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2017 DIGILAW 2417 (ALL)

. v. STATE OF U. P.

2017-10-25

NEERAJ TIWARI, RAN VIJAI SINGH

body2017
JUDGMENT : 1. We have heard Sri G.S.Srivastava along with Sri Akhilesh Kumar Pandey, learned counsel for the petitioner and Sri Anil Kumar Singh, learned Additional Chief Standing Counsel for the State respondents. 2. By means of this writ petition, prayer has been made to issue a writ of certiorari quashing the entire proceedings with regard to promotions dated 18.2.2010, 10.8.2010 and 13.8.2010 and consequential promotion orders dated 25.2.2010, 18.8.2010, 18.8.2010, 18.8.2010 and 19.8.2010 (annexures 7 to 11 of the writ petition respectively). Prayer has also been made to promote the petitioner w.e.f. 7.3.2006 when the juniors were promoted. Through amendment, another prayer has been added for payment of revised pension, gratuity and other benefits on the basis of promotion on the post of Joint Excise Commissioner. 3. The facts of this case, in brief, are that the petitioner, while working as Assistant Excise Commissioner, had been considered for promotion on the post of Deputy Excise Commissioner by the Departmental Promotion Committee. The meetings were held on different dates. However, when the promotion orders were issued, name of the petitioner was missing. 4. It is stated in paragraphs 15, 16 and 17 of the writ petition that Sri Krishna Prasad, Sri Hoti Lal and Sri Tulsi Ram (the respondents no. 4, 5 and 6), who were juniors to the petitioner, have been promoted on the post of Deputy Excise Commissioner and the petitioner has arbitrarily been ignored. Along with the petitioner, several other persons were also considered for promotion by the Departmental Promotion Committee belonging to the general category. However, learned counsel for the petitioner submitted that his case is confined only with respect to the category of scheduled caste.The main ground of challenge to the promotion is that the Departmental Promotion Committee has not laid down any criteria for declaring the persons unfit as has been held by the Apex Court in Union of India and others Vs. Lt. Gen. Rajendra Singh Kadyan and another, (2000) 6 Supreme Court Cases 698 and Diploma Engineers Sangh Vs. State of Uttar Pradesh and others (2007) 13 Supreme Court Cases 300, wherein the Apex Court has held that the Departmental Promotion Committee must lay down criteria for declaring the candidates unfit for promotion. Another ground has been taken with respect to candidates belonging to general category even those persons were promoted, who have been awarded more adverse/censure entries than the petitioner. 5. Another ground has been taken with respect to candidates belonging to general category even those persons were promoted, who have been awarded more adverse/censure entries than the petitioner. 5. This Court, considering the petitioner's argument, on 2.12.2011 had passed the following order :- The petitioner alleges to have been discriminated in promotion to the post of Deputy Commissioner of Excise. It appears that after the judgment of the High Court has been set aside by Hon'ble Supreme Court on 18.11.2009, the Departmental Promotion Committee met to grant notional promotion to those, who had retired and to consider for promotion to those, who are in service. The criteria of the promotion is seniority subject to rejection of unfit. 6. Learned Standing Counsel has accepted notice on behalf of respondent nos. 1 to 3. He is allowed two weeks' time to seek instructions and inform the Court of the reasons on which the petitioner has been superseded by his juniors. 7. Pursuant thereto, counter affidavit has been filed by the State respondents. During the pendency of the writ petition, it appears the petitioner had retired from service on 31.7.2013. Through amendment, prayer no. C has been added for payment of revised pension, gratuity and other benefits for being promoted on the post of Joint Excise Commissioner. The aforesaid amendment application was allowed by this Court on 17.10.2016. 8. To the writ petition, counter affidavit has been filed and to the amendment application, supplementary counter affidavit has been filed. Since counter and rejoinder affidavits have been exchanged, writ petition is taken up for final disposal with the consent of learned counsel for the parties. 9. As we have noticed that the petitioner's main ground to challenge the impugned order is that the respondents no. Since counter and rejoinder affidavits have been exchanged, writ petition is taken up for final disposal with the consent of learned counsel for the parties. 