Mahendra Deo Narain Tiwari vs State of U.P. and Others

R.H. Zaidi, J.—By means of this petition, filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 6.12.1989 passed by the respondent No. 2, the Managing Director of U.P. Forest Corporation, Lucknow, rejecting the representation and claim of the petitioner for promotion to the post of Assistant Grade-II. Prayers for issuance of a writ, order or direction in the nature of mandamus commanding the respondents to promote the petitioner as Assistant Grade-II in U.P. Forest Corporation and grant seniority with all other consequential benefits with effect from the date the person junior to the petitioner was promoted to the said post have also been made.

The relevant facts of the case, giving rise to this petition, as unfolded in the writ petition, are that it was in the year 1977 that the petitioner was appointed as Assistant Grade-III in U.P. Forest Corporation. At the time of his appointment there existed no Service Regulations, or Rules. The service conditions of the ministerial staff of the Corporation used to be governed by the orders of the Managing Director issued from time to time. Under the said orders, the Assistants Grade-III who were graduates and have completed two years of service were entitled to be considered for promotion. The petitioner, who was a graduate and also completed two years of continuous service become entitled to be considered for promotion in the year 1979; but his claim was totally ignored and he was not considered for promotion. Again in the year 1981-82 promotions were made, but the case of the petitioner was not considered although persons junior to him were considered and promoted to the posts of Assistants Grade-II. In the year 1982-83 seniority list was prepared in which the name of the petitioner was shown at serial No. 2. Petitioner filed his representation praying for his promotion; but of no consequence. It is alleged that in the year 1985 U.P. Forest General Service Regulations were enforced with effect from 1.4.1985, which provided criteria for promotion as ten years continuous service and suitability for the post. It is stated that even on completion of ten years continuous service petitioner was not considered for promotion even though juniors to him were promoted. The petitioner filed several representations and reminders claiming promotion; but the same were not considered. He, therefore, filed Civil Misc. Writ Petition No. Nil of 1989, which was disposed of finally but this Court vide its order dated 18.1.1989 with the direction to the respondent No. 2, the Managing Director to dispose of the representation of the petitioner within time specified by the Court. The Managing Director ultimately by his order dated 6.12.89 rejected the claim of the petitioner for promotion holding that he was not found suitable for promotion. Thereafter the present petition was filed praying for the reliefs mentioned above.

On behalf of the respondents a counter affidavit has been filed in which it has been stated that prior to 1985 service conditions of Class III & IV employees of the Corporation were governed by the orders of the Managing Director, issued from time to time. Reference has been made to the order dated 19.11.77 which provided the criteria for promotion as graduate and two years satisfactory service, through a selection committee. It has been asserted that the case of the petitioner was considered whenever the promotions were made; but as he has earned bad entries in his character Roll, therefore, he was not found suitable, consequently he was not promoted till 1991; but when there was improvement in the working of the petitioner, he was promoted to the post of Assistant Grade-II on 16.2.1991. It was also stated that in the year 1985 the service regulations referred to above, were enforced in which the criteria for promotion was mentioned as suitability to the post. In brief it has been asserted that petitioner used to be considered but he was not found suitable for promotion as he has earned adverse remarks and the moment there was improvement in the working of the petitioner he was given promotion with effect from 16.2.1991.

Sri N.C. Rajvanshi, learned Counsel for the petitioner vehemently urged that the service record of the petitioner was unblemished, spotless and no adverse remarks was ever communicated to the petitioner till 1984, therefore, there was no justification for the respondents to rely upon the adverse entries alleged to have been awarded to the petitioner. It has been urged that unless the adverse entries are communicated they cannot be taken into consideration and the petitioner was fully entitled to be considered and promoted to the post of Assistant Grade-II w.e.f. 1980 or 1985 when juniors to him were promoted to next higher post. It was also urged that the order dated 6.12.1989, whereby representation of the petitioner was rejected was wholly arbitrary as the same did not contain any reason for rejection of the claim of the petitioner. In support of his submission learned Counsel for the petitioner referred to and relied upon the Supreme Court decisions in Gurdial Singh Fijji Vs. State of Punjab and Others, and M.S. Sharma v. State of Andhra Pradesh and Ors. 1982 (1) L.I.C. 619.

On the other hand, Sri V.K. Singh, learned Counsel appearing for the respondents submitted whenever the promotions were made from the post of Assistant Grade-III to the post of Assistant Grade-II, the-case of the petitioner" used to be considered, hut since he has earned adverse entries, he was not found suitable & fit for promotion and promotion was not given to him. He submitted that the Departmental Promotion Committee was entitled to look into the service record of the petitioner and to decide as to whether the petitioner was suitable for promotion or not. It was urged that it was in the year 1991 that there was improvement in the working of the petitioner, therefore, w.e.f. 16.2.1991 the petitioner was promoted to the post of Assistant Grade-II. It was asserted that respondent No. 2 did not commit any error of law or jurisdiction in rejecting the representation made by the petitioner.

