2008 directed the respondent no. 5 for considering the case of the petitioner for promotion. Feeling aggrieved thereby the petitioner filed instant writ petition. 4. While entertaining the instant writ petition, this Court vide order dated 14.11.2008 directed the respondent no. 5 for considering the case of the petitioner for promotion. In compliance of the same, Committee of Management in which, the District Magistrate, Barabanki and Sub Divisional Magistrate, Barabanki were President and Secretary respectively took a decision for promotion of the petitioner after approval from the Regional Director, Higher Education, Lucknow (respondent no. 3) as provided under the rules. The said proposal was submitted to the concerned authorities for approval, the respondent nos. 2 and 3 had not taken any decision on the recommendation of the committee of management, therefore, this Court again issued an interim direction to the respondent no. 2 for taking a decision regarding petitioner's promotion. As the order dated 28.7.2010 was not complied with, the petitioner filed a Contempt Petition No. 1793 of 2010 wherein notice was issued to the Director Higher Education, U.P. Lucknow (respondent no. 2) for taking decision before 30.8.2010. On 27.8.2010 a decision was taken by the committee of management for promotion of the petitioner with effect from 30.11.2004 in the pay scale of Rs. 5200-20200 + pay grade 2800. The necessary papers were sent by the Principal of the college before respondent no. 2 for approval on 27.8.2010, the same were also sent through registered post on 7.10.2010. On 31.8.2010, the petitioner attained the age of superannuation. On 10.12.2010 by the impugned order, the aforesaid proposal for promotion of the petitioner was rejected on the ground that since the petitioner has already attained the age of superannuation, therefore, no decision was taken for his promotion. This subsequent development was brought on record by way of amendment in the writ petition and prayer was accordingly amended. 5. It is submitted on behalf of the petitioner that respondent no. 2 while passing the impugned order has committed gross illegality as he had not taken any decision on the proposal submitted by the Committee of Management. When he was summoned in the contempt proceedings then feeling annoyed by the contempt notice, this order has been passed without any basis without mentioning any rule or reason as to why the proposal cannot be accepted and the petitioner cannot be promoted. When he was summoned in the contempt proceedings then feeling annoyed by the contempt notice, this order has been passed without any basis without mentioning any rule or reason as to why the proposal cannot be accepted and the petitioner cannot be promoted. The concerned authorities themselves had not taken any decision on the proposal and during the pendency of the said proposal, the petitioner attained the age of superannuation. His attaining the age of superannuation was made ground to decline the said benefit. 6. Learned counsel for the petitioner further submitted that the petitioner was promoted with effect from 30.11.2004 when Shri J.B. Maurya attained the age of superannuation and therefore, he was entitled for promotion from the said date and was also entitled for the difference of salary. 7. In this case no counter affidavit has been filed on behalf of the respondents. 8. Perusal of the record clearly shows that the committee of management took a decision to promote the petitioner on the post of Office Superintendent with effect from 30.11.2004 and proposal for the same was sent to the concerned authorities. But no decision was taken by the authorities concerned on the said proposal. It was only after the issuance of the contempt notice that decision was taken. Perusal of the impugned order shows that it could not find favour on the ground that there is no justification for promotion as the petitioner has already attained the age of superannuation. 9. Hon'ble the Apex Court in the case of Union of India Vs. Hemraj Singh Chauhan and others reported in [ AIR 2010 SC 1682 ] has considered the effect of delay in taking decision by the government authorities. It transpires from the impugned order that the authorities concerned on the basis of a ground which came into existence because of their own inaction has declined the promotion of the petitioner. To be considered for promotion on the next higher post in service is a right vested in an employee. This aspect has been considered by Hon'ble the Apex Court in the case of A. Satya Narayana and other Vs. S. Purushotham and others reported in [ (2008) 5 SCC 416 ] has held in paragraph no. 30 as under:- "30. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. This aspect has been considered by Hon'ble the Apex Court in the case of A. Satya Narayana and other Vs. S. Purushotham and others reported in [ (2008) 5 SCC 416 ] has held in paragraph no. 30 as under:- "30. Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all times to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India." 10. In the facts of this case, the petitioner was considered for promotion and was found fit to be promoted and accordingly, proposal for this promotion was submitted, which could not find favour from the respondents because of their own inaction by not taking any decision on the same. It was only after the retirement of the petitioner, the decision was taken and the same was declined. 11. Keeping in view the aforementioned factual legal position, the promotion of the petitioner was wrongly declined. Since no decision was taken by the respondents, therefore, rejection of the proposal for promotion of the petitioner on the ground that since he has attained the age of superannuation, hence it would not be just to promote him, cannot be said to be a legal, valid and sustainable ground. If such an order is allowed to stand, then it would amount to punish the petitioner for the inaction of the respondents and for no fault of the petitioner, which would not be justified. Since decision has to be taken by the concerned authorities. 12. Therefore, this writ petition deserves to be allowed and is hereby allowed. Impugned order dated 10.12.2010 passed by the Director Higher Education, U.P., Lucknow is hereby quashed. The respondents are directed to treat the petitioner as promoted since 30.11.2004 and to ensure payment of arrears of salary to him in accordance with law. He shall also be entitled to all consequential benefits. _____________