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2016 DIGILAW 521 (UTT)

Kailash Prakash Joshi v. State of Uttarakhand

2016-08-29

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, C.J. The petitioner was appointed as Assistant Engineer and, later, promoted as Executive Engineer on 06.09.1997 and Superintendent Engineer on 15.12.2007. The prayers sought in the writ petition are as follows: “(a) Writ, order or direction in the nature of certiorari quashing the down-gradation of remarks by the reviewing authority for the period 2010-11 and 2011-12 from very good to good, without assigning any reason and acceptance of the same by the accepting authority without assigning any reason being in teeth of provisions of G.O. dated 5-7-2005 as well as in light of the non-communication of the same to the petitioner and without giving him any opportunity of hearing to contest the down-gradation in Annual Confidential Report. (b) Writ, order or direction in the nature of Mandamus commanding the respondent no. 1 to consider and forward the case of the Petitioner for reconsideration of promotion by the Departmental Promotional Committee to the post of Chief Engineer Level-2, on the basis of the remarks obtained by him from the Reporting Authority for the period 2010-11 and 2011-12. (c) Pass any other orders, directions as deemed fit and proper in the interest of justice. (d) Award cost to the petition. (e) Issue a writ, order or direction in the nature of certiorari calling for record and for quashing the recommendation made by the DPC for promoting private respondent no. 3 in its meeting dated 29.12.2015 and also for quashing the consequent promotion to the post of Chief Engineer, Level-II given to respondent no. 3. (f) Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 to ignore the downgraded good ACR entry recorded by the reviewing authority in respect of reporting year 2010-11 and 2011-12 and treat the “very good” ACR entry recorded by petitioner reporting officer, as valid and to reconsider petitioner’s claim for promotion as Chief Engineer, Level-II by convening review DPC and to promote the petitioner to the post of Chief Engineer, Level-II from the due date i.e. the date of promotion of his junior in view of his seniority and merit with all consequential benefit.” 2. Complaint of the petitioner, in short, is that for promotion to the post of Chief Engineer, Grade-II, D.P.C. was held on 29.12.2015, in which relying on two un-communicated remarks, the petitioner was not recommended and, in place, the third respondent was promoted. Complaint of the petitioner, in short, is that for promotion to the post of Chief Engineer, Grade-II, D.P.C. was held on 29.12.2015, in which relying on two un-communicated remarks, the petitioner was not recommended and, in place, the third respondent was promoted. Petitioner relies on the law laid down by the Hon’ble Apex Court in the case of ‘Dev Dutt Vs. Union of India and others’, reported in (2008) 8 SCC 725 and also on the judgment of this Court passed in Writ Petition (S/B) No. 95 of 2016. 3. Heard Mr. Shobhit Saharia, learned counsel for the petitioner and Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand. 4. There is no dispute that for the years 2010-11 and 2011-12, while the Reporting Officer entered “very good” in the A.C.R. of the petitioner, the same has been downgraded to “good” by the Accepting Officer. In the light of the decision in Writ Petition (S/B) No. 95 of 2016, which is brought to our notice, we see no reason to take a different view. Accordingly, the writ petition is disposed of as follows: We direct the first respondent to constitute a review D.P.C. and the review D.P.C. will consider the case of the petitioner for promotion to the post of Chief Engineer Grade-II and, as far as un-communicated remarks are concerned, a decision will be taken in the light of the judgment of Hon’ble Apex Court in ‘Dev Dutt Vs. Union of India and others’, reported in (2008) 8 SCC 725 , Sukhdev Singh vs. Union of India and ors.’, reported in 2013 (9) SCC 566 and ‘Prabhu Dayal Khandelwal Vs. Chairman, UPSC and others’, reported in 2015 (6) Supreme 692 in accordance with law, and the order of promotion of the party respondent will be subject to the decision of the review D.P.C. The review D.P.C. shall be held and be culminated within a period of three weeks from the date of production of a certified copy of this judgment.