State Of Uttarakhand another v. Ravindra Kumar

Judgment

1. Respondent approached Ut t arakhand Public Services Tribunal, Dehradun by filing Claim Pet it ion No. 73/ DB/ 2019. I n t he said claim pet it ion, he sought t he following reliefs: - ( i) The im pugned order Annexure-A1 dat ed 18.2.2019 illegal, against m ay kindly be declared void, t he fundam ent al, const it ut ional, civil pet it ioner, rules, orders and principles of nat ural j ust ice and m ay kindly be quashed and set aside. r ight of ( ii) The Hon’ble Tribunal m ay k indly be direct ed t o t he Respondent s t o prom ot e t he pet it ioner t o t he post of Head Operat or w.e.f. 16.7.2013 t he dat e of prom ot ion of his j uniors and t o pay pet it ioner salary and ot her benefit s of 16.7.2013 t oget her wit h int erest t hereon @ 10% per annum from t he dat e of accrued t ill t he act ual dat e of pay m ent t o t he pet it ioner. t he prom ot ed post

2. Learned Tribunal allowed t he claim pet it ion and direct ed t he Aut horit ies t o grant prom ot ion t o respondent not ionally, as Head Operat or w.e.f.

16.07.2013 and act ually from 18.11.2016. Operat ive port ion of t he im pugned j udgm ent is reproduced 1 below: - “ 12. Argum ent s have been advanced by bot h t he sides about whet her t his censure ent ry should have been considered, what should have been it s effect , et c. Aft er passing depart m ent al Grade- I I exam inat ion, t he pet it ioner was for prom ot ion ot herwise. However, t he pendency of inquiry and subsequent m inor penalt y im posed upon him , cannot be considered t o be absolut ely effect - less in affect ing his prom ot ion. This Tribunal observes t hat t he fair t hing would be t o grant prom ot ion t o t he pet it ioner act ually from t he dat e of effect of censure ent ry was over i.e., 18.11.2016 and not ionally from t he dat e j uniors were prom ot ed w.e.f. 16.07.2013, wit hout giving him any benefit of addit ional salary et c. for t he int ervening period. He shall be ent it led for pay t he prom ot ed post w.e.f. 16.07.2013 and subsequent ly annual increm ent s and t his period shall also be count ed as qualifying service period, on t he prom ot ed post for t he next higher prom ot ion. fixat ion on

13. The above decision places t he t hings in t heir proper fut ure prom ot ion t he pet it ioner ’s perspect ive, prospect s are not alt ered and he suffers adequat ely for delay in passing t he Grade- I I exam inat ion and t he m inor penalt y of censure ent ry.

14. Order in t erm s of Para 12 of t he j udgm ent .

15. The claim pet it ion t hus st ands disposed of. I n t he circum st ances, no order as t o cost s.”

St at e has challenged t he said j udgm ent m ainly on t he ground t hat confirm at ion on t he feeder post of Assist ant Operat or was an essent ial condit ion for prom ot ion t o t he post of Head Operat or, and for confirm at ion, one is required t o clear a Grade- I I Exam inat ion; however, respondent was neit her confirm ed on t he dat e when prom ot ion exercise was held in July, 2013 and he cleared Grade I I Exam inat ion only on 14.10.2013, t herefore, he was not eligible t o be considered for prom ot ion as Head Operat or in t he prom ot ion exercise held in t he m ont h of July, 2013. I t is furt her cont ended t hat punishm ent censure was im posed 2 respondent on 18.11.2013 which at t ained finalit y and due t o t he effect of said punishm ent , respondent was rendered unsuit able for prom ot ion for a period of t hree years i.e. upt o 17.11.2016.

4. Per cont ra, Ms. Prabha Nait hani, learned counsel appearing for t he respondent subm it s t hat passing of Grade- I I Exam inat ion was not necessary for prom ot ion t o t he post of Head Operat or and learned Tribunal was j ust ified in allowing t he claim pet it ion as prom ot ion was denied t o her client only on t he ground t hat he had not cleared Grade- I I Exam inat ion. She furt her subm it s t hat punishm ent of censure was im posed upon t he respondent only on 18.11.2013, while t he prom ot ion exercise, in which respondent was superseded, was held in t he m ont h of July, 2013 and Juniors persons were prom ot ed on 16.07.2013.

5. The m ode of recruit m ent and ot her condit ions of service of Assist ant Operat or and Head Operat or are governed by St at ut ory Rules known as “ Ut t ar Pradesh Police Radio Subordinat e Service Rules, 1982”. The sam e are enclosed as Annexure- 2 t o t he writ pet it ion.

6. Rule 5 t hereof lays down t he source of recruit m ent t o different post s and Clause 3 t hereof provides t hat only perm anent Assist ant Operat or would be eligible for prom ot ion t o t he post of Head Operat or.

7. Rule 21 of t he said Rules deals wit h 3 ‘confirm at ion’ provides t hat successful com plet ion of prescribed t raining is necessary for confirm at ion of a m em ber of service.

8. Rule 19 of t he aforesaid Rules deals wit h t raining and provides t hat a person appoint ed t o t he service shall be required t o undergo such t raining as is prescribed. I t also refers t o t raining course prescribed in Appendix-A. Ent ry No. 6 of Appendix-A provides t hat a person appoint ed as Assist ant Operat or will be required t o undergo four m ont hs Operat or Training Course Grade- I I and upon com plet ion of t raining he will have t o clear Operat or Exam inat ion Grade- I I .

