High Court | Courts & Cases

Judgment

1. The instant intra-court appeal has been preferred against the judgement of learned Single Judge dated 19.09.2023 in Writ-A No. 11757 of 2023 filed by the non appellant (hereinafter referred to as the 'petitioner'). The following reliefs were claimed in the writ petition: "A. issue a writ, order or direction in the nature of Mandamus directing the respondents to promote the petitioner on the post of Deputy Commissioner (State Tax), from the date when his juniors have been promoted w.e.f. 27.06.2016. B. issue a writ, order or direction in the nature of Mandamus directing the respondents to pay the consequential benefits of the promotion on the post of Deputy Commissioner (State Tax). C. issue a writ, order or direction in the nature of Mandamus directing the respondents to fix the salary of the petitioner in the IInd ACP Grade w.e.f. 01.12.2014 and to pay the arrears accordingly."

2. The learned Single Judge has allowed the writ petition and has issued the following directions: "14. The respondents are directed to accord the petitioner all service benefits including the pay fixation and grade pay under the Assured Career Progression Scheme as and when it became due in view of the fact that Tribunal had already set aside the order of punishment with all consequential benefits. Petitioner shall also be accordingly given promotion from the post of Assistant Commissioner, State Tax to the post of Deputy Commission, State Tax w.e.f. 27.06.2016 when his juniors were promoted as such.

15. The appropriate order shall be taken by the departmental promotion committee as may be permissible in law within a period of sixty days from the date of production of certified copy of this order." 1

The facts of the case relevant for disposal of the instant appeal, are as follows:- (a) The petitioner, while he was working as Assistant Commissioner (Sales Tax), Chandauli, was by order dated 16.12.2020, awarded punishment of withholding of two increments with cumulative effect. The petitioner challenged the said order by means of Claim Petition No. 103 of 2021 before the State Public Services Tribunal, Lucknow. The Tribunal vide order dated 01.11.2021 allowed the claim petition and quashed the punishment order dated 16.12.2020 and directed for grant of all consequential benefits, of which the petitioner was deprived of, as a result of the punishment order. (b) The State challenged the order of the Tribunal by means of Writ Petition No. 7316 of 2023 and although, the said writ petition was entertained and is pending, no interim order was granted in favour of the State. Consequently, the order of the Tribunal directing grant of all consequential benefits, is effective and enforceable. (c) The petitioner, in the meanwhile, filed Writ-A No. 11757 of 2023 for the reliefs stated above. The writ petition has been allowed by learned Single Judge by the impugned judgement, and the State has been directed to promote the petitioner from the post of Assistant Commissioner (Sales Tax) to the post of Deputy Commissioner (Sales Tax) w.e.f. 27.06.2016, the date when his junior was promoted as such.

4. Sri Rahul Agarwal, learned Additional Advocate General appearing on behalf of the State (appellants), points out that in 2 compliance of order of the Writ Court dated 19.09.2023, the Departmental Selection Committee considered the name of the petitioner for notional promotion. The Departmental Selection Committee has granted notional promotion to the petitioner on the post of Deputy Commissioner since 10.07.2017, the date when another junior of the petitioner, Mithlesh Kumar Mishra was promoted, subject to the decision of pending Writ-A No. 7316 of 2023. He has invited our attention towards a government order dated 17.05.2025 issued in this regard, which indicates that the petitioner was promoted to the post of Deputy Commissioner, Sales Tax on notional basis w.e.f. 10.07.2017 against a supernumerary post created for the period 10.07.2017 to 21.10.2024 but he would not be entitled to past salary on the post of Deputy Commissioner on the principle of no work - no pay. It is submitted that the date from which promotion was to be granted should have been left to the discretion of the Departmental Selection Committee and the learned Single Judge erred in directing grant of promotion to the petitioner from a particular date. In support of the said submission, it is urged that in the past, the petitioner was granted a censure entry, by order dated 13.04.2015. The petitioner challenged the same by filing Claim Petition No. 1066 of 2016 before the State Public Services Tribunal, U.P., Lucknow. The Tribunal dismissed the claim petition vide order dated 24.04.2017. The censure entry and the order of Tribunal were challenged by the petitioner by filing Writ-A No. 21709 of 2017 and in the said writ petition, the petitioner prayed for specific direction for being granted promotion as Deputy Commissioner, Commercial Tax 3 with all consequential benefits w.e.f. 27.06.2016. Although, the said writ petition was allowed by this Court by judgement dated 06.10.2021 and the censure entry was quashed but the relief for promotion w.e.f.

27.06.2016 was not granted. Thus, according to him, the petitioner could not have sought the same relief in the present writ petition nor the learned Single Judge could have granted the said relief. It is further submitted that the Departmental Selection Committee, while considering the petitioner for promotion on the post of Deputy Commissioner (Sales Tax), did not find him suitable for promotion in the selection year 2015- 16 in view of censure entry dated 13.04.2015. The Departmental Selection Committee considered it appropriate to grant promotion to the petitioner in the next selection year i.e. 2016-17. Thus, the main thrust of argument is only in respect of the date fixed by learned Single Judge for grant of promotion to the petitioner and not to the direction to consider him for promotion.

