The Uttarakhand High Court recently comprising of a bench of Justice Manoj Kumar Tiwari observed that adverse report against an employee, which is not communicated to him, cannot be relied upon by the employer to deny promotion to a government servant in view of Rule 5 of "Uttarakhand Government Servants (Disposal of Representation against Adverse Annual Confidential Report and Allied Matters), Rules 2002. (Veer Singh Yadav v State of Uttarakhand & others.)
Facts of the case
Petitioner is serving as Assistant Teacher in a Government Primary School in District Udham Singh Nagar. By means of this writ petition, he has sought the following reliefs:-
“a) Issue a writ order or direction in the nature of Certiorari quashing the impugned order (Annexue-5) issued by District Education Officer Udham Singh Nagar.
b) Issue a writ order or direction in the nature of Mandamus commanding and directing the respondents to consider the case of petitioner for promotion to the post of Head Master Primary School w.e.f. 28.10.2021 i.e. the date when similarly situated and junior incumbents to the petitioner have been extended promotion.”
The impugned order has been passed by District Education Officer (Elementary), Udham Singh Nagar. By the said order, petitioner’s claim for promotion to the post of Headmaster in Government Primary School has been rejected on following grounds:- A) An adverse entry was given to him for the reporting year 2020-21; and B) Departmental Enquiry is pending against him.
Learned counsel for petitioner submitted that no adverse entry was ever communicated to petitioner in his entire service career, therefore, the statement made in the impugned order that petitioner was given adverse entry for reporting year 2020-21 is incorrect. He further submitted that no charge-sheet has been issued to petitioner till date, therefore, the statement that Departmental Enquiry has been initiated against him, is also incorrect. Thus according to him, denial of promotion to him is without any reason or justification.
Courts Observation and Judgment
The bench observed, “Un-communicated adverse report cannot be relied upon to deny promotion to a government servant in view of Rule 5 of “Uttarakhand Government Servants (Disposal of Representation against Adverse Annual Confidential Report and Allied Matters), Rules 2002. In view of aforesaid statutory provision, an adverse entry, which has not been communicated to petitioner, cannot be relied upon for denying promotion to him.”
The bench further observed, "it is a settled position in law that departmental/disciplinary enquiry is initiated when a charge-sheet is issued against a person. In the present case, there is no charge sheet issued to the petitioner, therefore, it cannot be said that disciplinary enquiry is initiated or pending against him.
Since criteria for promotion is seniority subject to rejection of unfit, therefore a senior teacher can only be passed over, if he is found to be unfit for promotion. The material brought on record is not sufficient for holding petitioner unfit for promotion."
The bench allowing the petition remarked, "In such view of the matter, denial of promotion to petitioner, on the grounds mentioned in the impugned order, cannot be sustained in the eyes of law.
Accordingly, writ petition is allowed and the impugned order dated 10.03.2022 is quashed. The Competent Authority is directed to re-consider petitioner’s claim for promotion, as per law, within six weeks from the date of production of certified copy of this order."
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