Allahabad High Court
Gaya Prasad Pandey vs State Of U.P. And 11 Others on 15 February, 2022
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 71 AFR Case :- WRIT - A No. - 2630 of 2020 Petitioner :- Gaya Prasad Pandey Respondent :- State Of U.P. And 11 Others Counsel for Petitioner :- Ajay Kumar Srivastava Counsel for Respondent :- C.S.C.,Awadhesh Kumar Saxena Hon'ble Ajit Kumar,J.
1. Heard Sri Samir Sharma, learned counsel for the petitioner, Sri Avijit Saxena, learned Advocate holding brief of Sri A.K.Saxena, learned counsel for the respondent.
2. By means of present writ petition filed under Article 226 of the Constitution, petitioner has challenged the order dated 16th July, 2019 whereby his representation regarding claim for promotion from class IV post to class III post of book clerk has come to be disposed of rejecting his claim.
3. Assailing the above order impugned in the present petition, learned Senior Advocate has argued that on the date of the meeting of the Departmental Promotion Committee which was 24th November, 2017, there was no adverse entry in the character roll of the present petitioner and so he was eligible to be considered for promotion.
4. In support of his above argument, learned Senior Advocate submits that prior to year 2016-17 whatever adverse entries were awarded to the petitioner that had stood expunged vide orders dated 12th January 2016 and 26th December, 2016 respectively, and in so far as adverse entry of the year 2016 -17 is concerned, he had already represented against the same before the competent authority on 17.05.2017 and since no decision was taken by the competent authority within the period prescribed for disposal of the representation of the employee, the said entry under the U.P.Government Servants(Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters) Rules, 1995 (hereinafter referred to as Rules, 1995), would loose its relevance and significance for the purposes of consideration of promotion under Rule 5 of the said Rues.
5. Learned counsel for the petitioner has taken the Court to the circular letter of the U.P. Transport Corporation , Lucknow dated 13th November, 1997, which records that Board of Directors of the Corporation in its 137th meeting dated 11.06.1996 had adopted the Rules, 1995. Thus argument is that once the rules have been made applicable to the employees of the U.P. Transport Corporation, representation made against the adverse entry was liable to be disposed of as per Rule 4 read with Rule, 5,6 and 7 of the aforesaid Rules.
6. It is submitted that Rule 5 provides that in the event representation against the adverse entry is not disposed of in accordance with law vide Rule 4, such report shall not be treated adverse for the purposes of promotion/crossing of efficiency bar/ or other service benefits to the concern employee.
7. Thus, submission of learned counsel for the petitioner is that adverse remarks / entries made in the year 2016-17 having been represented against and the said representation having not been disposed of in terms of Rule 4 of Rules, 1995, the claim for promotion of the petitioner could not have been ignored by the Departmental Promotion Committee while it considered the candidature of the employees for promotion from Class IV to Class III posts on 24.11.2017.
8. Mr. Sharma appearing for petitioner has also submitted that the order impugned has proceeded on the premise that 33 employees were in-excess of sanctioned posts and, therefore, consideration of petitioner's candidature would not be possible, which according to him, is absolutely misplaced and misconceived stand. He argues that seniority of the petitioner in the class IV cadre is not disputed and even in the year of promotion of 2017 persons junior to the petitioner have been promoted. He therefore, submits that had the petitioner's candidature been considered for promotion in time, he would have been placed above 33 marks of surplus employees in the book clerk's cadre.
9. Specific averments in support of the argument so above advanced, have been made in paragraph 21, 22, 23, 24, 25, 30, 31, 32, 34 and 39. The order expunging entries of the year 2014-15 and 2015-16 and again 2016-17 have been brought on record. Promotion orders giving promotion to the juniors have also been brought on record.
10. Learned counsel for the contesting respondent could not dispute the above submissions. Counter affidavit that has been filed does not contain any specific denial of what has been averred in paragraphs 21 and 22 of the writ petition with regard to the adverse entry and so far denial to paragraph 31 is concerned, he submits that 30 posts were held in-excess but the fact that 39 juniors to the petitioner have been promoted to the post of Clerk, has not been denied even while giving promotion to various class IV employees. One single tune that the respondents have been harping about is that there were adverse entries against he petitioner on relevant dates of consideration but what would the effect if entries have been expunged, on this point the counter affidavit is silent.
