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2016 DIGILAW 149 (UTT)

Dhirendra Kumr Mishra v. State of Uttarakhand

2016-04-01

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. JOSEPH, J. Petitioner has approached this Court seeking following reliefs:- “A. Issue a writ order or direction to declare denial of promotion to the post of General Manager to petitioner based on an un-communicated ACR entry recorded contrary to the Government orders dated 5.7.2005 and 30.9.2010 as arbitrary and illegal. B. Issue a writ order or direction in the nature of certiorari calling for the record and for quashing the recommendation made by DPC held on 25.05.2015 and the consequent promotion given on 30.05.2015 (Annexure Nos. 5 and 9 respectively), in so far as it relates to respondent no.3. C. Issue a writ order or direction in the nature of mandamus commanding respondent no.1 to hold review DPC for considering petitioner’s claim for promotion to the post of General Manager by ignoring the un-communicated downgraded ACR entry recorded by the petitioner’s reviewing authority in respect of reporting year 2011-12. D. Issue a writ order or direction in the nature of mandamus commanding respondent No.1 to promote the petitioner to the post of General Manager from the date of promotion of his juniors i.e. 30.05.2015 with all consequential benefits.” 2. Briefly put, the case of the petitioner is as follows :- 3. Petitioner was promoted and working as Superintendent Engineer when D.P.C. was held for the post of General Manager in the Uttarakhand Jal Sansthan. In the D.P.C., first two persons, junior to the petitioner, were promoted to the post of General Manager. It appears that there was an ACR entry in respect of the reporting year 2011-12 which was against the petitioner. It is, on the basis of the same, the petitioner was superseded and in one another vacancy, the party respondent was promoted. In other vacancy, it is a common case that it is fell left un-filled by adopting the seal cover procedure in relation to other employee, namely, Jokhu Ram Gupta. 4. We heard Sri Manoj Tiwari, learned Senior Counsel assisted by Mr. Alok Mahra, Advocate for the petitioner, Mr. A.K. Joshi, Addl. C.S.C. for the State of Uttarakhand / respondent No. 1, Mr. Rakesh Thapliyal, learned counsel for respondent No. 2, Mr. C.K. Sharma alongwith Ms. Soniya Chawla, learned counsel holding brief of Mr. Paresh Tripathi, Advocate for respondent No. 3. 5. Two submissions are made by the learned counsel for the petitioner. A.K. Joshi, Addl. C.S.C. for the State of Uttarakhand / respondent No. 1, Mr. Rakesh Thapliyal, learned counsel for respondent No. 2, Mr. C.K. Sharma alongwith Ms. Soniya Chawla, learned counsel holding brief of Mr. Paresh Tripathi, Advocate for respondent No. 3. 5. Two submissions are made by the learned counsel for the petitioner. In the first place, he would submit that contrary to the mandate of the judgment of the Apex Court in the case of Dev Dutt Vs. Union of India and others, reported in (2008) 8 SCC 725 , the petitioner, while reporting the Officer, has given the entry very good, the reviewing officer downgraded it to satisfactory. The entry was not communicated to the petitioner. Therefore, it should be ignored by the D.P.C. 6. Secondly, he would submit that by proceedings dated 29.02.2016 downgraded entry has been set aside and the original entry has been restored. Therefore, he would submit that the matter requires revisit by the review D.P.C. and, in fact, the order promoting the party respondent be set aside. 7. Shri Rakesh Thapliyal, learned counsel for the Jal Sansthan would submit that there is no need for communication as it was not an adverse entry and it was only a downgraded entry. He would also submit that the order dated 29.02.2016, by which the original entry was restored, was a subsequent event. Shri C.K. Sharma, learned counsel would also make the same submission, i.e. the original entry was restored by a subsequent order and as on date of the D.P.C., namely, 25.05.2015, there was an adverse entry against the petitioner which stood in the way of petitioner being considered. Shri C.K. Sharma would also submit that petitioner can be considered for one of the vacancies which has been left un-filled on account of seal cover procedure which has been adopted. Mr. A.K. Joshi, learned Addl. C.S.C. also adopts the contention that as on date of DPC, there was an adverse entry against the petitioner. 8. It is not in dispute that from amongst the four officers, namely, the petitioner, third respondent, Shri Jokhu Ram Gupta and one another person, who were considered for promotion, petitioner was the seniormost. It appears that there are three vacancies. One vacancy was left unfilled as noticed in respect of which seal cover procedure was adopted that is in the case of Jokhu Ram Gupta. It appears that there are three vacancies. One vacancy was left unfilled as noticed in respect of which seal cover procedure was adopted that is in the case of Jokhu Ram Gupta. Another vacancy was filled up by promoting Shri Sudhir Kumar Sharma. Shri Sudhir Kumar Sharma is also junior to the petitioner but it is noteworthy that his promotion is not challenged. Therefore, the said promotion cannot be interfered with. Admittedly, the petitioner is senior to the third respondent. 9. Therefore, in respect of said vacancy, there must be review DPC held in the light of two facts which were noted namely - 1. Downgraded entry was not communicated to the petitioner. 2. Subsequently the adverse entry has been set aside by order dated 29.02.2016. 10. When the petitioner pressed for the setting aside of the order, Shri Rakesh Thapliyal, would submit that review DPC can be held and the promotion of the third respondent can be made subject to the review DPC. In the light of this stand, we pass the following order:- We direct that there will be review DPC held taking note of principle laid down by the Apex Court in the case of Dev Dutt (Supra) regarding the effect of the un-communicated adverse remarks. So also review DPC will look into effect of the order dated 29.02.2016 wherein adverse remark has been removed and the promotion given to the third respondent will be subject to the decision of the said review DPC. We make it clear that review DPC is directed only in respect of vacancy which is filled by promoting third respondent and we are not making any observation or direction in respect of the other two vacancies. Respondent No. 1 will convene a review DPC and conclude the proceedings in the light of directions made above within a period of four weeks from the date of production of copy of the order. Once review DPC is held, final decision thereon be taken one month thereafter. 11. The writ petition stands disposed of accordingly.