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IN THE HIGH COURT OF ALLAHABAD
Ajit Kumar, J.
Alok Kumar Singh - Petitioner
Versus
State of U.P. and others - Respondents
Civil Misc. Writ Petition No. 3785 of 2023
Decided On : 20-09-2023
Promotion - Assistant Engineer - U.P. Government Servants (Group A) Rules, 1990; U.P. Services of Engineer, Irrigation Department (Group B) Service Rules 2007 - The court interpreted the eligibility criteria for promotion, emphasizing that notional service should be considered alongside actual service, leading to the conclusion that the petitioner was entitled to promotion despite being on probation.
Fact of the Case:
The petitioner, an Assistant Engineer, challenged the denial of his promotion to Executive Engineer based on insufficient service duration. He argued that his seniority was established and that he should be considered for promotion despite being on probation due to delays caused by administrative issues.
Finding of the Court:
The court found that the petitioner was unjustly denied promotion due to administrative delays and that his notional service should be counted towards the eligibility criteria for promotion, leading to the conclusion that he met the requirements for promotion.
Issues: Whether the period of service required for promotion includes notional service and whether the petitioner was entitled to relaxation of the service requirement due to special circumstances.
Ratio Decidendi: The court held that the term 'service' in the promotion rules includes notional service, and the petitioner was entitled to be considered for promotion based on his seniority and the circumstances surrounding his delayed joining.
Result: The court quashed the denial of promotion and ordered the petitioner to be promoted with all consequential benefits.
JUDGMENT :
Ajit Kumar, J.
Heard Sri Kunal Shah, learned counsel for the petitioner and learned Additional Chief Standing Counsel.
2. Petitioner, who is currently holding the post of Assistant Engineer (Civil) in the Department of Irrigation and Water Resources Uttar Pradesh, Lucknow is aggrieved by the order dated 12.9.2022, impugned herein this petition for denying his claim for promotion as Executive Engineer on the ground that he did not fulfill the eligibility criteria of having minimum period of service to his credit as Assistant Engineer as required under the Uttar Pradesh Government Servants (Group A), Rules, 1990 (hereinafter referred to as ''Rules 1990'').
3. According to the petitioners, the feeding cadre for the post of Executive Engineer (Civil) in the department is the cadre of Assistant Engineer (Civil) and as per the rules criterion for promotion is seniority subject to rejection of unfit. Petitioner's case is that he otherwise stands above the 5th respondent, Mr. Utkarsh Bharadwaj in the seniority list of Assistant Engineer (Civil) by virtue of the order passed in his case determining the seniority on 8th of January, 2018 placing him in between Shri Sudhir Kumar Pal at serial No. 415 and Utakarsh Bharadwaj at Serial No. 416 by listing his name at serial No. 415 (A). This order has never been assailed against.
4. In order to appreciate the controversy involved in the present case vis-a-vis the claim of the petitioner, which according to him should have been accorded preference over and above impleaded respondents in the writ petition, it is necessary to draw facts in a narrow compass.
5. Petitioner was applicant for the post of Assistant Engineer (Civil) pursuant to the advertisement issued by the Public Service Commission, Uttar Pradesh. Advertisement was issued wayback in the year 2004 but selection process became a long drawn process and result was ultimately declared on 10th of March, 2011. The petitioner successfully made it to the merit list, however, he could not be offered appointment because of not furnishing of No Objection Certificate (NOC) of his earlier employer, namely, the U.P. Public Works Department, where he was working. Petitioner's earlier NOC ran out of his life because of the delayed selection process in the Public Service Commission. Accordingly, he applied for fresh NOC and this fact he intimated to the Public Service Commission. Since, the petitioner had been reverted in the meantime while working in U.P. Public Works Department, some more technicality arose in issuance of the NOC by particular section and ultimately that was issued only on 27th January, 2012, which the petitioner submitted before the Public Service Commission on 30th January, 2012. The petitioner was not issued any appointment order and accordingly when he enquired under the Right to Information Act, 2005, he was replied that his candidature has been cancelled. Consequently petitioner filed writ petition before this Court being C.W.P. No. 51969 of 2012, which was allowed by the Division Bench under its judgment and order dated 12.8.2014. The Commission ultimately forwarded the name of the petitioner for appointment on the post of Assistant Engineer (Civil) on 9.10.2014 and the State Government appointed petitioner by issuing an appointment order on 18.9.2015. However, on account of critical illness of his father, who was diagnosed of cancer and who had to undergo surgery at TATA Memorial Hospital, Mumbai, petitioner could not submit his joining and requested the State Government to extend the period and Government extended vide notification dated 5.1.2016. Petitioner ultimately joined on the post of Assistant Engineer (Civil) on 4.2.2016.
6. In the background of above facts there arose question of seniority of the petitioner, which according to him was to be determined as per the U.P. Services of Engineer, Irrigation Depar
Notional service can be included in the calculation of eligibility for promotion, and administrative delays should not penalize an employee's right to promotion.
Promotion in public service must adhere to seniority principles, and arbitrary actions undermining this principle are impermissible.
Promotions take effect from the date granted, not from the date of vacancy, and retrospective seniority cannot be assigned.
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.
Promotions in public service are prospective and take effect from the date duties are assumed, not from earlier dates, emphasizing a distinction between the right to be considered for promotion and t....
An employee has a fundamental right to be considered for promotion, but not a right to retrospective promotion unless clearly justified by rules or exceptional circumstances.
Administrative delays should not adversely affect an employee's promotional prospects, allowing for notional promotions post-retirement under specific rules.
Promotion for eligible employees based on qualifications must be timely and fair, not delayed arbitrarily, upholding the principles of legitimate expectation and constitutional rights.
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