Allahabad High Court
Suresh Pandey vs State Of U.P. Thru Prin.Secy. ... on 22 July, 2019
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 23 Case :- SERVICE SINGLE No. - 10546 of 2019 Petitioner :- Suresh Pandey Respondent :- State Of U.P. Thru Prin.Secy. Irrigation & Water Lucknow Counsel for Petitioner :- Shireesh Kumar Counsel for Respondent :- C.S.C. Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Shireesh Kumar, learned counsel for the petitioner and Dr. Udai Veer Singh, learned Additional Chief Standing Counsel for the State-respondents.
By means of this writ petition, the petitioner has prayed for the following reliefs:-
(i) issue a writ, order or direction in the nature of certiorari quashing the order dated 14.03.2018, as contained in Annexure No.8 to this writ petition.
(ii) issue a writ, order or direction in the nature of mandamus commanding the opposite party to forthwith consider the candidature of the petitioner for promotion to the post of Superintending Engineer w.e.f. 21.02.2014 and allow him promotion to the post of Superintending Engineer (Mechanical) in the department of irrigation w.e.f. 21.02.2014 with all consequential service benefits."
On the first date of admission i.e. 15.04.2019, this Court has passed the following order:-
"Heard Sri Shireesh Kumar, learned counsel for the petitioner.
Notice on behalf of opposite party has been accepted by the office of the learned Chief Standing Counsel.
By means of this writ petition, the petitioner has assailed the order dated 14.03.2018, passed by the Principal Secretary, Department of Irrigation and Water Resources, Government of U.P., Lucknow, which is contained as Annexure No.8 to the writ petition, whereby the petitioner has been denied to be promoted on the post of Superintending Engineer w.e.f. 21.02.2014 indicating that since his sealed cover was opened and it was found that he was not eligible to be promoted on the post of Superintending Engineer w.e.f. 21.02.2014.
Learned counsel for the petitioner has submitted that on 21.02.2014 the juniors to the petitioner have been promoted on the post of Superintending Engineer but the candidature of the petitioner was not considered for no rhyme or reason. Therefore, the petitioner filed a claim petition before the learned State Public Services Tribunal, which was allowed vide judgment and order dated 19.10.2015, which is contained as Annexure No.6 to the writ petition, whereby the learned Tribunal was pleased to quash the order dated 01.10.2014, whereby the opposite parties were directed to allow the promotion to the petitioner for the post of Superintending Engineer (Mechanical) with effect from 21.02.2014, the date when juniors to the petitioner were promoted.
Feeling aggrieved out of order dated 19.10.2015 passed by the learned Tribunal, the State of U.P. had filed the writ petition before this Court bearing Writ Petition No.17038 (S/B) of 2016; State of U.P. & others vs. Suresh Pandey & another and the said writ petition was finally disposed of by this Court granting liberty to the petitioner to challenge the recommendation of the Departmental Promotion Committee for which the recruitment year 2013-2014, if he so desires. Further, this Court did not interfere with the judgment and order dated 19.10.2015 passed by the learned Tribunal.
Learned counsel for the petitioner has further submitted that despite the specific order being passed in favour of the petitioner on 19.10.2015 and despite the fact that there was nothing adverse against the petitioner, the petitioner was again ignored for promotion with effect from 21.02.2014 when juniors to the petitioner were promoted and those juniors have now been promoted on the post of Chief Engineer along with petitioner. However, the petitioner was not given promotion on the post of Superintending Engineer with effect from 21.02.2014.
Therefore, by means of this writ petition, the petitioner has prayed that the petitioner be promoted on the post of Superintending Engineer with effect from 21.02.2014 and allow him to be promoted to the post of Superintending Engineer (Mechanical) with effect from 21.02.2014 with all consequential service benefits.
The matter requires consideration.
Let the counter affidavit be filed within a period of three weeks. Rejoinder affidavit, if any, may be filed within a week thereafter.
List this petition on 21.05.2019 as fresh.
On the said date, the opposite parties shall produce the relevant records in respect of the petitioner."