5. Sri Kushmondeya Shahi, learned counsel for the petitioner, on the other hand, submits that the previous writ petition of the petitioner (Writ- A No. 21709 of 2017) was allowed by judgement dated 06.10.2021. The Writ Court quashed the censure entry and also directed that the petitioner would be considered for promotion, if the subsequent annual confidential reports were not against him. The order of punishment dated

16.12.2020 was set aside by the Tribunal and the petitioner was held entitled to all consequential benefits. When inspite of the said directions, the State did not convene the Departmental Selection Committee and failed to grant the consequential benefits, the petitioner was left with no 4 other remedy but to file the present writ petition giving rise to the instant appeal. Once it is not disputed that his junior was promoted w.e.f.

27.06.2016, the Writ Court was justified in granting the reliefs. The instant appeal is only an attempt to escape the consequences of non- compliance of the order of the Writ Court and deserves to be dismissed.

6. We have considered the rival submissions and also perused the material placed by the appellants along with memo of appeal.

7. As noted above, the challenge to order of learned Single Judge is to the extent to which a specific date i.e. 27.06.2016 has been fixed for promotion of the petitioner. Learned Single Judge has extracted his previous order dated 20.07.2023, which records that in the list of 89 officers of the rank of Assistant Commissioners, the name of the petitioner was at Sl. No. 2, with seniority No. 2104. The said fact has not been disputed before us by the appellants. In the Government Order dated 17.05.2025 issued by State Government, to comply with the order of learned Single Judge, it is mentioned in paragraph-8 that in selection year 2015-16, the Departmental Selection Committee considered the petitioner as well as other persons including his junior, Virendra Narayan Sharma (seniority no. 2104A). However, it did not find the petitioner suitable for promotion in view of adverse entry dated 13.04.2015 and consequently, granted promotion to his junior, Virendra Narayan Sharma (seniority no. 2104A). In paragraph-9, it is stated that in the selection year 2016-17, the petitioner was again considered for promotion, but was again not found suitable. In paragraph-7 of the affidavit of Additional Chief Secretary, Sales Tax, filed in the writ petition, it is 5 admitted that the Departmental Selection Committee again considered the petitioner for promotion in the meeting held on 27.07.2021 for selection year 2021-22 and classified him under the "ineligible" category. In paragraph-11, it is stated that the Departmental Selection Committee convened for considering the candidature of petitioner for promotion in compliance of order of learned Single Judge, did not find the petitioner suitable for promotion from 27.06.2016, as at the relevant time, the censure entry was effective. The Departmental Selection Committee, after considering entire aspects, decided to grant promotion to the petitioner in selection year 2016-17 from 10.07.2017, the date when his another junior, Mithlesh Kumar Mishra was promoted.

8. It is evident from the facts narrated in the Government Order dated 17.05.2025 that the Departmental Selection Committee found the petitioner suitable for promotion from back date i.e. 10.07.2017 corresponding to selection year 2016-17 but not the selection year 2016- 17 solely on the ground that at that time there was censure entry dated

13.04.2015 against the petitioner. Concededly, the adverse entry was quashed by this Court vide its order and judgement dated 06.10.2021 in Writ-A No. 21709 of 2017 and while quashing the same, the respondents were specifically directed to consider the petitioner for promotion, if annual confidential reports of the subsequent years were not against him.

9. The Government Order dated 17.05.2025 granting promotion to the petitioner does not state about any other adverse material against the petitioner except censure entry. It is true that an employee only has a 6 right to be considered for promotion and the grant of actual promotion is the domain of Departmental Selection Committee, however, in the instant case, as noted, there was already direction by this Court in previous writ petition of the petitioner being Writ-A No. 21709 of 2017 to consider the petitioner for promotion. Again there was an order dated

01.11.2021 by State Public Services Tribunal, Lucknow in Claim Petition No. 103 of 2021 quashing the punishment order and directing grant of all consequential benefits to the petitioner. Despite these two directions, the petitioner was not considered for promotion solely on account of pendency of Writ-A No. 7316 of 2023 filed by the State challenging the order of Tribunal dated 01.11.2021, wherein there was no stay in favour of the State.

10. In such circumstances, we find no error in the discretion exercised by learned Single Judge in entertaining the writ petition. The Departmental Selection Committee while considering the petitioner's suitability for promotion in the selection year 2016-17 considered him suitable, as there was no adverse material against him. The same was also the position for selection year 2015-16 but for the said year, the promotion was denied observing that there was adverse entry in existence. Evidently, the stand is self contradictory and ex-facie unacceptable. Once the censure entry was quashed, it stood effaced, even for the selection year 2015-16. The immediate junior of the petitioner was admittedly promoted in the selection year 2015-16 and in absence of any adverse material against the petitioner during said selection year, we find that the decision of the State not to promote him in the said 7 selection year, has no legal semblance and appears to be a result of arbitrary exercise of power. Consequently, we decline to interfere with the order of learned Single Judge.

11. As a result of forgoing discussions, we find no merit in the instant appeal. It is accordingly, dismissed. (R.M.N. Mishra, J.) (Manoj Kumar Gupta, J.) Order Date :- 3.7.2025 8