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2024 DIGILAW 1805 (ALL)

Reena Srivastava v. State of U. P.

2024-08-02

RAJESH SINGH CHAUHAN

body2024
JUDGMENT : RAJESH SINGH CHAUHAN, J. 1. Heard Sri Ashutosh Srivastava, learned counsel for the petitioner and Sri Sudhir Kumar Singh, learned Standing Counsel for the State. 2. At the very outset, learned counsel for the petitioner has requested that he may be permitted to delete the name of opposite party No. 5 from the array of opposite parties. 3. Considering the aforesaid request, learned counsel for the petitioner is permitted to delete the name of opposite party No. 5 from array of the opposite parties, during the course of day. 4. By means of this writ petition, the petitioner has prayed for the following reliefs: “(i) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 01.12.2023 by which the right to claim of the petitioner for the promotion on the post of Administrative Officer has arbitrarily rejected by the opposite parties, contained as Annexure No. 1 to this writ petition. (ii) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to promote the petitioner on the post of Administrative Officer from the date which the junior to the petitioner has been promoted on the said post.” 5. Though, for the impugned order dated 01.12.2023 the counter affidavit may be called from he opposite parties but there is an error apparent on the impugned order dated 01.12.2023 itself. By perusing the letter dated 19.03.2024 (Annexure No. 8) whereby the information has been provided to the petitioner by the Public Information Officer, Tourism Department, U.P., Lucknow indicating her entries for the last five years as those entries have never been communicated to the petitioner on or before 19.03.2024 (supra), therefore, this writ petition is being decided, with the consent of learned counsel for the parties, at the admission stage. The perusal of the impugned order reveals that the petitioner, who is serving on the post of Head Assistant, could not be promoted on the post of Administrative Officer for the reason that her Annual Confidential Report in the Character Roll for the last five years are not Very Good or Outstanding, rather those entries are either Good or Satisfactory. 6. 6. After knowing the aforesaid impugned order dated 01.12.2023, the petitioner preferred a representation under Right to Information Act on 21.02.2024 and on such representation she has been provided her Annual Confidential Report for the last five years vide letter dated 19.03.2024 (supra) whereby she could know that her entry for the year 2017-2018 is satisfactory and her entries with effect from 2018-2019, 2019-2020, 2020-2021 and 2021-2022 are Good. 7. Therefore, this is a case where on the basis of un-communicated entries in the Annual Confidential Report she could not promoted on the next post of Administrative Officer. So the question before this Court is as to whether the promotion of an employee may be denied on the basis of un-communicated entries. The aforesaid question has been answered by the Apex Court in catena of cases and now the issue is not more res-integra. 8. At the very outset, I would consider the dictum of Apex Court rendered in the case in Dev Dutt vs. Union of India and others, (2008) 8 SCC 725 whereby the Apex Court has answered the aforesaid question categorically holding that on the basis of un-communicated entries in the Annual Confidential Report the promotion of an employee may not be denied. The relevant paras-9 & 41 are being reproduced herein-below: “9. In the present case the bench mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have 'very good' entry for the last five years. Thus in this situation the 'good' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a `good' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. 41. 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 military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). 41. 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 military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.” 9. The Apex Court in another case i.e. Rukshana Shaheen Khan vs. Union of India, AIR 2018 SC (Supp) 1252 has also held that un-communicated and adverse ACRs cannot be relied upon in the process. The relevant para-2 reads as under: “2. In view of the decision of this Court in Sukhdev Singh v. Union of India and others, (2013) 9 SCC 556 : AIR 2013 SC 2741 , there cannot be any dispute on this aspect. This Court has settled the law that uncommunicated and adverse ACRs cannot be relied upon in the process.” 10. In the recent judgment rendered in the case in R.K. Jibanlata Devi vs. High Court of Manipur through its Registrar General, AIR 2023 SC 1190 the similar view has been taken by the Apex Court. 11. Learned Standing Counsel has, however, tried to defend the order dated 01.12.2023 but in the light of letter dated 19.03.2024 (Annexure No. 8) whereby the petitioner has been communicated the entries of Annual Confidential Report for the last five years, he could not defend the impugned order. 12. Accordingly, the instant writ petition is allowed. 13. The impugned order dated 01.12.2023 (Annexure No. 1) is hereby set aside/ quashed. The opposite party No. 2 i.e. the Director General (Mahanideshak) Tourism Directorate, U.P., Lucknow is directed to ignore the uncommunicated entries and take a fresh decision for the petitioner, strictly in accordance with law, and before taking appropriate decision the petitioner shall be afforded an opportunity of hearing. 14. No order as to cost.