U.P.Rajkiya Nirman Nigam Limited and Another vs Shri Kamla Kant Verma and Another

Heard learned counsel for the petitioners Sri Shishir Jain and Sri Gyanendra Singh for the respondent No.1 and learned Standing Counsel for the respondent No.2.

This petition by U.P. Rajkiya Nirman Nigam Limited through its Managing Director challenges the order passed by the State Public Services Tribunal dated 2.11.2006 allowing the claim petition preferred by the private respondent holding that he was entitled for promotion on the post of Resident Engineer (Civil) with all consequential benefits with effect from the date similarly situated persons have been promoted as Resident Engineer.

Sri Shishir Jain assailing the aforesaid order of the Tribunal submitted that the respondent was since already considered for promotion and was not found fit, therefore, no such direction could have been issued and in any case even if the Tribunal was of the view that the respondent deserves to be considered afresh only a direction for consideration for promotion could have been given and not the promotion itself.

On merits of the claim, he submits that criteria for promotion for the post of Resident Engineer was seniority subject to rejection of unfit and for coming within the selected category one had to obtain 50% marks whereas the respondent could obtain only 40% marks, therefore, he could not have been categorized as person suitable for promotion. Learned Counsel clarified that the marks were awarded to the annual Character Roll entries in the service record of the candidates as per the category of the entry viz. excellent/outstanding, very good, good and average. Though in the counter affidavit, it is not stated as to how many marks were awarded for a particular category of entry but Sri Shishir Jain stated that ten marks were awarded for excellent/outstanding, eight marks for very good, six marks for good and four marks for average entry.

The criteria for awarding marks on the basis of the Annual Character Roll Entries as aforesaid is the criteria where the selection is to be made for the higher post strictly on ''merit'' and not where ''seniority subject to rejection of unfit'' is the criteria. By adopting this procedure, the petitioners in fact acted against the Rule and norms, which required the promotion on the post of Resident Engineer being made on the criteria of seniority subject to rejection of unfit. This, thus, cannot be a valid ground for not promoting the respondent.

Ordinarily, the Tribunal or the Court are reluctant in passing the order of promotion and in case selection is not properly considered or person has been wrongly superseded, a direction is issued for consideration of his promotion but in the instant case, it is clear that there was no adverse material against the respondent in his entire service record and one adverse entry of the year 198687 was expunged by the order of the Tribunal in Claim Petition No.484 (F)/IV/1989 vide order dated 24.3.1994. Before the Tribunal, no adverse material can be placed so as to hold the respondent unfit for being promoted. The Tribunal has taken into consideration the entire service record of the respondent and it is the admitted case of the petitioners that there was nothing adverse in the service record of the respondent.

The plea that the respondent could not secure 50% marks, which is the minimum prescribed marks and could secure only 40% marks was in fact never raised before the Tribunal. It was neither mentioned in the written statement nor it was orally argued nor pressed. That being so, the aforesaid plea cannot be allowed to be taken in the first time in writ petition where the Court is looking into the validity of the order passed by the Tribunal on the basis of the material, on which, the Tribunal has passed the order.

However, the aforesaid plea even otherwise is not available as it will make the entire selection bad for the reasons given herein before viz. the criteria adopted by the petitioners for selection was in fact the criteria of merit instead of seniority subject to rejection of unfit. We, however, clarify that the observations so made will bear no affect on the promotions already made.

In view of the fact that the respondent was entitled for promotion on the post of Resident Engineer as there was no adverse material in his service record and the criteria for selection was seniority subject to rejection of unfit and the persons junior to the respondent were promoted, no prejudice could have been caused to the petitioners if the Tribunal had directed to promote the respondent on the post of Resident Engineer from the date when juniors were promoted on the said post.

For the aforesaid reasons, we do not find any force in the writ petition, which is accordingly dismissed. The benefit of the order passed by the Tribunal, if not already given, shall be extended forthwith to the respondent.

(Petition dismissed)