Allahabad High Court
State Of U.P. Thru. Addl.Chief Secy. ... vs Pramod Kumar Tewari And Anr on 27 February, 2023
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad (Lucknow) ********************** A.F.R. Court No. - 2 Case :- WRIT - A No. - 1766 of 2023 Petitioner :- State Of U.P. Thru. Addl.Chief Secy. Institutional Finance Tax And Registration U.P. Lko. And Anr Respondent :- Pramod Kumar Tewari And Anr Counsel for Petitioner :- C.S.C. Counsel for Respondent :- Praveen Kumar Tewari,Prateek Tewari,Shikhar Anand Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Subhash Vidyarthi,J.
1. Heard learned counsel for the State-petitioners and Sri Prateek Tewari, learned counsel representing the respondent no.1.
2. Under challenge in this petition filed under Article 226 of the Constitution of India is the judgment and order dated 08.06.2022, passed by U.P. Public Services Tribunal (hereinafter referred to as ''the Tribunal'), whereby the Claim Petition No.249 of 2021 filed by the respondent no.1-claimant has been allowed and while quashing the order dated 22.12.2020, whereby the respondent-claimant was denied promotion to the post of Head Assistant from the post of Senior Assistant, the State authorities have been directed to consider the case of the claimant for promotion to the said post and also to provide consequential benefits, including the benefit of third Assured Career Progression.
3. Submission of learned counsel for the State-petitioners is that the learned Tribunal has completely ignored the Government Order dated 25.03.1994 while allowing the claim petition and as a matter of fact on account of availability of a censure entry awarded to the claimant on 10.04.2017, he could not have been legally promoted to the post in question. It has been argued that the case of the claimant was considered by the Departmental Promotion Committed thrice i.e. on 13.10.2017, 28.03.2018 and 30.06.2020, however, because of availability of the censure entry awarded to the claimant on 10.04.2017 by all the three Departmental Promotion Committees his claim for promotion has rightly been rejected.
4. It has been argued by learned counsel appearing on behalf of the petitioners-State authorities that the learned Tribunal has not considered the Government Order dated 25.03.1994 which unambiguously provides that even if a censure entry pertains to an incident occurred previously which is awarded later on, such censure entry will be effective from the date of its award and not with effect from of the date of the incident in respect of which it is awarded. It has thus been argued that such stipulation made in the Government Order dated 25.03.1994 dis-entitles the claimant to claim his promotion to the post in question.
5. On the other hand, Sri Prateek Tewari, learned counsel representing the respondent no.1-claimant has submitted that in fact the provisions contained in Government Order dated 25.03.1994 and the Government Order dated 30.06.1993 are not in conflict with each other and both operate in different fields. He has also drawn our attention to another Government Order dated 06.04.1999 and has stated that the very purpose of issuance of the said Government Order is to not only to keep the censure entry in the service record of the employee concerned in the year in which it is awarded, but also to mention as to for which period the censure entry has been awarded so that at the time of evaluation of the character roll of the employee concerned for any purpose the natural consequence/effect of such censure entry awarded later in respect of an earlier incident may be assessed.
6. The submission made by Sri Tewari further is that though the claimant was awarded censure entry on 10.04.2017, however, since while making assessment of annual confidential report for the year 2017-18 the claimant was rated as a very good official/officer as such the censure entry awarded in the mid of 2017 i.e. on 10.04.2017 will lose its efficacy so for as the promotion of claimant to the post in question is concerned for the reason that the said censure entry pertained to the period 2008-09. The submission, thus is that the writ petition is highly misconceived and is based on complete misreading of the provisions contained in the Government Order dated 25.03.1994 and in ignorance of what has been prescribed by the Government in its Government Order dated 06.04.1999, which is liable to be dismissed at its threshold.
7. The fate of this writ petition depends on deciphering the actual purport and correct construction of the provisions contained in the Government Order dated 25.03.1994 vis-a-vis the provisions contained in the Government Orders dated 30.06.1993 and 06.04.1999.
8. The petitioner is working in the Commercial Tax Department on the post of Senior Assistant and has been claiming his promotion to the post of Head Assistant. His case though has been considered thrice by the Departmental Promotion Committee, as noted above, however, on all these three occasions he has been denied promotion to the post in question for the reason that he was awarded a censure entry on 10.40.2017.
