Kashmiri Lal v. State of Haryana & Ors.

CORAM: HON'BLE MR.JUSTICE RANJIT SINGH

Whether Reporters of local papers may be allowed to see the judgment?

To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Surender Lamba, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. ***** RANJIT SINGH, J. Can an employee be denied a promotion on the ground that he is under the currency of punishment, when such punishment was taken into consideration while grading him fit for promotion? This is a question, which arise for consideration in this case. CIVIL WRIT PETITION NO.128 OF 2010 :{ 2 }: The petitioner is working as a Conductor in Haryana Roadways and is in the service since July 1971. He is presently doing the work of Cashier. His case for promotion to the post of Sub Inspector was considered on 7.8.2009 and he was graded fit for promotion. The petitioner, however, has not been promoted and is not being relieved, for which he has made repeated requests. The petitioner was informed on 21.8.2009 that he is under the currency of punishment pertaining to the years 1993 and 1996 and hence, he can not be relieved from Gurgaon to join his promoted post. The petitioner is, thus, before this Court through the present writ petition. It is not denied that the petitioner was promoted as Sub Inspector on 7.8.2009 along with 584 other persons. As per the respondents, it is mentioned in the common order of promotion as issued that the concerned General Manager shall verify before relieving/posting the persons on promotion that no disciplinary case under Rule 7 is pending against them. Condition No.6 as contained in the order is as under:-

That the official should not be relieved/joined on promotion post during the currency of the stoppage of grade increment(s) as per instructions issued vide Chief Secretary to Govt. of Haryana vide letter dated 31.5.2006 as circulated to all G.M's vide this office Endst. No.1935- 1957/SA/E-4 dated 5.7.2006 and the relevant record of such officials, if any may be sent to this office.

It is in this context that the question as formulated would arise for consideration. It is seen that punishment of stoppage of two increments CIVIL WRIT PETITION NO.128 OF 2010 :{ 3 }: without cumulative effect was ordered on 12.7.1993 and one increment without cumulative effect was stopped through order dated

25.4.1996. As per the petitioner, the effect of these two orders is long over and, thus, there is no reason or cause to deny the promotion to the petitioner, for which he has been graded fit. The respondents, in their reply, also make reference to the orders pertaining to the years 1993 and 1996, which are statedly pending and, thus, would justify their action in not relieving/permitting the petitioner to join on the promoted post. The respondents, however, would forthrightly admit that the petitioner was promoted to the post of Sub Inspector on 7.8.2009 but at the same time, would refer to the condition imposed in the promotion order to justify their stand. The respondents, thus, would urge that the petitioner has not been rightly relieved. I have not been able to appreciate the line of reasoning adopted by the respondents to justify the denial of promotion to the petitioner. The case set up is not that the petitioner was not required to be considered for promotion due to currency of any punishment.

Indeed consideration for promotion could not have been denied on the ground of currency of punishment. It is also not the case that the promotion of the petitioner was in any manner done without taking into consideration the punishments that were imposed on him though long ago in the years 1993 and 1996. Once the petitioner was considered by taking into account the punishments and was graded fit for promotion, he can not be denied his due promotion after having been graded fit despite the punishments. It may be one thing to say that the petitioner is not fit for promotion as he was punished CIVIL WRIT PETITION NO.128 OF 2010 :{ 4 }: but it is quite unjustified to urge that he will not be promoted despite being fit, as he is under the currency of punishments. The course adopted and canvassed apparently is not legally justified. The action not to relieve the petitioner or to deny him his legal right for promotion, once he has been graded fit for the same, can not be accepted.

Right for consideration for promotion is a constitutionally guaranteed right. The person may not have a right to seek promotion but right for consideration for promotion is a valuable constitutionally guaranteed right available to an employee and is well protected under Article 16 of the Constitution of India. It is now well settled that the words `employment` and `appointment' are wide enough to include the matter of promotion. If any right of consideration is denied, it will lead to denial of equal opportunity in matter of public employment. Once the name of the petitioner was considered for promotion and has been found fit for such promotion, denial of promotion thereafter on the ground that he is under the currency of punishment, which indeed was taken into consideration while considering the case for promotion, would in a fact lead to denial of equal opportunity to the petitioner in the matter of public employment.

By taking into consideration the punishment imposed, the petitioner could have been found unfit for promotion but that being not the position, denial of promotion after grading him fit, would certainly impinge upon his constitutional right of equality in the matter of public employment. The action of the respondents in denying promotion to the petitioner on the ground that he is under the currency of punishment, thus, can not be sustained being unjustified under law. CIVIL WRIT PETITION NO.128 OF 2010 :{ 5 }: How the petitioner is under the currency of punishments imposed in 1993 and 1996 of stoppage of increments without cumulative effect is also not explained. The writ petition is, therefore, allowed. Directions are issued to the respondents to relieve the petitioner to join on his promoted post immediately. The petitioner shall also be entitled to all the consequential benefits arising out of the promotion order. September 14, 2010 khurmi ( RANJIT SINGH ) JUDGE