9. As we have noticed that the petitioner's main ground to challenge the impugned order is that the respondents no. 4, 5 and 6, who were juniors to the petitioner, have illegally been promoted ignoring the petitioner and these averments have been made in paragraphs 15, 16 and 17 of the writ petition, therefore it would be appropriate to go through the reply of these paragraphs which has been given in paragraphs 9, 10 and 11 of the counter affidavit, which are reproduced herein under :- That the contents of paragraph 15 of the writ petition are not admitted and in reply it is submitted that the junior to the petitioner, namely Shri Krishna Prasad has been promoted on the post of Deputy Excise Commissioner due to the reason that there was only one adverse entry and one warning in the service record of said Krishna Prasad at that relevant period of time while there were 12 adverse entries and punishment awarded to the petitioner and as such the departmental promotion committee has not found him fit for being promoted on the post of Deputy Excise Commissioner. 10. That the contents of paragraph 16 of the writ petition are not admitted and in reply it is submitted that there was only two adverse entries awarded to another junior to the petitioner, namely Sri Hoti Lal while as stated above, there were 12 adverse entries and punishment awarded to the petitioner and as such the departmental promotion committee has not found him fit for being promoted on the post of Deputy Excise Commissioner. 11. That the contents of paragraph 17 of the writ petition are not admitted and in reply it is submitted that since the service record of the petitioner was not satisfactory and there were 12 adverse entries and punishment awarded to the petitioner and as such the departmental promotion committee has not found him fit for being promoted on the post of Deputy Excise Commissioner. Hence it is wrong to say by the petitioner that despite of unblemished service record, he has not been promoted on the post in question. Hence it is wrong to say by the petitioner that despite of unblemished service record, he has not been promoted on the post in question. It is further submitted that in comparison to the petitioner, the service record of junior to the petitioner Sri Tulsi Ram was unblemished and he was not awarded any punishment and as such he was promoted on the post of Deputy Excise Commissioner. 12. The petitioner has also filed rejoinder affidavit. The reply of paragraph 9, 10 and 11 of the counter affidavit has been given in paragraph 7 of the rejoinder affidavit. The relevant portion of the same is reproduced herein under :- It is further submitted that the D.P.C. again committed gross illegality by considering comparative merit on the basis of alleged entries which is not permissible under Rules as once the eligibility list has been prepared including the name of the petitioner as suitable and eligible for promotion and under Rules also the seniority cum eligibility list has never been challenged and in all case it will be considered for promotion purposes as such it is absolutely incorrect to say that since junior Officer Krishna Prasad has got only one adverse entry and one warning in compression to the petitioner so he was promoted is wholly illegal and against the Rules. 13. It is further submitted that in paragraph under reply it has incorrectly been stated that Sri Krishna Prasad has only one warning whereas that broad sheet of Sri Krishna Pradad (Annxexure 19 to the writ petition) goes to show that there are two entries one of censor entry and one warning, so the averments made by the respondents in the paragraph under reply is incorrect. 14. Likewise, with regard to the entries of Sri Hoti Lal as stated in para 10 of the counter affidavit it is submitted that two adverse entries were given to him during his service carrier as Excise Inspector in the year 1992-93 compared from the petitioner. These entries could not be considered under Rules as he was Excise Inspector and it is more than 10 years old entries. 15. Whereas reply of paragraph 17 of the counter affidavit has been given in paragraph 10 of the rejoinder affidavit, which too is reproduced herein under :- 10. That the contents of paragraphs 17 and 18 of the affidavit are incorrect and as such are not admitted. 15. Whereas reply of paragraph 17 of the counter affidavit has been given in paragraph 10 of the rejoinder affidavit, which too is reproduced herein under :- 10. That the contents of paragraphs 17 and 18 of the affidavit are incorrect and as such are not admitted. The averments made in these paragraphs are vague and confusing. The deponents reiterates the contents of paras 26 and 27 of the writ petition. 