9. First of all, we will examine as to what prescription is available in the Government Order dated 30.06.1993.
10. Learned counsel for the State authorities-petitioners has referred to the provisions contained in Para 2 (स) of the said Government Order dated 30.06.1993, which is quoted hereunder:
"(2) ¼l½ ;fn ml vof/k esa] ftlds lsokfHkys[k mijksDrkuqlkj fopkj {ks= esa vkrs gksa] dksbZ fuUnk izfof"V fo|eku gks vkSj ml fuUnk izfof"V ls lacaf/kr ?kVuk dh frfFk ds ckn dh vxys ikap o"kZ dh vof/k esa dksbZ vU; izfrdwyrk ¼;Fkk izfrdwy izfof"V] n.M vkfn½ u gks rks ml fuUnk izfof"V dks larks"ktud lsok ds ewY;kadu gsrq fopkj esa u fy;k tk;s vFkkZr~ mls utjvUnkt dj fn;k tk;sA"
11. When we peruse the afore-quoted provision, what we find is that the State Government has provided that in case any censure entry is available during the period for which the relevant service record of an employee is under consideration and no other adverse entry or punishment is awarded to such an employee within five years from the date in respect of which the censure entry is available, such censure entry shall not be considered for the purposes of evaluating satisfactory service of the employee concerned, that is to say such censure entry is to be ignored.
12. Accordingly, we are very clear in our mind that in case during the period in respect of which service record of an employee is under consideration if only solitary censure entry is available which pertains to some previous period and is not coupled with any other adverse material including the adverse entry or punishment etc. awarded within five years from the incident which had resulted in award of censure, such adverse entry is to be ignored and it will have no impact so far as the assessment of the employee concerned for the purposes of determination of satisfactory service is concerned.
13. Now, we examine the provisions as relied upon by the learned counsel representing the State authorities-petitioners contained in the Government Order dated 25.03.1994. Learned State Counsel has relied upon Para 5 (4) and Para 6 of the said Government Order, which are quoted hereunder:
"5- of.kZr ifjfLFkfr;ksa esa iz'uxr ekeys esa eq>s fuEufyf[kr fLFkfr dks Li"V djus o 'kkldh; fu.kZ; ls vkidks voxr djkus dk निर्देश gqvk gS& ¼4½ izR;sd vfu;ferrk ds lEcU/k esa pkgs os fdlh iwoZ o"kZ dh gks] tks Hkh n.Mkns'k fuxZr fd;k tk;sxk] mldk rkRdkfy'k izHkko gksxk rFkk n.Mkns'k fuxZr gksus ds fnukad ls lEcfU/kr o"kZ dh okf"kZd izfof"V ds lkFk mls j[kk tk;sxkA 6- vuqjks/k gS fd lUnHkZxr 'kklukns'k fnukad 30 twu] 1993 esa fu/kkZfjr lkekU; ekxZn'kZd fl)kUrksa dks mijksDr izLrj&5 ds lkFk i<+k tk; o mudk d`i;k lHkh Lrjksa ij dM+kbZ ls vuqikyu lqfuf'pr fd;k tk;A"
14. Paragraph 5 (4) of the Government Order dated 25.03.1994 as afore-quoted provides that any punishment order issued will be effective with immediate effect even if it is issued in respect of some irregularity committed at a prior point in time. It further provides that such punishment order shall be kept in the character roll of the employee concerned in the year in which it is awarded. Paragraph 6 states that the Government Order dated 30.06.1993 shall be read in conjunction which para 5 of the Government Order dated 30.06.1993.
15. If we compare Paragraph 5 (4) available in the Government Order dated 25.03.1994 and Paragraph 2 (स) of the Government Order dated 30.06.1993, we do not find that there is any conflict between the said provisions. In fact both operate in different fields. So far as Paragraph 5 (4) of the Government Order dated 25.03.1994 is concerned, according to our considered opinion, the same provides as to in the character roll of which year punishment awarded to a government employee has to be kept and from what date will it be effective. Whereas so far as the provisions contained in Paragraph 2 (स) of the Government Order dated 30.06.1993 is concerned, the same, in our considered opinion, provides that even if a censure entry is available in the service record of an employee awarded in a year subsequent to the year in which any irregularity is said to have been committed which has resulted in award of censure entry, the same is to be ignored for the purposes of assessment of satisfactory service of an employee provided that during next five years from the date of incident in respect of which censure entry was awarded, the employee concerned has not been awarded with any other censure entry or punishment.
16. Accordingly, Paragraph 5 (4) of the Government Order dated 25.06.1994 does not in any manner dilute the provisions contained in Paragraph 2 (स) of the Government Order dated 30.06.1993. The said interpretation and construction of the provisions contained in the Paragraph 2 (स) of the Government Order dated 30.06.1993 has a rationale too which is that in a situation where a censure entry is awarded to an employee in respect of an incident or alleged irregularity said to have occurred or committed in past and considerable time has elapsed since then, taking into consideration award of censure entry for the purposes of reckoning the satisfactory service, in our opinion, will be highly arbitrary.
