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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
AJIT KUMAR, J.
Gaya Prasad Pandey - Petitioner
Versus
State of U.P. and Others - Respondents
Writ - A No. 2630 of 2020
Decided On : 15-02-2022
Constitution of India,1950 - Article 226 - Claim for promotion - Assailing above order impugned in present petition Senior Advocate has argued that on meeting of Departmental Promotion Committee which was there was no adverse entry in the character roll of present petitioner and so he was eligible to be considered for promotion - In support of his above argument Senior Advocate submits that prior to year whatever adverse entries were awarded to petitioner that had stood expunged vide orders respectively and in so far as adverse entry of year is concerned he had already represented against same before competent authority on and since no decision was taken by competent authority within period prescribed for disposal of representation of employee said entry U.P. Government Servants Disposal of Representation Against Adverse Annual Confidential Reports and Allied Matters Rules, 1995 would loose its relevance and significance for purposes of consideration of promotion under Rule 5 of said Rules - 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.
Finding of the Court: Court is of considered view that merely because there was excess number of booking clerks than sanctioned posts this by itself should not have been a ground to deny promotion to petitioner when juniors to petitioner had come to be promoted by Departmental Promotion Committee vide its resolution - Petitioner's candidature certainly fell within zone of consideration of promotion and respondent seriously erred in law in ignoring claim of petitioner just because his representation against adverse entry had remained undisposed of - Thus order impugned denying claim of promotion to petitioner is absolutely unsustainable and is vitiated for arbitrary and discriminatory approach of authorities.
Result: Allowed.
JUDGMENT :
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 contesti
SupremeToday
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 den....
The importance of communicating adverse entries in the Annual Confidential Report (ACR) to the employee and the impact of such entries on promotion.
The right to be considered for promotion is a fundamental right under Articles 14 and 16 of the Constitution of India, and denial of timely consideration constitutes a violation of these rights.
(1) Promotion – Promotion is effective from the date it is granted and not from the date when vacancy occurs on subject post or when the post itself is created – There is no fundamental right to prom....
The right to be considered for promotion is a fundamental right, but there is no absolute right to promotion itself, which becomes effective only upon assumption of duties.
The right to be considered for promotion is a fundamental right, and the order of punishment imposed against the petitioner did not comply with the requirements of G.O.Ms.No.342, dated 04.08.1997.
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