Allowed

Arvind Kumar Nirmal v. State of U.P. Thru. Prin. Secy. Deptt of Social Welfare Lko. and Another

Allahabad HC19 Sept 2024WRIA/6533/2024

Case brief

AI extract

What is this about?

The High Court of Judicature at Allahabad allowed a writ petition challenging the Departmental Promotion Committee's decision to withhold promotion due to mark deductions for internal warnings and a minor penalty. The Court quashed the recommendations, holding that only State Government warnings count for deductions and the minor penalty was washed off after subsequent promotion.

What did the court decide?

Quashed the Departmental Promotion Committee's recommendations regarding mark deduction and unsuitability; directed reconstitution of the committee to consider the petitioner's case afresh without ded

Arvind Kumar Nirmal vs State of U.P. Thru… — Pension and Retirement Benefits | Allahabad HC (2024)

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A.F.R.

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Neutral Citation No. - 2024:AHC-LKO:66167

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Court No. - 18

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Case :- WRIT - A No. - 6533 of 2024

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Petitioner :- Arvind Kumar Nirmal

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Respondent :- State Of U.P. Thru. Prin. Secy. Deptt Of Social Welfare Lko. And Another Counsel for Petitioner :- Anupras Singh Counsel for Respondent :- C.S.C.,Naresh Chandra Mehrotra

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Hon'ble Manish Mathur,J.

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Heard Mr. J.N. Mathur, learned senior counsel assisted by Mr. Anupras Singh, learned counsel for petitioner, learned State Counsel for opposite parties no. 1 & 2 and Mr. N.C. Mehrotra, learned counsel for opposite parties no. 3 & 4.

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Counter affidavit filed today on behalf of opposite party no. 1 is taken on record.

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Learned counsel for petitioner on the basis of instructions submits that petitioner does not wish to file any response thereto.

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Short counter affidavit by opposite parties no. 3 & 4 has already been filed and replied to. The petition, therefore, is being adjudicated upon finally.

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Petition has been filed challenging the recommendations/decision of Departmental Promotion Committee dated 05.07.2024 so far as it relates to withholding of recommendation pertaining to petitioner for promotion on the post of Chief Engineer (Civil) of the U.P. State Construction and Infrastructure Development Corporation Limited. Further prayer for a direction to opposite parties to consider petitioner's case for promotion on the post of Chief Engineer (Civil) of the

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Corporation in accordance with Government Order dated 27.09.2019 and for a prohibition to opposite parties for making promotions on the aforesaid post till decision on petitioner's claim has also been sought.

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Learned counsel for petitioner submits that for the purposes of promotion on the post of Chief Engineer (Civil) of the Corporation, a Departmental Promotion Committee was constituted to be held on 05.07.2024 and petitioner's name was duly forwarded by the Managing Director on 05.03.2024. It is submitted that the cut off bench marks for consideration of such promotion being 80 marks, petitioner having obtained 80.25, on the basis of his service his name was duly forwarded for consideration thereof.

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Learned counsel for petitioner has drawn attention to minutes of the Departmental Promotion Committee brought on record by means of the supplementary affidavit dated 04.09.2024 to submit that petitioner's name was thereafter disregarded on the ground that although he had cleared the bench mark with 80.25 marks but 10 marks therefrom were required to be deducted in view of two warnings which were issued to him earlier as well as the fact that he was visited with a minor penalty vide order dated 21.02.2018. It is submitted that due to aforesaid reasons, petitioner's case has not been considered.

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Learned counsel has submitted that earlier a warning was issued to petitioner on 28.10.2014 by the Managing Director of the Corporation when he was posted as Assistant Engineer. Subsequently petitioner was promoted on the post of Executive Engineer (Civil) on 21.12.2016 but while working on such post, he was again issued a warning by the Superintending Engineer on 12.09.2017 whereafter he was also visited with the minor penalty dated 21.02.2018.

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It is further submitted that thereafter a warning was issued to petitioner by the State Government on 05.02.2021 but was subsequently expunged vide order dated 30.01.2024. It is submitted that thereafter petitioner was promoted on the post of Superintending Engineer (Civil) on 16.12.2021 whereafter vide order dated 12.12.2023, the State Government approved upgradation of service entry in petitioner's service records for the year 2017-2018 from 'good' to 'very good'. Similarly vide order dated 11.01.2024, service entry in records of petitioner for the year 2017-2018 and 2018-2019 were also upgraded from 'good' to 'very good'.

