Nathuni Sharma vs State of U.P.

Palok Basu, J.—The petitioner Nathuni Sharma prays through this writ petition under Article 226 of the Constitution of India that:

(i) Issue a writ, order or direction in the nature of certiorari calling the records and quashing the impugned orders dated 131995, 1011995 and 29121994 (AnnexuresIV and V), order dated 14th September, 1995 (AnnexureIX) and the censure entry in service record of the petitioner as per order dated 29995 (AnnexureX) respectively passed by the respondents.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the petitioner as having been duly promoted/appointed on the next higher post of Assistant Engineer from the date when the immediate Junior to the petitioner was promoted alongwith all consequential benefits including further promotions to all next higher post and the respondent may be also commended to refund forthwith the entire due arrears/amounts with interest.

(iii) Issue any other suitable writ, order or direction, which this Hon''ble Court may deem fit and proper in the circumstances of the case.

(iv) Award costs to this petition to the petitioner.

When the writ petition was filed before a learned Single Judge Standing Counsel was granted two months to file counter affidavit but by the interim order dated 12196 it was permitted that the petitioner''s representation Annexure6 shall be decided within one month. The said representation has been decided by the respondent''s order dated 3031996 a copy of which order has been filed as Annexure9 through the amendment application which makes an additional prayer that the order dated 30396 (Annexure9) may also be quashed. No counteraffidavit has been filed in the writ petition and during the course of hearing opportunity was granted repeatedly to the State but neither any reply to the writ petition nor to the amendment application is forthcoming. As prayed by the learned Counsel for the parties the writ petition was consequently heard on merits and the judgment was reserved.

In short the controversy raised through this writ petition is that as if the petitioner is entitled to the promotion post but the respondents have not considered the petitioner but have promoted juniors to the petitioner. The petitioner''s claim is, which is not disputed, that he was appointed as Junior Engineer in Rural Engineering Services by the State of U.P. on 1941973, was confirmed by an order dated 631982 on the said post and on 491991 selection grade has been awarded to him with effect from 111984. Yet, the petitioner was maintained at the level of Junior Engineers but some, who were junior to him in the grade of Junior Engineer, were promoted as Assistant Engineers. It has been further averred that by an order dated 871993 the petitioner has been awarded gazetted post and, therefore, the petitioner is entitled to the promotion post with effect from the date on which the juniors to him have been promoted.

It may be pointed out that this is the third occasion that the petitioner has to come up to this Court. The first one was when the petitioner filed Writ Petition No. 18096/94, which was disposed of on 2141994 by a Division Bench of this Court directing that the petitioner''s representation dated 2081993, be decided within three months. Second time the petitioner came through Contempt Petition No. 1788/94 because it was alleged that the respondents were not deciding the petitioner''s representation. Notice was issued on the said contempt application but since the respondents decided the representation in the meantime by order dated 131995; the said contempt petition was dismissed on 2141994. Thereafter the petitioner moved a detailed representation which has now been decided by the order dated 3031996 made a part of the record through the amendment application.

In view of what has been stated above, the amendment application is allowed and the relief and the two paragraphs shall be deemed to have been incorporated in the original memorandum of the writ petition.

It was vehemently argued by Shri Pramod Kumar Sinha, learned Counsel for the petitioner that the rejection of the representation by the impugned order dated 3031996 is wholly arbitrary and therefore, it is a fit case where this Court under Article 226 of the Constitution of India would issue necessary directions. Reliance has been placed on the decision of the Hon''ble Supreme Court U.P.S.E.B. v. Kharak Singh, 1990 Supreme Court Case (L&S) 597 and D.D.A. v. H.C. Khurana, AIR 1993 Supreme Court 1488. Reliance has also been placed on a Division Bench decision of this Court in J.P. Srivastava v. State of U.P., 1996 (2) E.S.C. 568.