11. The fact that 151 candidates who were junior to the petitioner have been promoted is also not specifically denied. The averments made in paragraph 34 that petitioner would be placed above Umesh Chandra Pandey at serial number 101 and thus would be falling within the sanctioned strength, is also not denied. Respondents have also not denied the circular letter-cum-order dated 13th November, 1997 adopting Rules 1995
12. After going through various documents brought on record, pleadings raised by the respective parties in the present case, I find the only issue to be adjudicated is as to whether petitioner's candidature was liable to be considered on 24.11.2017 .
13. In order to appreciate the controversy, it would be proper to produce Rules 3, 4 and 5 of 1995 Rules. These provisions are quoted as under:
3. Definitions. - Unless there is anything repugnant in the subject or context, the expression-
(a) "appropriate authority" means a person who is empowered by the Government to act as reporting authority, reviewing authority or accepting authority, as the case may be;
(b) "Constitution" means the Constitution of India;
(c) "Government" means the State Government of Uttar Pradesh;
(d) "Government Servant" means a person working on a post under the rule making powers of the Governor under the proviso to Article 309 of Constitution other than a post under control of the High Court;
(e) "report" means annual confidential report regarding the work, conduct and integrity of a Government Servant for each year recorded by an appropriate authority, who has seen the performance of the Government servant for not less than a continuous period of three months;
(f) "Secretariat" means the Secretariat of the Government;
(g) "Year" means a period of twelve months commencing from the first day of April of a calendar year.
4. Communication of adverse report and procedure for disposal of representation. - (1) Where a report in respect of a Government Servant is adverse or critical, wholly or in part, hereinafter referred to as adverse report, the whole of the report shall be communicated in writing to the Government Servant concerned by the accepting authority or by an officer not below the rank of reporting authority nominated in this behalf by the accepting authority, within a period of 45 days from the date of recording the report and a certificate to this effect shall be recorded in the report. (2) A Government Servant may, within a period of 45 days from the date of communication of adverse report under sub-rule (1), represent in writing directly and also through proper channel to the authority one rank above the accepting authority, hereinafter referred to as the competent authority, and if there is no competent authority, to the accepting authority itself, against the adverse report so communicated: Provided that if the competent authority or the accepting authority, as the case may be, is satisfied that the Government Servant concerned had sufficient cause for not submitting the representation within the said period, he may allow a further period of 45 days for submission of such representation. (3) The competent authority or accepting authority as the case may be, shall, within a period not exceeding one week from the date of receipt of the representation under sub-rule (2), transmit the representation to the appropriate authority, who has recorded the adverse report, for his comments, who shall, within a period not exceeding 45 days from the date of receipt of the representation, furnish his comments to the competent authority or the accepting authority as the case may be : Provided that no such comments shall be required if the appropriate authority has ceased to be in, or has retired from, the service or is under suspension before sending his comments. (4) The competent authority or the accepting authority, as the case may be, shall, within a period of 120 days from the date of expiry of 45 days specified in sub-rule (3), consider the representation along with the comments of the appropriate authority, and if no comments have been received without waiting for the comments, and pass speaking orders-
(a) rejecting the representation; or
(b) expunging the adverse report wholly or partly as he considers proper.
(5) Where the competent authority due to any administrative reasons, is unable to dispose of the representation within the period specified in sub-rule (4), he shall report in this regard to his higher authority, who shall pass such orders as he considers proper for ensuring disposal of the representation within the specified period. (6) An order passed under sub-rule (4) shall be communicated in writing to the Government Servant concerned. (7) Where an order expunging the adverse report is passed under sub-rule (4), the competent authority or the accepting authority as the case may be shall omit the report so expunged. (8) The order passed under sub-rule (4) shall be final. (9) Where any matter for-
(i) communication of an adverse report;
(ii) representation against an adverse report;
(iii) transmission of representation to the appropriate authority for his comments;
(iv) comments of the appropriate authority; or
(v) disposal of representation against an adverse report; is pending on the date of the commencement of these rules, such matters shall be dealt with and disposed of within the period prescribed therefor under this rule.
Explanation. - In computing the period prescribed under this rule for any matters specified in this sub-rule the period already expired on the date of the commencement of these rules shall not be taken into account.
5. Report not to be treated adverse. - Except as provided in Rule 56 of the Uttar Pradesh Fundamental Rules contained in Financial Handbook Volume II, Parts II to IV. Where an adverse report is not communicated or a representation against an adverse report has not been disposed of in accordance with Rule 4, such report shall not be treated adverse for the purposes of promotion, crossing of Efficiency Bar and other service matters of the Government Servant concerned.