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Learned counsel has thereafter adverted to the Government Order dated 27.09.2019, particularly paragraph 7 (6) thereof to submit that as per directions issued by the State Government, only those warnings which were issued by the State Government are required to be taken into account for purposes of deduction in the bench mark for purposes of promotion and since in the present case, two warnings were issued by the Managing Director of the Corporation, the same were not required to be taken into account by the Departmental Promotion Committee. It is further submitted that in terms thereof, the only other warning issued by the State Government has thereafter already been expunged by the State Government itself and naturally the same was not taken into consideration by the Committee.

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So far as the minor penalty is concerned, learned counsel for petitioner submits that the doctrine of washing off will be applicable with regard to said penalty since the same was imposed vide order dated 21.02.2018 whereafter petitioner was promoted on the post of Superintending Engineer on 16.12.2021 and whereafter also his entries in his service were

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recorded as very good vide order dated 12.12.2023.

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Learned counsel for petitioner has also adverted to Form 4 dated 05.03.2024 whereby bench mark of 80.25 was awarded to petitioner while forwarding his name for consideration by the Departmental Promotion Committee. He has adverted to the aforesaid document to indicate that warnings issued by the Managing Director of the Corporation were rightly not taken into account in view of the provisions under paragraph 7 of the Government Order dated 27.09.2019.

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In view thereof, it has been submitted that there was no occasion for the Departmental Promotion Committee to have deducted 10 marks from the bench mark awarded to petitioner.

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Learned counsel appearing on behalf of opposite parties, particularly opposite parties no. 3 & 4 has refuted submissions advanced by learned counsel for petitioner with the submission that paragraph 7 of the Government Order dated 27.09.2019 adverts two warnings being issued by the State (Shasan). It is submitted that the Corporation being a Government Corporation, the word 'Shasan' would include the Managing Director of the Corporation in terms of Rule 2 (g) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 and particularly in view of Rule of 2 (j) thereof which defines the word 'service' to mean public service and post in connection with the affairs of the State of U.P.

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Learned counsel has also adverted to the U.P. State Construction and Infrastructure Development Corporation Limited Service Regulations to submit that Rule 17 (3) thereof clearly indicates that for the purposes of promotion on a Class-I post having pay scale of more than Rs. 18,300/- or more , the criteria is only merit and not even seniority. In terms thereof, he

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has submitted that the doctrine of washing off will not be applicable in the present case where promotion is required to be considered only on the basis of merit and not seniority. He has also adverted to the Government Order dated 17.09.2019 with paragraphs 2 and 7 to submit that for the purposes of promotion, service record of the recommended candidate for the past ten years is required to be taken into consideration which would include the minor penalty and warnings which were issued to petitioner.

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Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that dispute centers around deduction made in the bench mark obtained by petitioner on account of two warnings issued to him by the Managing Director of Corporation as well as the minor penalty imposed upon him vide order dated 21.02.2018. As has already been indicated hereinabove, the warning issued to petiitoner by the State Government on 05.02.2021 already stood expunged by order of State Government dated 30.01.2024 and has not been taken into consideration by the opposite parties themselves.

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A perusal of format 4 dated 05.03.2024 forwarded by the Managing Director of the Corporation recommending name of petitioner for consideration by the Departmental Promotion Committee and awarding him marks of 80.25 clearly indicates the aspect that two warnings have been issued to petitioner by the Corporation and one by the State Government. The format also indicates that warning issued by the State Government has been discarded since it was expunged. It also indicates that the warnings issued by the Corporation have also not been taken into account while awarding marks to petitioner. The note appended thereto also indicates that the provisions of

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Government Order dated 27.09.2019 would govern promotions to be made on the post in question. It has also been indicated that there is no departmental or vigilance inquiry pending against petitioner.

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So far as the question of warnings being issued to petitioner is concerned, paragraph 7 (6) of the Government Order dated 17.09.2023 indicates that despite there being no provision in the Rules of 1999 for issuance of any warnings to an employee, it has been brought to the notice of State Government that such a procedure is still being followed by issuance of warnings to employees. The directions were therefore issued that in cases of promotion, only warnings issued by the State Government (Shasan) shall be taken into consideration and then too only in case adequate opportunity of hearing has been provided to the employee concerned whereafter five marks would be deducted for every such warning.

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As is evident from Format-4 dated 05.03.2024, the Government Order dated 27.09.2019 appears to have been made applicable for purposes of promotion of employees of the Corporation and therefore the aforesaid paragraph 7 (6) would be applicable in the present case.

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The material on record clearly denotes the fact that deduction from petitioner's marks have been effected on account of two warnings being issued to petitioner by the Managing Director of the Corporation.

