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2017 DIGILAW 372 (UTT)

RAVINDRA KUMAR NARIYAL v. STATE OF UTTARAKHAND

2017-07-11

ALOK SINGH, K.M.JOSEPH

body2017
JUDGMENT K.M. Joseph, C.J. (Oral) Petitioner has approached this Court seeking the following prayers: “1. To issue a writ, order or direction in the nature of certiorari to quash the decision of Departmental Promotion Committee dated 08.03.2017 read with communication dated 21.03.2017 whereby the Petitioner has been declared “unfit” for promotion to the next higher post on the basis of “satisfactory” entries recorded in his annual confidential records for the assessment year of 2012-13 to 2014-15. 2. To issue a writ, order or direction in the nature of mandamus declaring the denial of promotion on the post Head of Department (Basic Science) to the petitioner on the basis of un-communicated A.C.R. entries, as arbitrary and violative of Law governing the field. 3. To issue a writ, order or direction in the nature of mandamus commanding the respondent No. 1 to 3 to hold review Departmental Promotion Committee and to consider the petitioner’s claim for promotion on the post of Head of Department (Basic Science) after ignoring the A.C.R. entries for the reporting year 2012-13, 2013-14 and 2014-15 which were not communicated till 02.09.2015. 4. to issue a writ, order or direction in the nature of mandamus commanding the respondent No. 1 to promote the petitioner to Head of Department (Basic Science) Grade from due date with all consequential benefits.” 2. Briefly put, the case of the petitioner is as follows: Petitioner joined services as a Lecturer in the year 2007 in the Government Polytechnic, Kotabag, District Nainital. The next higher post is the post of Head of Department. On 02.09.2015, the D.P.C. was held and the petitioner was declared unfit. The petitioner represented before respondent no. 2. He sought information under Right to Information Act and filed the writ petition challenging the denial of promotion. The said writ petition came to be disposed of as follows: “5. The case of the petitioner is that going by the counter affidavit itself, it is clear that the adverse remarks, which were taken into consideration for finding the petitioner not fit for promotion, had not been communicated to the petitioner. Therefore, he would submit that they cannot be looked into for the purpose of deciding the question whether the petitioner is eligible to be promoted or not. 6. Therefore, he would submit that they cannot be looked into for the purpose of deciding the question whether the petitioner is eligible to be promoted or not. 6. Learned counsel for the petitioner would submit that even after giving promotion to third respondent, there remained other vacancies unfilled on which petitioner can be given promotion. In fact, he drew our attention to the judgment rendered by this Court on 16.12.2015 in Writ Petition (S/B) No. 136 of 2014 and prayed that same course may be followed. 7. In such circumstances, we dispose of the writ petition as follows: The case of the petitioner will be considered against any vacancy, which remained unfilled in the cadre of Head of Department (Basic Science). The matter will be considered by a review DPC and it will consider the entries in accordance with law and in terms of the law laid down in the case of Dev Dutt v. Union of India and others reported in (2008) 8 SCC 725 . The review DPC will be held within a period of two months from the date of production of a copy of this judgment before the first respondent. We, however, make it clear that this judgment should not be understood as interfering with the promotion granted to the third respondent.” 3. Thereafter, the petitioner moved representations and finally he also represented against the adverse entries, which were communicated to him on 07.01.2017, by filing the representation dated 09.01.2017. The petitioner filed this representation under protest and the order was passed on 16.02.2017 and the DPC rejected the claim of the petitioner holding that the ACR entries of the petitioner for the years 2012-2013, 2013-2014 and 2014-2015 are unsatisfactory and, therefore, under the Rules the petitioner is unfit for promotion. It is this, the petitioner challenges by challenging the decision dated 08.03.2017 read with communication dated 21.03.2017, which is the communication of the decision dated 08.03.2017 by which the petitioner has been declared unfit. 4. We heard Mr. Sanjay Bhatt, learned counsel on behalf of the petitioner and Mr. Pradeep Joshi, learned Standing Counsel on behalf of the State of Uttarakhand/respondents. 5. 4. We heard Mr. Sanjay Bhatt, learned counsel on behalf of the petitioner and Mr. Pradeep Joshi, learned Standing Counsel on behalf of the State of Uttarakhand/respondents. 5. Learned counsel for the petitioner would submit that this Court had specifically directed consideration of the case of the petitioner in the light of the judgment passed in the case of Dev Dutt v. Union of India and others reported in (2008) 8 SCC 725 . It is true that the petitioner represented against the adverse entries and it has been rejected. It is also true that the said rejection was not challenged before this Court but the relevant question is that as on the relevant date, the DPC considered the case of the petitioner for promotion? 6. Originally, the adverse entries in question have not been communicated. 7. Learned counsel for the petitioner relies on the judgment of the Hon’ble Apex Court in the case of Abhijit Ghosh Dastidar vs. Union of India and others reported in (2009) 16 SCC 146 . Therein, the Hon’ble Apex Court, inter alia, held as follows: “8. Coming to the second aspect, that though the benchmark “very good” is required for being considered for promotion, admittedly the entry of “good” was not communicated to the appellant. The entry of “good” should have been communicated to him as he was having “very good” in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the abovereferred decision (Dev Dutt case, SCC p. 738, para 41) relied on by the appellant. Therefore, the entries “good” if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.” 8. Therefore, the entries “good” if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.” 8. Having heard the learned Standing Counsel also, we are of the view that the matter must be redone in the light of the fact, which is not in dispute that the entries were not communicated as on the date. The DPC must also take into consideration Paragraph-8 of the judgment in (2009) 16 SCC 146 , which we have adverted to. The impugned orders are set aside. The Review DPC will be held afresh taking into consideration the judgments of 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 in the case of Abhijit Ghosh Dastidar vs. Union of India and others reported in (2009) 16 SCC 146 . The exercise must be concluded within a period of two months from the date of receipt of a certified copy of the judgment. We have not issued notice to the third respondent as we have made it clear even in the earlier round that the consideration of the matter by the DPC will in no way affect the promotion already granted to the third respondent. The consideration of the case of the petitioner is limited to any other vacancy available. 9. The writ petition, accordingly, stands disposed of.