B. P. Sharma vs Union of India - 1990 Supreme(MP) 716

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Petitioner: M. Agarwal
For the Respondents: B.K. Rawat

Headnote:(1) Constitution of India – Arts. 226 and 227 – alternative remedy of appeal not available – forum of representation not clear – petition not barred.
       (2) Civil Services – promotion – adverse remarks not communicated – order in writ petition not complied with – withholding of promotion is illegal.
        Short Note
       1. The respondents 1 to 3 filed reply opposing the petition. A preliminary objection was taken that the petitioner filed the petition without exhausting the remedy available to him under rule 80 of the Rules called "Kendriya Vidyalaya Sangathan (Appointment, Promotion, Seniority etc.) Rules, 1971" read with the Central Civil Services (Classification, control & Appeal) Rules, 1965. It was submitted that the petitioner's promotion to the post of Vice Principal was subject to his satisfactory work and conduct for a period of two years which was later on extended by one year. The promotion to the post of Principal is on the basis of evaluation on merit – cum – seniority from amongst the Vice Principals, who had rendered a minimum 5 years of service in the Kendriya Vidyalaya, out of which 3 years should be in the grade of Vice Principal. The petitioner's claim was considered for promotion to the post of Principal and he was not selected. It was also stated that since his work and conduct was not found satisfactory, the petitioner was not even confirmed in the cadre of Vice Principal.
       Held : After hearing learned counsel for the parties, we are of the opinion that this petition must be allowed. Our attention was drawn to rule 23 of tile Central Civil Services (Classification, Control & Appeal) Rules, 1965 (hereinafter called “C.C.S. (C.C.A.) Rules, 1965") which provides for matters against which a Government servant can prefer an appeal under clause (iv) thereof, an appealable order is which denies or varies to his disadvantage, his pay, allowances, pension or other conditions of service as regulated by rules or by agreement. The contention of the respondents 1 to 3 is that the petitioner's super – session or his placement in the seniority list amounts to denial or variance within the meaning of rule 23 (iv) of the said Rules. There is no force in this submission. This is not one of those cases in which any existing condition or petitioner's service was denied or varied. Therefore, the petitioner's grievance could not be a subject matter of appeal under rule 23. It is another matter that the petitioner could submit his representation before respondents 1 to 3 in redress to the grievances ventilated in the present petition but no statutory provision was brought to our notice requiring the petitioner to submit it before the prescribed authority. Therefore, the petition cannot be rejected on the aforesaid preliminary objections.
       2. In the earlier petition, the respondents 1 to 3 were directed to give promotion to the petitioner from the date his juniors were promoted to the post of Vice Principal. The Order Annexure P – 4 mentions that juniors to the petitioner were promoted to the post of Vice Principal with effect from 17 – 8 – 1982 and that is why the petitioner's pay on the said post was fixed from that date with first increment on 1 – 8 – 1983 and second increment on 1 – 8 – 1984 with further stipulation of next increment due on 1 – 7 – 1985. The respondent No. 3 informed the petitioner through letter, Annexure P – 3, that his seniority in the post of Vice Principal will be fixed at appropriate place among the promotees of 1981 – 82. The petitioner's grievance is that this assurance has not been given effect to and on the other hand, the respondents 1 to 3 committed breach by placing him in the impugned seniority list, Annexure P – 12 at serial No. 224 by counting his promotion to the post of Vice Principal with effect from 29 – 7 – 1984. The respondents have not denied the correctness of letter Annexure P – 3 so also the relief accorded to the petitioner in the earlier petition. It is thus clear that seniority of the petitioner in seniority list Annexure P – 12 treating him as promoted on 29 – 7 – 1984 to the post of Vice Principal is incorrect and contrary to their Own assurance conveyed to the petitioner and is not in conformity with the decision of this Court in Annexure P – 1.
       3. The petitioner also complains of his super – session by his juniors for promotion to the post of Principal. The petitioner contends that he bas not been communicated or informed any adverse C.R. except what is contained in Annexure P – 10. According to him, the remarks "work and conduct has not been found satisfactory” is vague and does not convey anything. By taking advantage of such un – communicated remarks, the petitioner was denied not only his right of confirmation but also promotion to the post of Vice Principal. In the return filed by the respondents 1 to 3, they failed to specify communication of any adverse remarks to the petitioner. Mere assertion in Annexure P – 10 extending period of probation is not enough unless, remarks are communicated within stipulated time and the petitioner is afforded opportunity to represent against those remarks. It is thus obvious that the petitioner's claim for promotion to the post of Principal was denied to him on the basis of un – communicated adverse remarks as also on the basis of his seniority counted from 29 – 7 – 1984. Therefore, he was unjustifiably discriminated while denying promotion to the post of Principal. It is not essential at this late stage to quash promotions of some of the respondents from serial Nos. 4 to 16, who are shown to be juniors to the petitioner.
       4. In view of foregoing discussion on, the petition is allowed. The placement of the petitioner at serial No. 224 in seniority list Annexure P – 12 is quashed. Mandamus be issued to the respondents to count his seniority on the post of Vice Principal with effect from 17.8.1982, the date on which his juniors were promoted and assign him proper serial number in the list immediately above his juniors shown in the list. Petition allowed.