16. From the perusal of paragraphs 9, 10 and 11 of the counter affidavit, it transpires that Sri Krishna Prasad, the respondent no. 4, was promoted on the post of Deputy Excise Commissioner for the reason that there was only one adverse entry and one warning in the service record of Sri Krishna Prasad at that relevant time, whereas there were 12 adverse entries and censure entries were awarded to the petitioner. So far as with respect to Sri Hoti Lal (the respondent no. 5) is concerned, it is stated that there were only two adverse entries awarded to Sri Hoti Lal and with respect to Sri Tulsi Ram (the respondent no. 6), it is stated in paragraph 11 of the counter affidavit that his service record was unblemished. 17. In the rejoinder affidavit, the petitioner has nowhere stated that to Sri Krishna Prasad, Hoti Lal and Tulsi Ram, more adverse entries and punishment were awarded, than the petitioner. 18. So far as the petitioner's case is concerned, 12 adverse/censure entries were awarded to him of which details have been given in paragraph 4 of the counter affidavit, which read as under :- 1. Adverse entry in the year 1985-86. 2. Adverse entry in the year 1986-87. 3. His integrity and two annual increments were withheld with censure (Bhartsna) entry on 6.7.1992. 4. His three annual increments were permanently withheld a punishment of censure (Bhartsna) entry on 16.1.1993. 5. He was given punishment of censure (Bhartsna) entry on 20.7.1993. 6. He was awarded adverse entry for the year 1996-97. 7. He was given punishment of censure entry on 8.7.2004. 8. He was awarded punishment of censure entry on 28.7.2004. 9. He was awarded punishment of censure entry on 28.2.2005. 10. He was given adverse entry for 2004-05. 11. He was given adverse entry on 13.9.2006. 12. He was awarded a punishment of censure entry on 27.11.2007. 19. 7. He was given punishment of censure entry on 8.7.2004. 8. He was awarded punishment of censure entry on 28.7.2004. 9. He was awarded punishment of censure entry on 28.2.2005. 10. He was given adverse entry for 2004-05. 11. He was given adverse entry on 13.9.2006. 12. He was awarded a punishment of censure entry on 27.11.2007. 19. The reply of paragraph 4 of the counter affidavit has been given in paragraph 4 of the rejoinder affidavit. From the perusal of which, we find that there is no specific denial with regard to various entries awarded to the petitioner. 20. Learned counsel for the petitioner vehemently contended that in view of the judgment of the Apex Court in the case of Union of India and Diploma Engineers Sangh (supra), the departmental promotion committee ought to have disclosed the criteria for holding a person unfit and non-disclosure of the criteria renders the decision arbitrary. This kind of averments have been made in paragraph 27 of the writ petition. Although we find there is no denial in the counter affidavit of the State by stating that the criteria was disclosed but considering the criteria as has been mentioned in Rule 4 of the Uttar Pradesh Government Servants Criterion For Recruitment By Promotion Rules, 1994, promotion has to be made on the basis of seniority subject to the rejection of the unfit as against the petitioner, number of adverse/censure entries have been awarded in various years, in our view, even if the criteria was not disclosed, the promotion of respondents no. 4, 5 and 6 in comparison to the petitioner cannot be faulted with as against the respondent, there were only two adverse entries whereas there were 12 adverse/censure entries awarded to the petitioner and with respect to respondent no. 6, his service record was found to be unblemished. The judgment relied by learned counsel for the petitioner with respect to non-disclosure of criteria would not be fatal under the facts and circumstances of this case. So far as the case of the petitioner is concerned, had there been no adverse/censure entry against the petitioner or equal to the respondents no. 4, 5 and 6, in that eventuality, non-disclosure of the criteria would have prejudiced the case of the petitioner. 21. So far as the case of the petitioner is concerned, had there been no adverse/censure entry against the petitioner or equal to the respondents no. 4, 5 and 6, in that eventuality, non-disclosure of the criteria would have prejudiced the case of the petitioner. 21. Learned counsel for the petitioner has further contended that in respect to the general category candidates, whose record have been brought by the petitioner in the rejoinder affidavit, number of persons have been promoted on the post of Deputy Excise Commissioner, whose service record were inferior to the petitioner, in this regard we only observe that the petitioner's case was considered under the scheduled caste category and the persons, who were promoted, having better service record than the petitioner, therefore we do not find any illegality in the promotion of respondents no. 4, 5 and 6. 22. In view of foregoing discussions,we do not find any merit in the writ petition. The writ petition fails and is hereby dismissed.