(emphasis added)
14. From bare reading of the aforesaid Rules , it is clear that moment representation against the adverse entry awarded is made the appropriate authority shall forward the same to the higher competent authority within 45 days alongwith his comments and upon receiving of the same within 120 days, the competent authority would either accept the comments so made or if no comment is made ,shall pass speaking order either rejecting the application or expunging the adverse entry.
15. Thus in any case, representation has to be disposed of within 165 days plus 7 days (period to forward representation) i.e. 72 days.
16. In this case admittedly representation was made on 22.5.2017 and that remained undisposed of admittedly until 24.11.2017. According to the relevant provisions (supra) the period is 172 days and so would expire on 09.11.2017.
17. Now it is necessary to examine that what will be the impact of such adverse entry in case Departmental Promotion Committee sits in the meanwhile and decides to consider the candidature of various candidates for promotion.
18. From the aforesaid Rule, it is clear that if representation remains undisposed of beyond the period prescribed for its disposal, then such adverse entry would not be a bar for the purposes of consideration for promotion.
19. Thus in my considered view since other past adverse entries had already stood expunged vide orders dated 12th January 2016 and 26.12.2016 and statutory period of 172 days had expired on 09.11.2017, nothing restrained the then Departmental Promotion Committee that sat on 24.11.2017 from considering the candidature of the petitioner for promotion. Admittedly persons junior to the petitioner have come to be promoted on 5.12.2017 as averred in paragraph 38 of the writ petition which has been very vaguely denied.
20. It is settled legal position that while right to promotion may not be fundamental right but right to be considered for promotion in accordance with service rules, is a fundamental right and any discrimination in such a matter would be hit by Article 14 of the Constitution of India. In a very recent judgment of the Supreme Court in the case of Ajay Kumar Shukla and Others v. Arvind Rai and Others in Civil Appeal No. 5966 of 2021 and other connected matters decided on 08th December, 2021 the Court referred to a number of decisions on this point vide paragraph nos. 37, 38 and 39 These paragraphs run as under:
"37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in the case of Director, Lift Irrigation Corporation Ltd. and Others vs. Pravat Kiran Mohanty and Others6 in paragraph 4 of the report which is reproduced below:
"4... There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified.
38. A Constitution Bench in case of Ajit Singh vs. State of Punjab7, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao,J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27:
"21: Articles 14 and 16(1): is right to be considered for promotion a fundamental right 22: Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".
It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right. "Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1) xxxx xxxx xxxx xxxx xxxx
27. In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950."
39. This Court in Major General H.M. Singh, VSM vs. UOI and Another 8 , again reiterated the legal position, i.e. right to be considered for promotion as a fundamental right enshrined under Article 14 and Article 16 of the Constitution of India. The relevant extract from paragraph 28 is reproduced below:
"28. The question that arises for consideration is, whether the non-consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition that the respondents were desirous of filling the vacancy of Lieutenant-General, when it became available on 1-1-2007. The factual position depicted in the counter-affidavit reveals that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major-General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential Order dated 29-2-2008, and thereafter, by a further Presidential Order dated 30-5-2008. The above orders clearly depict that the aforesaid extension in service was granted to the appellant for a period of three months (and for a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant-General (in case the recommendation made in his favour by the Selection Board was approved by the Appointments Committee of the Cabinet, stands affirmed). The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant-General would have resulted in violation of his fundamental right under Article 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary."
21. The Court in the above case though was considering the legality of the seniority list and if illegally prepared seniority list being against statute, continued, it would defeat a rightful claim of a candidate for promotion placing him under his juniors.
Speaking for the bench, his lordship Hon'ble Justice Vikram Nath vide paragraph 40 has observed thus:
"40. If the seniority list is allowed to be sustained then the engineers who are more meritorious in the Mechanical and Civil streams than the Junior Engineers of the Agricultural stream would be deprived of their right of being considered for promotion and in fact their right would accrue only after all the Junior Engineers of the Agricultural stream selected in the same selection are granted promotion. For these reasons also the seniority list in question must go."
22. Besides above, the Court is of the considered view that merely because there was excess number of booking clerks than the sanctioned posts, this by itself should not have been a ground to deny promotion to the petitioner when juniors to the petitioner had come to be promoted by the Departmental Promotion Committee vide its resolution dated 24.11.2017. Petitioner's candidature certainly fell within the zone of consideration of promotion on 24.11.2017 and the respondent seriously erred in law in ignoring the claim of the petitioner just because his representation against adverse entry had remained undisposed of. Thus the order impugned denying claim of promotion to the petitioner is absolutely unsustainable and is vitiated for arbitrary and discriminatory approach of the authorities.
