Dhanpal Singh vs State of U.P.and Another

Devi Prsad Singh, J.—Heard learned counsel for the parties.

Petitioner is working on the post of Scientific Assistant in the Irrigation Department. According the petitioner''s counsel junior persons of the petitioner''s cadre were promoted on the post of Research Supervisor in January 1973 but petitioner''s case was not considered. However, petitioner was promoted on the post of Research Supervisor on 23.1.1993. Thereafter, petitioner has submitted a representation to the competent authority claiming promotion with retrospective effect i.e. w.e.f. the date when juniors to the petitioner were promoted. Petitioner had claimed for notional promotion on the said post of Research Supervisor from the date when the juniors were promoted. Petitioner''s representation was rejected by the impugned order dated 3rd September 1990 filed as Annexure No.3 to the Writ Petition on the ground that notional promotion may be given only to those employees who had already retired from service in view of Government Order dated 25.6.1984. Accordingly the petitioner''s case was rejected by the impugned order. Learned counsel for the petitioner submits that according to G.O. dated 25.6.1984 filed as Annexure2 to the writ petition an employee can be given promotion from the date when juniors were promoted and it does not create bar to provide notional promotion. Petitioner''s counsel further submits that the provision contained in Government Order dated 25.6.2004 though speaks as a special reference for the retired employees or the employees who expired, for the purpose of grant of notional promotion but it does not exclude the serving employees. Para 2 of the G.O. dated 25.6.1984 for convenience is reproduced as under:

At the face of record the Government Order does not exclude the serving employee. It only specify that even if employee dies or retired shall be considered for placement in the seniority list. According to THE NEW LEXICON WEBSTER''S DICTIONARY OF THE ENGLISH LANGUAGE the words �notion'' and ''notional'' has been defined as under:

�notiona conception, idea, his notion of a good novel is not hers, a general concept, the notion of law, a theory or idea lacking precision or certainity, the notion is not fully worked out in his mind, an understanding, she had no notion what he meant, a whim or fancy, his head was full of strange notions, inexpensive small useful articles (hairpins, needles, thread, combs etc.) sold in a store�

�notionalbelonging to the realm of ideas, not of experience, (of things) existing only in the mind.�

The word notional in other dictionaries (as comes out from internet) has been defined as under:

NOTIONAL

Conceptional, ideational, fanciful, speculative, fanciful, imaginary, imagined.

Being or of the nature of a notion or concept

Indulging in or influenced by fancy

Not based on fact or investigation

Not based on fact; dubious

Having descriptive value as distinguished from syntactic category

In view of above, for granting of notional promotion it is not necessary that the person concerned has actually worked on the said post firstly, he may be directed to discharge duty on the said post and only at later stage or he may be given notional promotion in accordance to rule. Only thing is necessary for grant of notional promotion is that at the relevant date and time the person concerned should have right to get the benefit which he had claimed at later stage.

In the present case petitioner had claimed for promotion on the post of Research Supervisor from the date when juniors were promoted. Accordingly, petitioner can be given promotion notionally from the date when juniors were promoted in case, he was qualified at the relevant time in accordance to rules.

Learned counsel for the petitioner has relied upon the judgment reported in AIR 1993 SC 1740, State of U.P. and others v. G.P. Swami and submits that even serving employee can be given notional promotion in case he has been superseded by juniors for some unstable reasons. In case petitioner was otherwise eligible for the post of Research Supervisor w.e.f. 1973 and juniors were promoted then the petitioner was entitled to be considered for promotion from the date when juniors were promoted. Petitioner''s claim for promotion on the post of Research Supervisor can not be rejected under the garb of Government Order dated 26.6.1984 merely by saying that notional promotion can not be granted. Moreover petitioner''s counsel submits that petitioner had retired from service on 31 July 1998. The impugned order does not disclose any reason except that the petitioner could not have been given notional promotion on account of fact that he was a serving employee. The reason given in the impugned order is not tenable under law and seems to be an act of nonapplication of mind. It was bounded duty of opposite parties to consider the case of petitioner on merit and in accordance to rules, in case juniors were promoted ignoring the petitioner''s right for promotion. Right to be considered for promotion is a fundamental right guaranteed under Article 14 and 21 of the Constitution of India as settled by Apex Court.

Moreover, the Government Order dated 25.6.1984 seems to be a clarificatory order. It categorically provides that the names of all those persons should be included in eligibility list who would have been eligible at the relevant time in case the selection would have been held in accordance to rules at due time. Accordingly, it provides that the names of retired and dead persons shall be included for the purpose of notional promotion as those persons can not held to be at fault on account of selection held after inordinate delay. The Government Order dated 25.6.1984 affirm the right of government employees to be considered for promotion on the basis of their senioritycumfitness in case they fall within the field of eligibility at a particular time or at the time when a selection is being held.

In view of above, the impugned order does not survive. A writ in the nature of certiorari is issued, quashing the impugned order dated 3rd September 1990 as contained in Annexure3 to the writ petition with all consequential benefits. Opposite parties are directed to reconsider the petitioner''s case in accordance to rules for promotion on the post of Research Supervisor from the date when juniors were promoted and in case the petitioner is found fit for promotion from the retrospective effect the opposite parties shall grant notional promotion for the purpose of pensionary benefits. The opposite parties shall do necessary exercise in this respect expeditiously and preferably within a period of three months from the date of receipt of certified copy of this order.

Writ petition is allowed accordingly. No order as to costs.

(Petition allowed)