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2021 DIGILAW 664 (UTT)

State Of Uttarakhand v. Shrish Kumar

2021-12-13

NARAYAN SINGH DHANIK, RAGHVENDRA SINGH CHAUHAN

body2021
JUDGMENT Raghvendra Singh Chauhan, CJ. - The State is aggrieved by the order, dated 24.12.2020, passed by the Uttarakhand Public Services Tribunal, Bench at Nainital, whereby the learned Tribunal has not only allowed the Claim Petition filed by the respondent-claimant, but has also directed the State to sanction and grant pay scale of Rs. 15600-39100 with grade pay of Rs. 7600 from the date his juniors were granted, i.e. with effect from 31.03.2014, to the claimant. The said benefit had to be paid to the claimant within four months from the date of production of the certified copy of the said order. 2. Briefly, the facts of the case are that according to the claimant, he is a member of the State Civil Service (Executive Branch). On 11.02.2004, he was promoted on ad-hoc basis to the post of Deputy Collector. Subsequently, on 01.03.2007, he was regularly promoted to the said post. By order dated 26.04.2012, he was granted a senior pay-scale of Rs. 15600-39100 with Grade Pay of Rs. 6600. 3. On 29.07.2016, a Selection Committee held its meeting for recommending the scale/grade pay of Rs. 15600-39100 with Grade Pay of Rs. 7600. After considering the records of thirty-two officers, the Committee recommended the selection scale for thirty officers. The recommendation with regard to the claimant was kept in a sealed cover envelope inter alia on the ground that a disciplinary proceeding was pending against the claimant. On the basis of the recommendations made by the Committee, thirty officers were granted the selection scale of Rs. 15600-39100, with Grade Pay of Rs. 7600, vide order dated 02.08.2016. 4. According to the claimant, while he was in service, disciplinary proceedings were initiated against him on 13.07.2013. It is due to the pendency of the disciplinary proceeding that his case was kept in a sealed cover envelope. However, subsequently, by order dated 20.12.2016 the disciplinary proceeding was dropped without culminating into a punishment order. After the dropping of the disciplinary proceeding, the sealed cover envelope was opened on 12.12.2017 by the appointing authority. However, the claimant has been denied the benefit of the selection scale ostensibly on the ground that there was an adverse entry in the Annual Confidential Report relating to the year 2013-2014. After the dropping of the disciplinary proceeding, the sealed cover envelope was opened on 12.12.2017 by the appointing authority. However, the claimant has been denied the benefit of the selection scale ostensibly on the ground that there was an adverse entry in the Annual Confidential Report relating to the year 2013-2014. According to the department, although the said entry was communicated to the claimant on 02.08.2016 and 02.11.2016, the claimant never filed a representation against the said adverse entry. Therefore, due to the adverse entry, the selection grade could not be granted to the claimant. 5. Since the claimant was aggrieved by the said decision, he filed a Claim Petition before the learned Tribunal as aforementioned. The learned Tribunal allowed the Claim Petition in the abovementioned terms. Hence, this Writ Petition before this Court. 6. Mr. Anil Kumar Bisht, the learned Additional Chief Standing Counsel for the State of Uttarakhand-petitioners, submits that the adverse entries were, indeed, communicated to the claimant by letter dated 02.08.2016 and 02.11.2016. Despite the communication of the adverse entries, the claimant chose not to challenge the same by filing a representation before the concerned authority. Therefore on 12.12.2017, a valid order had been passed denying the claimant the benefit of the selection grade. Hence, the impugned order passed by the learned Tribunal deserves to be set aside by this Court. 7. The issue before this Court, as well as before the learned Tribunal, was whether the adverse entries, which were never communicated prior to the holding of the Selection Committee, could be read against the claimant, or not? 8. Admittedly, the Selection Committee met on 29.07.2016. Undoubtedly, even if the statement of the petitioners-State were to be accepted, the adverse entries were not communicated to the claimant till 02.08.2016 i.e. four days after the holding of the Selection Committee. 9. Moreover, for the second time, the said adverse entries were communicated on 02.11.2016, i.e. almost after four months of the Selection Committee taking a decision. Thus, on the date when the Selection Committee met, the adverse entries were not communicated to the claimant. In catena of cases, the Hon'ble Supreme Court has clearly opined that an adverse entry, which is not communication to an employee, the same cannot be read against the employee for the grant of selection grade. Therefore, the appointing authority was not justified in reading the said adverse entry against the claimant. In catena of cases, the Hon'ble Supreme Court has clearly opined that an adverse entry, which is not communication to an employee, the same cannot be read against the employee for the grant of selection grade. Therefore, the appointing authority was not justified in reading the said adverse entry against the claimant. 10. Moreover, even the departmental enquiry, which was initiated against the claimant was eventually dropped by the department. Therefore, even the pendency of the said departmental enquiry cannot be read against the claimant. Both these factors have been noticed by the learned Tribunal. Therefore, this Court does not find any illegality or perversity in the impugned order passed by the learned Tribunal. 11. For the reasons stated above, this Court does not find any merit in the present Writ Petition. It is, hereby, dismissed. 12. The petitioners are directed to comply with the order passed by the learned Tribunal within a period of two months from the date of the production of a certified copy of this order.