9. A conj oint reading of t he aforesaid Rules indicat es t hat passing of Operat or Exam inat ion Grade- I I is necessary for confirm at ion of a person appoint ed as Assist ant Operat or. Rule 5( 3) unequivocally provides t hat only a perm anent Assist ant Operat or would be eligible for prom ot ion as Head Operat or. Since respondent was not confirm ed on t he post of Assist ant Operat or, as on 09.07.2013, when DPC was held, and even on 16.07.2013, when prom ot ion order was issued, t herefore, t he grievance raised by respondent , regarding his supersession t he m at t er of prom ot ion, was wit hout any basis.

10. The next prom ot ion exercise was init iat ed in t he m ont h of Decem ber, 2013 and m eet ing of t he Depart m ent al Prom ot ion Com m it t ee was held on

24.12.2013; alt hough by t hat t im e, respondent had 4 cleared Operat or Grade- I I Exam inat ion and his service was also m ade perm anent , however, during t he int erregnum , punishm ent of censure was im posed upon him on 18.11.2013. Consequent t o t he punishm ent of censure, respondent was rendered unsuit able for prom ot ion for a period of t hree years.

11. I t is not in disput e t hat respondent was t hereaft er considered for prom ot ion as Head Operat or in t he DPC held on 10.03.2017 and order of prom ot ion was issued in his favour on

19.03.2017; t hus, on t he dat e, he filed claim pet it ion, he was prom ot ed as Head Operat or. Aft er he was prom ot ed as Head Operat or, respondent m ade a represent at ion t o t he Com pet ent Aut horit y st aking claim for not ional prom ot ion from t he dat e his j uniors were prom ot ed in t he prom ot ion exercise held in July, 2013. His represent at ion was rej ect ed and he t hen approached t he Tribunal challenging t he rej ect ion order and sought ot her reliefs also.

12. Perusal of t he im pugned j udgm ent , rendered by learned Tribunal, reveals t hat t he order dat ed 18.02.2019 passed by Superint endent of Police ( Wireless Com m unicat ion) , wherein reasons, for not accept ing respondent ’s claim for not ional prom ot ion were given, was not considered and discussed; alt hough respondent had challenged t he said rej ect ion order in his claim pet it ion, however, t he rej ect ion order was not set aside.

13. Learned St at e Counsel subm it s t hat 5 learned Tribunal went ast ray in holding t hat respondent was ent it led t o not ional prom ot ion from

16.07.2013. He subm it s t hat t he reasoning given by learned Tribunal, for allowing t he claim of respondent , is incoherent . He invit ed our at t ent ion t o t he discussion m ade in para 10 of t he im pugned j udgm ent , which is reproduced below: - “ 1 0 ….. The first quest ion t hat arises is, whet her aft er passing t he exam inat ion, if t here was not hing else against him , could he have been prom ot ed from t he earlier dat e i.e., 16.07.2013, t he dat e from which his j uniors were prom ot ed. While t he relevant Rules do not prescribe t he passing of t his ex am inat ion as a m andat ory condit ion t he requirem ent of passing exam inat ion and subsequent confirm at ion of t he person on t he lower post cannot be ignored by any DPC. However, a view can be t aken t hat aft er t he exam inat ion has been passed, t he prom ot ion can be given not ionally from t he previous dat e when t he j uniors have been prom ot ed and act ually aft er t he dat e t he exam inat ion has been passed.” for grant ing prom ot ion,

14. Learned St at e Counsel furt her subm it s t hat t here was valid reason for not prom ot ing t he respondent in t he exercise held in July, 2013, as he was not eligible for prom ot ion as per Rules at t he relevant point of t im e. He subm it s t hat in next prom ot ion exercise held in Decem ber, 2013, he was eligible for prom ot ion, however, on account of punishm ent of censure, im posed in t he m eant im e, he becam e unfit for prom ot ion as t he crit erion for prom ot ion is seniorit y, subj ect t o rej ect ion of unfit .

15. We find subst ance in t he subm ission m ade by learned St at e Counsel. A person, who is not eligible for prom ot ion as per Rules, cannot be considered for prom ot ion, even t hough his j uniors are considered and prom ot ed in t he said prom ot ion 6 exercise. ‘Eligibilit y’ and ‘Seniorit y’ are t wo different concept s and a person, even t hough senior, can be passed over in t he m at t er of prom ot ion, if he is not eligible as per Rules. This m at erial aspect appears t o have been overlooked by learned Tribunal.

16. For t he aforesaid reasons, we are sat isfied t hat t his is a case in which int erference would be warrant ed. Accordingly, t he writ pet it ion is allowed. I m pugned j udgm ent dat ed 06.05.2020 passed by learned Tribunal is set aside. ( Su b h a sh Up a d h y a y , J.) ( M a n o j K u m a r Ti w a r i , J.)

09.07.2025 Aswal NITI RAJ SINGH ASWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802 a3a08b08d1369512ea30f3, postalCode=263001, st=UTTARAKHAND, serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C2 2DACF4F4610C1FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL 7