A close scrutiny of the order dated 3031996 indicates that:

(1) In 197576 some dereliction in duty was noted when the petitioner was posted in Barabanki and censure entry was given on 2161975. He was held responsible for causing loss to the Government and therefore a sum of Rs. 2335 was directed to be recovered from the petitioner. This order persists. While posted in Banda some dereliction in duty was noticed but subsequently it was found that the petitioner was not responsible for any loss not default and therefore he was reinstated with full wages. It is said that these two matters were considered at the time the Departmental Promotion Committee (D.P.C.) to evaluate the chances of the petitioner for the promotion post.

(2) In the year 198283 adverse entries was awarded against which the petitioner made a representation while deciding which the said entry of 198283 was criticised.

(3) In 1994 guidelines were indicated for promotion. By an order dated 6101990 the Executive Engineer, Varanasi had stopped the petitioner''s efficiency bar (E.B.). However, it is admitted in this paragraph that selection grade was awarded to the petitioner w.e.f. 111984 and what is pleaded in this paragraph is that for the purposes of crossing E.B. or awarding selection grade normally entries are taken into account but that principle will not apply with regard to determining the seniority of the petitioner or his claim to the promotion post.

(4) Since the petitioner was awarded an adverse entry in 197576 and the aforesaid sum of Rs. 2, 335 was directed to be recovered from the petitioner that order stands. Over and above it was vide order dated 22111990, that the petitioner was found to have committed some default regarding the construction of a primary school in Tuziamau, Jaunpur for which a sum of Rs. 873/ was directed to be realised from the petitioner.

(5) All the aforesaid facts were considered by the D.P.C. in its meeting dated 2821995 and on the basis of the guidelines then existing, it was found that the petitioner was not entitled to promotion.

(6) The petitioner''s case may be considered for promotion alongwith other candidates when general promotions are going to be taken up. The petitioner''s name stands at Serial No. 3 in order of seniority. The petitioner''s case shall be considered at the appropriate time.

This is how the aforesaid representation of the petitioner stands finally disposed of by the impugned order dated 3031996.

There is no doubt in the mind of the Court that even though there may have been one censure entry and one order directing some deduction, the subsequent work and conduct of the petitioner earned for him not only crossing of efficiency bar but also selection grade in as such as gazetted post was made available to the petitioner in due course of time.

In view of the aforesaid discussion, it is right time that the petitioner''s case for promotion is adjudicated independently by the D.P.C. on the basis of the work and conduct, which he has exhibited because enough water has flown since the aforesaid adverse censure entry was awarded to the petitioner.

Before concluding the matter and recording the operative portion it has to be mentioned here that the charm of a Government service lies in getting timely promotions. While it is true that the employee does not have any fundamental right to promotion but he does have a statutory right to be considered for the promotion. It is of paramount importance, therefore, that the respondents who are employers consider the matter of petitioner''s promotion within a reasonable period of time. Unnecessary delay in holding the meeting of the D.P.C. frustrates the Government servants. There may not be any legal much less a moral basis for respondents not to hold meeting of the D.P.C. for years together. It has rightly been pointed out on behalf of the petitioner that since there is no fixed time for meeting of the D.P.C the persons who may be entitled to the promotion lose the promotional benefits for an indefinite period. Article 16 of the Constitution of India provides equal opportunity in the matter of employment under the Government. This provision should and must ensure timely holding of the meeting of the D.P.C. so that Government employees such as the petitioner do not have to wait indefinitely for the promotional post which, in the event of the D.P.C. deciding favourably, they shall be entitled to. The legitimate expectation of a Government employee to seek promotion in time is as much a part of his statutory rights as the fundamental right to have equal opportunity in the employment itself. A time bound direction, therefore, has to be issued to the respondents to hold the meeting of the D.P.C. for considering whether the petitioner should get promotion or not.

The writ petition consequently succeeds in part. The respondents shall consider the case of the petitioner in accordance with the rules keeping in view the observations made above in the next meeting of the D.P.C. which shall be held soon preferably within three months from the date of production of a certified copy of this order.

Parties will bear theii costs. Copy of this judgment shall be furnished to the learned Counsel for the parties on payment of usual charges within a week.