Allahabad High Court
Pramod Kumar Tiwari vs State Of U.P. Thru Prin.Secy. Lok Nirman ... 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. - 12186 of 2019 Petitioner :- Pramod Kumar Tiwari Respondent :- State Of U.P. Thru Prin.Secy. Lok Nirman Vibhag Lko. & Ors. Counsel for Petitioner :- Anand Mani Tripathi Counsel for Respondent :- C.S.C.,Ashok Shukla Hon'ble Rajesh Singh Chauhan,J.
Heard learned counsel for the parties.
By means of this petition, the petitioner has prayed the following relief:-
"i) to issue a writ order or direction in the nature of CERTIORARI thereby quashing the order, if any, passed by opposite parties with respect to denial the promotion of petitioner from the post of Junior Engineer (Electrical) to the post of Assistant Engineer (Electrical/ Mechanical) after summoning the originals from the opposite parties with respect to Departmental Promotion Committee held on 07.03.2019.
to issue a writ, order or direction in the nature of MANDAMUS thereby commanding/ directing the opposite parties to consider the case of the petitioner for promotion from the post of Junior Engineer (Electrical) to the post of Assistant Engineer (Electrical/ Mechanical) in view of Departmental Promotion Committee held on 07.03.2019."
On the first date of admission i.e. 29.4.2019 this Court passed the following order:-
"Heard Sri A.M. Tripathi, learned counsel for the petitioner.
Notices on behalf of opposite party Nos.1 and 2 have been accepted by the office of the learned Chief Standing Counsel, while notice on behalf of opposite party No.3 has been accepted by Sri Ashok Shukla, Advocate.
By means of this writ petition, the petitioner has assailed inaction of the opposite parties, whereby the candidature of the petitioner has not been considered for promotion on the post of Assistant Engineer.
The submission of learned counsel for the petitioner is that the petitioner was awarded one punishment on 17.02.2017 and another on 25.01.2018, which were stayed by this Court vide order dated 20.02.2018 passed in Writ Petition No.5270 (S/S) of 2018; Pramod Kumar Tiwari vs. State of U.P. & others.
Sri Tripathi has further submitted that there was one more punishment against the petitioner dated 27.11.2013, against which, the petitioner has filed a statutory appeal.
However, Sri Tripahi, learned counsel for the petitioner has submitted that when the D.P.C. was convened, the appeal of the petitioner against the punishment order dated 27.11.2013 was pending but after the meeting of D.P.C. the said appeal of the petitioner has been partly allowed.
The submission of learned counsel for the petitioner is that even if the appeal was pending, the minor punishment for the year 2013 may not create any hindrance in promotion of the petitioner, for which, the Departmental Promotion Committee (here-in-after referred to as the "D.P.C.") met in the year 2019 after six years. As per settled position, the minor punishment looses its efficacy after five years.
The learned Additional Chief Standing Counsel prays for and is granted a week's time to seek complete instructions in the matter.
List this petition on 07.05.2019 as fresh.
While obtaining instructions, the learned Additional Chief Standing Counsel shall seek specific instructions to the effect that since this Court has stayed punishment orders of the petitioner dated 17.02.2017 and 25.01.2018 and the other punishment order is of the year 2013 and the appeal was pending against the said punishment order at the time of consideration so as to why the candidature of the petitioner in the year 2017 has not been considered while making promotion on the post of Assistant Engineer."
Again on 7.5.2019, this Court has passed following order:-
"Heard learned counsel for the parties.
Sri Ashok Shukla, learned counsel for the U.P. Public Service Commission has submitted on the basis of instructions that at the time of D.P.C. there was some adverse material against the petitioner resultant thereof his candidature was, however, considered but he could not be found fit.
List this petition on 16th May, 2019 to enable the learned counsel for the opposite parties to produce the relevant record so as to establish that the candidature of the petitioner was considered but he could not be found fit on account of adverse material. Therefore, while producing the record, learned counsel for the opposite parties shall demonstrate as to what is that adverse material pursuant to which petitioner's promotion was not recommended."
In compliance of the aforesaid orders, Sri Ashok Shukla, learned counsel for the U.P. Public Service Commission has apprised the Court that when the DPC had met on 7.3.2019, candidature of the petitioner was not considered for the reason that one punishment order dated 27.11.2013 was pending.
Sri Tripathi, learned counsel for the petitioner has drawn attention of this Court towards Rule 5 of the U.P. Government Servants (Disposal of Representation against Adverse Annual Confidential Reports & Allied Matter) Rules, 1995, which provides that if any punishment order is challenged through representation or appeal, till disposal of appeal/ representation such punishment may not be treated adverse against an employee. Sri Tripathi has further submitted that even otherwise the punishment order is dated 27.11.2013 and the DPC had met on 7.3.2019 i.e. after lapse of five years' period inasmuch as after a period of five years, the effect of minor punishment looses its efficacy, therefore, in that case, candidature of the petitioner may not be ignored.
Dr. Udai Veer Singh, learned Addl. Chief Standing Counsel has submitted that since a major punishment order i.e. withholding of two increments permanently has been stayed by this Court vide order dated 20.2.2018 in Writ Petition No.5270 (S/S) of 2018, therefore, if the said writ petition is dismissed, the punishment order would be effective from the date when it was passed.
On that submission, Sri Tripathi has produced a copy of the judgment and order dated 6.7.2018 passed by the Division Bench of this Court in Writ Petition No.16616 (S/B) of 2018 wherein this Court has held that effect of punishment order may not be read while considering the candidature of the employee at the time of his promotion if that order has been stayed by this court and at the most, consideration for promotion of the employee to the next higher post would be subject to the final outcome of that writ petition, which is pending.
Having heard learned counsel for the parties and perusing the material available on record and also the judgment of this Court passed in Writ Petition No.16616 (S/B) of 2018 (supra), I am of the considered view that the candidature of the petitioner should be considered for promotion on the post of Assistant Engineer (Electrical/ Mechanical) and if the petitioner is promoted on the next higher post, it may be indicated in his promotion order that his promotion shall be subject to the final outcome of Writ Petition No.5270 (S/S) of 2018, which is pending before this Court and undertaking to that effect may be obtained from the petitioner that he shall abide by the outcome of the writ petition, which is pending.
Accordingly, a writ in the nature of mandamus is issued commanding the opposite parties to consider the case of the petitioner for promotion from the post of Junior Engineer (Electrical) to the post of Assistant Engineer (Electrical/ Mechanical) with expedition, preferably within a period of four weeks from the date of production of certified copy of the order of this Court and in the promotion order, it may categorically be indicated that such promotion of the petitioner would be subject to the final outcome of Writ Petition No.5270 (S/S) of 2018 and a specific undertaking to that effect may be taken from the petitioner.
Accordingly, the writ petition is allowed.
No order as to costs.
Order Date :- 22.7.2019 RBS/-
[Rajesh Singh Chauhan,J.]