Point of Law: Unauthorized absence (or overstaying leave), is an act of indiscipline.

JUDGMENT :

Prayers in this Writ Petition are as follows :

“i. To issue a writ of certiorari quashing Exhibit P8 as unjust, arbitrary and unsustainable.

ii. To issue a writ of certiorari quashing Exhibit P7 to the extent to which it denies promotion to the petitioner as Senior OCIOA w.e.f. 01.12.2016 and promotes the 5th respondent as Senior OCIOA w.e.f. 01.12.2016.

iii. To declare that petitioner is entitled to be promoted to the post of Senior OCIOA w.e.f. 01.12.2016 in the retirement vacancy of Sri. P.A. Sasidharan and that he is entitled to be promoted to the post of programmer ahead of the 5th respondent.

iv. To issue a writ of mandamus directing the respondents 1, 2 and 3 to pass orders, promoting the petitioner to the post of Senior OCIOA w.e.f. 01.12.2016 and to promote him to the post of programmer reckoning his seniority in the post of Senior OCIOA.”

2. Heard learned counsel appearing for the petitioner, learned Standing Counsel appearing for respondents 1 to 4 and the learned counsel appearing for 5th respondent.

3. It is submitted that the petitioner was appointed as Lower Division Clerk (for short ‘LDC’) in the 1st respondent on 19.02.1996 and was promoted as Upper Division Clerk/Shed Clerk and thereafter as Operator cum Input/ Output Assistant (for short OCIOA). His appointment as OCIOA was on 30.12.1999 and he was included as Rank No.4 out of 13 candidates for promotion to the post of Senior OCIOA/Programmer. It is submitted that the 5th respondent who had lesser marks than the petitioner was included as rank No.12 in the list. By virtue of the Recruitment Rules as it stood in 2016, the post of Senior OCIOA is to be filled up by promotion from the post of OCIOA with two years regular service or from Accountant with three years regular service. The petitioner contends that the 5th respondent who was his immediate senior in the seniority list of OCIOA was punished for unauthorised absence from 01.05.2015 to 18.05.2015. By Ext.P3 order dated 08.02.2016, the period from 01.05.2015 to 18.05.2015 was treated as non-duty for all purposes other than pension. It is contended that due to treating of the said period of 18 days as non-duty, the 5th respondent became junior to the petitioner and it was the petitioner who ought to have been promoted as Senior OCIOA w.e.f. 01.12.2016. The petitioner therefore filed Exts.P5 and P6 representations which were rejected by Ext.P8. The 5th respondent was promoted as Senior OCIOA by Ext.P7 order dated 01.12.2016.

4. The learned counsel for the petitioner relies on the decisions of the Apex Court in Ajith Singh & Ors. v. State of Punjab and others [(1999) 7 SCC 209], Sarabjit Singh v. Ex.Major B.D. Gupta and others [(2000) 7 SCC 67] and Major General H.M. Singh, VSM v. Union of India & Anr. [(2014) 3 SCC 670] to contend that the right to be considered for promotion is a fundamental right. Relying on the decision of the Apex Court in State of Punjab v. Dr.P.L. Singla [2008(3) KHC 968], it is contended that when the period of unauthorised absence is found after conducting due disciplinary proceedings and the period is specifically treated as unauthorised absence and ‘non-duty’ for all purposes except pension, then, the period cannot be taken into account for any purposes except pension. It is submitted that this would include the treating of the period as ‘non-duty’ for the purpose of reckoning seniority as well and that therefore, the period would have to be ignored to consider the inter-se seniority of the incumbents. It is contended that the rejection of the petitioner’s request by Ext.P8 is completely unsustainable.

5. A counter affidavit has been placed on record by respondents 1 to 4. It is contended in the counter affidavit that the 5th respondent was senior to the petitioner as evidenced by the orders of appointment and the seniority list which are produced along with the counter affidavit. It is submitted that in all the seniority lists which were published periodically, the 5th respond