23. Article 14 of the Constitution provides for not only equality before law but also equal protection of laws. The fundamental right to be considered for promotion as discussed above indicates at ruling out any kind of approach by an employer that leads to discrimination. One must understand that not only by express act but even where by conduct discrimination crepts in, it is an arbitrariness on the part of employeer because whatever is arbitrary, discriminatory and unreasonable is violative of the Article 14 and 21 of the Constitution of India.
24. In the case of Maneka Gandhi v. Union of India and Another, AIR 1978 SC 597 vide 56 the Constitution Bench has held thus:
"56. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach._ No attempt should be made to truncate its all embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned Within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E. P. Royappa v. State of Tamil Nadu & Another (1) namely, that "from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". Article 14 strikes, at arbi- trariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14. It must be "'right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. How far natural justice is air essential element of procedure established by law .
25. In Service jurisprudence where we refer employer employee relationship to be governed by contract of employment, it is embedded in such contract that all service benefits to which under his contract of employment and the relevant service rules, an employee is entitled, same shall be conferred upon him without discrimination.
26. Every establishment, be it government or non government, runs on its workforce that are employed at various stages i.e. Labour , technical hand, office work, administration/management that form very important components of entire machinery like quartz in a watch that are though made of very common materials put while placed under mechanical stress maintain a precise frequency standard. Those who run administration of an establishment are under an obligation to ensure that workforce is properly placed and taken good care of to get from them the maximum output. They are at the bottom but if duly raised looking to their eligibility and utility, these employees will give their maximum to the establishment. The success story of every establishment shows that it has been able to maintain high quality and standard of work.
27. Annual increments, increments on crossing the efficiency bar, Assured Career Progression and promotion are all aimed at maintaining the requisite vigour that would make establishments achieving their objectives with which that have come into existence. It is duty of those who are at highest echelon of the establishment to ensure that work force is not treated like a herd of sheep, instead it be duly treated and honoured as horsepower, necessary to make establishments move on. Stagnation, unnecessary harassment, discrimination if meted out to the employees forcing them to unnecessary litigation, the system will stand forced to bleed discontent and corruption. Employees if adopt such attitude and become indifferent, then top boses of the establishment are only to be blamed.
28. The petitioner in the present case has certainly been wholly illegally discriminated against for not being considered for promotion by the Departmental Promotion Committee while it considered promotion from Class IV posts to class III posts on 24.11.2017.
29. In the case of U.P. State Electricity Board and Another v. Kharak Singh and Another, R.K.Singh v. State of U.P. and Others and recently and in the case of Ramesh Kumar v. Union of India and Others, Supreme Court has considered the issue of giving consequential benefits to an employee who had been wholly illegally denied promotion and had been made junior to his juniors in the establishment for the fault of authorities.
30. Going through three judgments referred to hereinabove following three principles emerge:
a. adverse reports if are expunged or if not as per the rules, and the time has run out for affirming or rejecting the same by the authority as in the present case, the same shall not be a reason to deny promotion;
b. once adverse entry has come to be expunged may be from a subsequent date such employee would be entitled to service benefits w.e.f the date, it had become due; and c. principle of "no work no pay" is not applicable in cases where an employee has been denied promotion for no fault of his own. So not only seniority has to be restored giving promotion to him from the date his juniors have been promoted with all consequential monetary benefits to which such employee would have been otherwise entitled, had he been promoted in time but also all other consequential benefits should be conferred with retrospective effect upon such an employee
31. In my considered view, aforesaid three principles enunciated in the judgments of the Supreme Court (supra) are fully attracted and applicable to the petitioner's case in hand.
32. In view of above, this petition succeeds and is allowed. The order dated 16.07.2019 passed by the Regional Manager, U.P. Transport Corporation, Kanpur, annexure 11 to the writ petition, is hereby quashed.
33. Respondent concerned is directed to constitute a Departmental Promotion Committee to consider promotion of the petitioner w.e.f. the date juniors to the petitioner have been promoted, with all consequential benefits and pass orders accordingly.
34. The above task as directed hereinabove, shall be accomplished by the concerned respondent authority within a period of two months from the date of production of certified copy of the order.
Order Date :- 15.2.2022 Sanjeev