I have considered the submissions made by learned Counsel for the parties and also perused the record.

Admittedly, prior to 1985 there existed no Service Rules. The service conditions of Class III and IV employees used to be governed by the orders issued by the Managing Director of the Corporation from time to time. The orders issued by the Managing Director of the Corporation, referred to above, provided the qualification & conditions for appointment and promotion of the employees of the Corporation including the Assistants Grade-III and Assistants Grade-II. For promotion to the post of Asstt. Grade-II from the post of Asstt. Grade-III, the basic educational qualification was graduation and 2 years continuous satisfactory service. The promotion was to be made by the Selection Committee consisting of responsible officers of the department.

It was in the year 1985 that U.P. Forest General Service Regulations, for short ''the Regulations'' were framed and enforced w.e.f. 1.4.1985 which provided the criteria for appointment and promotion of the employees of the Corporation including the Assistant Grade-III as under : (only relevant quoted)

"CHAPTER-III RECRUITMENT AND APPOINTMENT

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16........................................................

GROUP ''A'' POSTS

2.......................................................

GROUP ''B'' ''C'' & ''D'' POSTS

Appointment to all post under there groups shall be made in the following manner either (a) by direct recruitment, or (b) by promotion from amongst the eligible employees on the basis of seniority subject to the rejection of unfit, as per quota specified in Schedule ''C. In case of direct recruitment, such of the Corporation employees who are eligible in terms of qualification, age and experience may also compete for selection.

If at any time it is found that sufficient number of employees are not available for filling the quota by promotion, the Corporation may fill these posts also by direct recruitment or by deputation. There will thus be no rigidity about quota for direct recruitment or by promotion and there will not be any carryover to the subsequent years.

(I) GROUP ''B'' POSTS

(1)......................................................

(2) ......................................................

(3)......................................................

(4)......................................................

(5).......................................................

(II) GROUP ''C'' POSTS (a) Audit Wing

(6)......................................................

(b) Accounts Wing

(7)......................................................

(8)...;..................................................

(9) ......................................................

(c) Ministerial Wing

(10)......................................................

(11).......................................................

(12) Assistant Grade-II By promotion from suitable Asstt. Grade-III, (490-760) having at least 10 years experience as Asstt. Grade-III.

(13)Assistant Grade-III (i) Not less than 85% by direct recruitment. (360-550) (ii) Not more than 15% by promotion from Orderly, Dakia, Peon etc. of not less than 10 years service and who are High School passed & know typing and are not above 45 years, in age. Note:- After rendering 10 years meritorious service, suitable Asstt. Grade-III, may be promoted to Grade-II, irrespective of the availability of posts. (14)......................................................

(15).......................................................

(d) Statistical Wing

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(e) Field Wing

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(f) Marketing Wing

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(g) Others

(iii) GROUP ''D'' POSTS

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Subject to the provisions of Regulations 13 and 16 the Corporation may decide from time to time mode of selection for filling up various posts in the Corporation either by direct recruitment or by promotion from within its cadre or by deputation from Govt. departments. The selection committee consisting of not less than 3 persons, duly constituted by the Corporation, may draw up a panel of names of candidates for selection arranged in order of preference and furnish it to the Appointing Authority together with its recommendations, in the order of merit. Any panel prepared in this manner will remain alive for one year, the Appointing Authority may, without calling fresh applications, appoint the candidate/candidates in the order in which their names are arranged in the panel.

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23.............................,.

A categorywise gradation list of all the regular employees of the Corporation shall be mentioned for determining the in terse seniority of an employee within the category. The Managing Director may order that the gradation list for any particular category shall be prepared for he Corporation as a whole or separately for each of its Units. The decision of the Managing Director in this respect is as under :-

(i) Gradation list in respect of the following categories of employees under group ''C'' shall be prepared and updated for the Corporation as a whole in the Managing Director''s Office and circulated through the Regional Managers among the employees periodically.

1............................

2............................

3............................

4............................

Asstt. Grade-II (490-760)

SCHEDULE ''D'' PROCEDURE FOR RECRUITMENT (REGULATION 16)

(A) BY DIRECT RECRUITMENT

(B) BY PROMOTION

POST TO BE FILLED UNDER PROMOTION QUOTA-

Selection for promotion to Groups ''B'', ''C'' and ''D'' posts shall be made by a Departmental Selection Committee of not less than 3 Members to be constituted by the authorities as mentioned below:

The authority for Constitution of Selection Committee for promotion to

Group ''C'' posts.