Pursuant to the order of this Court, the record is produced and perusal thereof reveals that juniors to the petitioner have been promoted on the post of Superintending Engineer on 21.02.2014 but since one inquiry was pending against the petitioner, therefore, sealed cover procedure was adopted against the petitioner. However, the inquiry was concluded and the petitioner was exonerated from the charges. Thereafter, the petitioner was promoted on the post of Superintending Engineer on 02.01.2015 but the case of the petitioner is that since the juniors to him have been promoted on the post of Superintending Engineer with effect from 21.02.2014, therefore, the petitioner should be treating Superintending Engineer with effect from 21.02.2014.
Dr. Udai Veer Singh, learned Additional Chief Standing Counsel has drawn attention of this Court towards Annexure No.9 to the writ petition, which is the judgment and order dated 27.03.2019 passed by the Division Bench of this Court in Service Bench No.17038 of 2016 filed by the State of U.P. challenging the order of the learned Tribunal dated 19.10.2015 passed in the case of the petitioner. Vide para-11 of the aforesaid judgment, the Division Bench of this Court has observed as under:-
"11. In view of the above, we do not find the respondent employee is entitled to the promotion with effect from 21.02.2014 when officials junior to him were given promotion till a challenge is successfully made to the recommendation of the Departmental Promotion Committee kept in the sealed cover."
However, Sri Shireesh Kumar, learned counsel for the petitioner has drawn attention of this Court towards para-14 of the aforesaid judgment, whereby the Division Bench of this Court has given liberty to the present petitioner to challenge the recommendation of the Departmental Promotion Committee and by means of this writ petition the petitioner has assailed the office memo dated 14.03.2018, i.e. recommendation of the Departmental Promotion Committee for the year 2013-14. Sri Shireesh Kumar has assailed the office order dated 14.03.2018 submitting that the impugned order reads that in the Departmental Promotion Committee the candidature of the petitioner was not found suitable, therefore, he was not promoted on the post of Superintending Engineer on 21.02.2014, whereas the record reveals that at that point of time the issue of the petitioner kept under sealed cover, therefore, there was no question for consideration of his candidature.
Having heard learned counsel for the parties and perusing the material available on record as well as the record so produced before this Court, the submission of learned counsel for the petitioner appears to be bonafide and genuine.
Admittedly, the petitioner has been exonerated from the charges for which his issue was kept under sealed cover, therefore, he is legally entitled for the benefit of promotion with effect from the date when his juniors were promoted on the post of Superintending Engineer i.e. dated 21.02.2014. It appears that the impugned office memo dated 14.03.2018 has been passed without verifying the relevant facts as to whether the candidature of the petitioner was rejected at that point of time when the candidature of his juniors were considered for promotion or his candidature was not considered for the reason that the issue of the petitioner was kept under sealed cover. Therefore, it appears that the office memo dated 14.03.2018 has been passed without application of mind to that extent.
The Hon'ble Apex Court in re: R.K. Singh vs .State of U.P. & others reported in 1991 Supp (2) SCC 126 and in the case of Baij Nath Pandey vs. State of U.P. & others reported in [(2000) 3 UPLBEC 2224] has held that after expunction of adverse material the employee would be entitled for the benefits with effect from the date when it was due to him and admittedly in the present case the juniors to the petitioner have been promoted on the post of Superintending Engineer on 21.02.2014, therefore, the petitioner should also have been treated to be promoted with effect from 21.02.2014 while by means of order dated 14.03.2018 such benefit was denied to the petitioner.
In view of the aforesaid dictum of Hon'ble Apex Court in re: R.K. Singh (supra) and Baij Nath Pandey (supra), the order dated 14.03.2018, which is contained as Annexure No.8 to the writ petition, is unwarranted and uncalled for.
Accordingly, the order dated 14.03.2018, which is contained as Annexure No.8 to the writ petition, is hereby quashed.
A writ in the nature of mandamus is issued commanding the opposite parties to consider the candidature of the petitioner for promotion to the post of Superintending Engineer with effect from 21.02.2014 and allow him promotion to the post of Superintending Engineer (Mechanical) in the Department of Irrigation w.e.f. 21.02.2014 with all consequential service benefits with expedition preferably within a period of two months from the date of production of a certified copy of this order.
The writ petition is, therefore, allowed.
No order as to cost.
Order Date :- 22.7.2019 Suresh/ [Rajesh Singh Chauhan,J.]