17. Our view that Paragraph 5 (4) of the Government Order dated 25.03.1994 does not in any manner dilute or rescind the provisions contained in Paragraph 2 (स) of the Government Order dated 30.06.1993, is fortified by a subsequent Government Order dated 06.04.1999. Paragraph 2 of the said Government Order dated 06.04.1999 is quoted hereunder:
"2- eq>s ;g dgus dk funs'k gqvk gS fd ,sls izdj.kksa ij ftlesa tkapksijkUr lsalj ;k fuUnkRed izfof"V fn;s tkus dk fu.kZ; fy;k tkrk gS] og izfof"V lacaf/kr deZpkjh@vf/kdkjh dh pfj=&iaftdk esa mlh o"kZ dh izfof"V esa j[kh tk;sxh ftl o"kZ lsULkj vFkok fuUnkRed izfof"V fn;s tkus dk fu.kZ; fy;k x;k gSA og mYYks[k vo'; dj fn;k tk; fd izdj.k lacaf/kr ds lsokdky ds fdl in o o"kZ ls lacaf/kr jgk gS vkSj izkIr dh x;h =qfV fdl izd`fr dh jgh gS ftlls pfj= iaftdk dk ewY;kadu djrs le; nh x;h izfof"V ds LokHkkfod vlj dks n`f"Vxr j[kk tk ldsA"
18. From a perusal of the afore-quoted provision of Paragraph 2 of the Government Order dated 06.04.1999, it is clear that it has been provided therein that in case after enquiry any censure entry is awarded against an employee, such censure entry shall be kept in the character roll of the employee concerned in the year in which censure entry is awarded, however, while doing so it shall also be mentioned, while recording the censure entry in the year in which it is awarded, that censure entry related to which year or which post and what has been the nature of the mistake which resulted in award of censure entry so that the actual and natural consequence and effect of such censure entry can be taken into account while evaluating an employee. Thus, the Government Order dated 06.04.1999, to us, appears to be in complete sync with provisions contained in Paragraph 2 (स) of the Government Order dated 30.06.1993 which, as observed above, does not get diluted by the provisions contained in Paragraph 5 (4) of the Government Order dated 25.03.1993.
19. So far as the facts of the present case are concerned, admittedly a censure entry awarded to the claimant on 10.04.2017 pertained to the period 2008-09 and the Departmental Promotion Committee was convened firstly on 13.10.2017 and thereafter on 28.03.2018 and again on 30.06.2020. As per the Government Orders as discussed above, the censure entry awarded on 10.04.2017 is to be kept in the service record of the claimant in the year 2017-18 however simultaneously a mentioned is to be made that the said censure entry pertained to the year 2008-09. Since there is nothing on record which can reveal that the claimant was awarded any other censure entry or punishment within five years after 2008-09 and the censure entry dated 10.04.2017 was the sole adverse material as such in our opinion while considering his promotion to the post of Head Assistant the Departmental Promotion Committee has unlawfully considered the censure entry dated 10.04.2017, whereas the said entry ought to have been ignored.
20. The Departmental Promotion Committees held successively on 13.10.2017 and thereafter on 28.03.2018 and again on 30.06.2020 have repeated the mistake which has resulted in denial of right the petitioner being considered for promotion to the post of Head Assistant. Even otherwise, what the learned Tribunal has noticed is that for the year 2017-18 the annual character roll entry of the claimant was "very good". In a situation where a censure is being awarded to an employee on 10.04.2017 in respect of period of 2008-09 and in the annual entry for the year 2017-18 he is being rated as a very good official/officer, denying the claim of promotion on the ground of the censure entry dated 10.04.2017 pertaining to the period 2008-09 is, thus, not only illegal being contrary to what has been prescribed in Paragraph 2 (स) of the Government Order dated 30.06.1993 but is also arbitrary.
21. For the reasons aforesaid, we are in complete agreement with the judgment passed by the U.P. State Public Services Tribunal which is under challenge herein.
22. The writ petition thus lacks merit, which is hereby dismissed.
23. The judgment of the learned Tribunal shall be complied with within a period of two months from today. This order shall be communicated by learned State Counsel to the authority concerned forthwith.
[Subhash Vidyarthi, J.] [Devendra Kumar Upadhyaya, J.] Order Date :- 27.02.2023 Ram.