Santosh Kumar Shukia vs Board of Revenue,U.P.,Lucknow,through Its Secretary & Ors.

M. Katju, J.—This writ petition has been filed against the impugned order dated 10894, Annexure 11 to the writ petition by which petitioner has been denied promotion.

Heard learned counsel for the parties.

The petitioner was appointed as seasonal Collection Amin in May, 1974 and he has alleged in para 1 of the writ petition that on 231276 he was given an appointment in substantive capacity as collection amin. In para 2, it is stated that he was working continuously and honestly and he was confirmed on the post on 26286 vide Annexures 1 and 2 to the writ petition. The petitioner''s name finds place at serial No. 44 in the list of confirmed employees which is Annexure 2 to the petition. In Para 4, it is stated that the petitioner has been placed in supplementary seniority list at serial No. 5 vide Annexures 4 and 5 to the petition. In para 5, it is stated that the Board of Revenue sent a list of several collection amins including petitioner''s name who were found suitable for promotion as Naib Tahsildar. On the basis of the aforesaid seniority list, the District Magistrate issued the list containing the name of 10 collection amins including petitioner''s name at serial No. 4 in June, 1993 for promotion as Naib Tahsildar. It is stated that petitioner was not promoted and instead an order dated 3893 was passed promoting six persons juniors to the petitioner as Naib Tahsildar. Petitioner submitted representation to respondent Nos. 2 and 3 on 20893, vide Annexure 7 and he met respondent No. 3 and submitted another representation dated 21193. However, no heed was paid to the representation and instead another order dated 11394 was passed promoting other juniors as Naib Tahsildar. The petitioner sent three representations to the District Magistrate, Varanasi but no heed was paid to them. Ultimately by order dated 10894 the petitioner''s representation was rejected vide Annexure 11 to the writ petition. Hence this petition.

A perusal of the impugned order shows that the reason for denying promotion to the petitioner is that an adverse entry was given to him for the year 199091 and he had not given the requisite recovery despite several warnings. In para 18 of the writ petition it is stated that as regard the adverse entry for 199091 the petitioner was never informed about the same. It is stated that he was not given any warning and no complaint is pending against him.

In this case on several occasion time was granted to learned standing Counsel to file counter affidavit but no counter affidavit has been filed. On 22895 time was granted to standing counsel to file counter affidavit by 14995 and no more. In that order it is mentioned that no further time will be given to file counter affidavit. On 21995 again the case was listed on 29595 and against it was mentioned that no further opportunity shall be given for filing counter affidavit. On 26297 this Court observed that stop orders had been passed on several occasion but no counter affidavit was filed and therefore, the respondents are not entitled to get further time to file counteraffidavit. However, one more opportunity was given to standing counsel to file counter affidavit within three weeks and no more but yet no counter affidavit has been filed. In the circumstances I am assuming the allegations made in the writ petition to be correct and disposing of the petition finally. It was held by me in 1993 (2) UPLBEC 1049, Krishan Pal Sonkar v. State of U. P and another uncommunicated entry cannot be taken into account and this view has been upheld by a Division Bench in 1997 Education Service Cases 324. Hence the adverse entry for 199091 as well as the alleged warning should not have been taken into consideration. Hence, I quash the impugned order and direct respondents to consider the petitioner''s claim for promotion within two months of production of certified copy of order before the authority concerned ignoring the adverse entry for 199091 as well as the alleged warning.

Writ petition is allowed. No order as to costs.