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Although, learned counsel for opposite parties has adverted to Rule 2 (g) (j) to submit that the Managing Director of the Corporation would come within definition of 'Shasan', the rule in its clear definition denotes otherwise. Rule 2 (g) of the Rules of 1999 clearly adverts to the definition of Government as

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meaning the State Government of Uttar Pradesh. No provision of law has been cited or indicated by learned counsel for opposite parties to indicate that the Managing Director of the Corporation would come within definition of the Government of Uttar Pradesh.

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A perusal of Rule 2 (j) also indicates 'service' to mean public service and post in connection with the affairs of the State of Uttar Pradesh. That by any stretch of imagination cannot be deduced that the affairs of the Government Corporation as defined under Section 617 of Companies Act would come within definition of the affairs of the State of Uttar Pradesh.

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The aforesaid provision also clearly indicates as to when a Corporation registered under the Companies Act can be deemed to be a Government Corporation but still does not indicate that any such Government Corporation would come within definition of the State Government of Uttar Pradesh or that the employees or Managing Director of any such Government Corporation can be included to mean service and post in connection with the affairs of State of Uttar Pradesh, which clearly would involve exercise of sovereign powers of State as per Schedule VII to Article 246 of the Constitution of India.

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In view of aforesaid discussion, the submission of learned counsel for opposite parties that the Managing Director of the Corporation would come within definition of State (Shasan) is hereby rejected.

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In such circumstances, the provision of paragraph 7 (6) of the Government Order dated 27.09.2019 gains significance particularly since the State Government which issued the warning earlier to petitioner stood expunged and the only warnings due to which deductions have been made from

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petitioner's marks have been issued by the Corporation itself.

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In view of aforesaid, it is quite evident that opposite parties have erred in deducting marks obtained by petitioner on account of warning issued by the Corporation.

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So far as the question of the minor penalty dated 21.02.2018 is concerned, learned counsel for petitioner has cited judgment rendered by Hon'ble Supreme Court in the case of Rajasthan State Road Transport Corporation and others versus Babu Lal Jangir, (2013) 10 SCC 551 in which it has been clearly enunciated that after promotion of an employee, adverse entries prior thereto would have no relevance and can be treated as washed off when the Government employee is to be considered for further promotion. The only exception indicated is that the aforesaid theory would be inapplicable where an employee is being assessed for purposes of compulsory retirement.

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In view of the fact that petitioner was visited with the minor penalty vide order dated 21.02.2018 whereafter he was promoted on the post of Superintending Engineer on 16.12.2021 as well as the fact that his service entry in service records was also upgraded on 12.12.2023 and 11.01.2024 to very good from good clearly makes the aforesaid doctrine of washing off applicable in the present facts and circumstances.

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It is also relevant that as per paragraph 7 (5) of the Government Order dated 27.09.2023, it has been provided that an employee who has been visited with a minor penalty would not be considered for further promotion in at least two subsequent Departmental Promotion Committees but in the case of petitioner, he has been promoted subsequent to the minor penalty imposed upon him which clearly denotes the fact that petitioner's case was covered by the aforesaid provision of the

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Government Order and the aforesaid minor penalty was considered by the opposite parties prior to his subsequent promotion on the post of Superintending Engineer and therefore also would loose its efficacy subsequently.

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In view of discussion made hereinabove, it is evident that the opposite parties have erred in declaring to petitioner unsuitable for promotion on the post of Chief Engineer (Civil) by means of recommendation dated 05.07.2024.

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In view thereof, the recommendations of the Departmental Promotion Committee dated 05.07.2024 to the extent it reduces petitioner's marks obtained by petitioner by 10 marks and declaring him unsuitable on that ground is hereby quashed by issuance of a writ in the nature of certiorari. A further writ in the nature of mandamus is issued commanding the opposite party no. 1 to reconstitute a Departmental Promotion Committee for purposes of consideration of promotion to the post of Chief Engineer (Civil) in the Corporation concerned and to consider petitioner's case afresh with regard to same without making any deductions for the two warnings issued to petitioner by the Corporation and the minor penalty dated 21.02.2018.

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Since the recommendations of Departmental Promotion Committee dated 05.07.2024 are said to have already been given effect to with regard to names of other recommended persons, it is further directed that in case petitioner is found eligible for promotion on the post of Chief Engineer (Civil), such promotion would relate back to 05.07.2024.

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Consequently, the petition succeeds and is allowed . Parties to bear their own cost.

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Order Date :- 24.9.2024 Satish

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Digitally signed by :- SATISH KUMAR BHARATI High Court of Judicature at Allahabad, Lucknow Bench

Arvind Kumar Nirmal v. State of U.P. Thru. Prin. Secy. Deptt of Social Welfare Lko. and Another

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Arvind Kumar Nirmal v. State of U.P. Thru. Prin. Secy. Deptt of Social Welfare Lko. and Another

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