Scale of Pay-

(i) 775-1360

(ii) 620-1100 } Managing Director

(iii) 515-865 }

(iv) 490-760 } General Manager.

(v) 360-550 }

It is evident from the aforesaid Regulations that on completion of 10 years continuous service an Asstt. Grade-III possessing Bachelor Degree was entitled to be considered for promotion to the post of Asstt. Grade-II. Petitioner was appointed in the year 1977, therefore, under the orders issued from time to time by the Managing Director of he Corporation, the petitioner was entitled to be considered for promotion after every 2 years and after enforcement of the Regulations on completion of 10 years continuous" service. The grievance of the petitioner is that he was never considered for promotion to the post of Asstt. Grade-III.

Since there was no sufficient material on record to find out as to whether petitioner was ever considered for promotion or not, it became necessary to peruse the service record of the petitioner. The record was also necessary to decide the other questions involved in the present case. This Court, therefore, vide order dated 31.3.1997 directed the learned Counsel appearing for the respondents to produce the complete service record of the petitioner, which was produced by him at the time of hearing of the petition.

Firstly, it will have to be seen as to whether the petitioner was ever considered for promotion to the post of Assistant Grade-II from the date of his appointment as Assistant Grade-III in the year 1977 and it will also have to be seen as to whether petitioner''s claim for promotion to the post of Assistant Grade-II if considered was rightly rejected or not.

In. the counter affidavit it has been asserted by the contesting respondents that petitioner''s case was considered as and when promotions were made by the Departmental Promotion Committee of the Corporation as the petitioner has earned adverse entries in his character roll, his claim used to be rejected. On the service records produced by the learned Counsel appearing for the respondents there was not an iota of evidence to show that the petitioner was ever considered for Promotion till 12.8.1985, although he was entitled to be considered under the orders of the Managing Director for promotion after every two years. Learned Counsel for the petitioner produced Photostat copy of a loose sheet containing minutes of the meeting of the Departmental Promotion Committee dated 2.8.1985. In the list of the Assistant Grade-III the name of the petitioner finds place at serial No. 1. It has been noted that petitioner had earned 3 good and 4 bad, out of total 7 entries awarded to him till aforesaid date. In the last column it has been noted that he was not recommended for promotion. The minutes of the aforesaid meeting has not been filed along with counter affidavit. It is also not part of the service records of the petitioner, therefore, no reliance could be placed upon the same. Further, there was no cogent & reliable evidence on the record to show that the alleged bad entries were ever communicated to the petitioner and that he was afforded an opportunity to file objection against the same. It is well settled in law that uncommunicated remarks or adverse entries cannot be taken into consideration by the competent authority/departmental promotion committee while considering the case of an employee for promotion. A reference in this regard may be made to the following decisions of the Apex Court :-

(i) Gurdial Singh Fijji Vs. State of Punjab and Others,

(ii) State of M.P. v. Bani Singh and Anr. 1990 (2) S.L.R. 798.

(iii) Union of India v. E.G. Nambudiri 1991 (2) S.L.R. 675.

(iv) U.P. Jal Nigam v. Syed Khadim Waris 1996 (1) S.L.R. 26.

(v) M.S. Sharma v. State of Andhra Pradesh 1982 Lab. I.C. 619 (A.P.).

Thus, from the above, it is apparent that firstly the case of the petitioner was not considered for promotion to the post of Asstt. Grade-II, on completion of every two years till Service Regulations were enforced and ever after Service Regulations were enforced petitioner''s case was not considered and he was not granted promotion till 16.2.1991. Existence of alleged adverse entries, in my opinion can not debar an employee for being considered for promotion even in the cases adverse remarks are communicated to him & the employee files his representation against the same. In case the Departmental Promotion Committee after going through the service record, including the explanation of the employee comes to the conclusion that the employee concerned was not entitled to be promoted, it could reject the case. But it has got no jurisdiction to ignore the case or claim of an employee totally for promotion or to reject his case. In the present case, the claim of the petitioner for promotion to the post of Assistant Grade-II was never considered till he was actually promoted in the year 1991 to the post of Assistant Grade-II and it is not disputed that employees juniors to the petitioner were given promotions which was violative to Articles 14 and 16 of the Constitution of India. In view of the said facts, the petitioner is entitled to the promotion to the post of Assistant Grade-II with effect from the date an employee junior to him was promoted to the said post. Admittedly, petitioner has already been promoted to the post of Assistant Grade-II with effect from 16.2.1991 and since then 10 years have not been completed, he is at present, thus, only entitled to the consequential benefits of "the promotion. The writ petition, therefore, deserves to be allowed in part.

The writ petition succeeds and is allowed in part. The respondents are directed to treat the petitioner as Assistant Grade-II with effect from the date an Assistant Grade-III junior to him was promoted. He will also be entitled to other consequential benefits. No order as to costs.