Allahabad High Court
The State Of U.P. Thru.Prin.Secy. ... vs Suresh Pandey on 16 October, 2019
Bench: Pankaj Kumar Jaiswal, Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Case :- SPECIAL APPEAL No. - 426 of 2019 Appellant :- The State Of U.P. Thru.Prin.Secy. Irrigation&Water Resource Respondent :- Suresh Pandey Counsel for Appellant :- C.S.C. Counsel for Respondent :- Shireesh Kumar Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Irshad Ali,J.
Heard Sri Gopal Kumar Srivastava, learned Standing Counsel for the appellants respondents and Sri Shireesh Kumar, learned counsel for the respondent petitioner.
Present special appeal has been filed against the judgment and order dated 22.07.2019 passed by the learned Writ Court in Writ Petition No. 10546 (S/S) of 2019 by which learned Writ Court quashed the order dated 14.03.2018 (Annexure No. 8 to the writ petition) and directed the appellants respondents to consider the candidature of the respondent petitioner for promotion to the post of Superintending Engineer with effect from 21.02.2014 and promote him to the post of Superintending Engineer (Mechanical) in the Department of Irrigation w.e.f. 21.02.2014 with all consequential service benefits within a period of two months from the date of production of certified copy of this order.
Brief facts of the case are that on 21.02.2014 the juniors of the respondent petitioner have been promoted on the post of Superintending Engineer but the candidature of the petitioner was not considered and, therefore, he filed claim petition before the U.P. State Public Services Tribunal, which was allowed vide judgment and order dated 19.10.2015 whereby the learned Tribunal quashed the order dated 01.10.2014 and directed the appellants respondents to allow the promotion to the respondent petitioner for the post of Superintending Engineer (Mechanical) with effect from 21.02.2014, the date when juniors of the respondent petitioner were promoted. The aggrieved appellants respondents have challenged the said order by filing of writ petition before this Court being Writ Petition No.17038 (S/B) of 2016 and the said writ petition was finally disposed of by the learned Writ Court vide order dated 27.03.2019 granting liberty to the respondent petitioner to challenge the recommendation of the Departmental Promotion Committee for which the recruitment year 2013-2014, if he so desires. The relevant portion of the said judgment and order reads 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.
12. At this stage, the counsel for the respondent submits while disposing of the writ petition, a liberty may be given to the respondent to challenge the recommendation of the Departmental Promotion Committee for the vacancy year 2013-14 as the respondent was having required character roll for promotion based on merit.
13. In view of the discussion made above, we find force in the arguments of the learned Standing Counsel for causing interference in the order of the Tribunal for a direction to promote the respondent employee on the post of Superintending Engineer with effect from 21.02.2014. Accordingly, order of the Tribunal is set aside with acceptance of the writ petition.
14. The respondent employee is, however, given liberty to challenge the recommendation of the Departmental Promotion Committee for the recruitment year 2013-14, if he so desires and for that, this judgment would not come in his way in any manner. "
It has also come on record that at the time of passing of the order dated 27.03.2019 this Court has summoned the original record pertaining to the Departmental Promotion Committee and after perusal of the same this Court came to the conclusion that the juniors of the respondent petitioner have been promoted on the post of Superintending Engineer but since one enquiry was pending against the respondent petitioner, therefore, sealed cover procedure was adopted in his matter. After conclusion of the enquiry aforesaid the respondent petitioner was exonerated from the charges levelled against him and, as such, the respondent petitioner was promoted on the post of Superintending Engineer on 02.01.2015 but the case of the respondent petitioner before the learned Writ Court is that since the juniors to him have been promoted on the post of Superintending Engineer with effect from 21.02.2014, therefore, he should be treating Superintending Engineer with effect from 21.02.2014.
Learned Writ Court after perusal of the original record, produced by the appellants respondents, has given a clear cut finding that the respondent 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 and quashed the order impugned in the writ petition. The relevant portion of the order reads as under;
"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. "
The contention of learned Standing Counsel is that the D.P.C. was held on 21.02.2014 and as censor was imposed upon the respondent petitioner for the relevant year 2013-14 he was not promoted w.e.f. 21.02.2014 and recommendations with regard to him were kept in sealed cover and after completion of enquiry he was promoted on the post in question w.e.f. 02.01.2015.
We posed a specific query from the learned Standing Counsel to point out the relevant document to substantiate his argument but he has failed to do so. The fact of the matter is that learned Writ Court after perusing the original record, has given a categorical finding that the respondent 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.
On due consideration of the aforesaid, we are of the considered view that learned Writ Court has examined all the issues involved in the present case and there is no legal error in the order impugned that may warrant interference of this Court in Appellate Jurisdiction.
Special appeal has no merit and is, accordingly, dismissed.
[ Irshad Ali, J. ] [ Pankaj Kumar Jaiswal, J. ] Order Date :- 16.10.2019 Shekhar