Ravi Prakash Gupta vs State Of U.P. Thru Addl.Chief ...
2023 Latest Caselaw 7600 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 

 
Case :- WRIT - A No. - 11675 of 2019
 

 
Petitioner :- Ravi Prakash Gupta
 
Respondent :- State Of U.P. Thru Addl.Chief Secy./Labour And Employementandors
 
Counsel for Petitioner :- Sanjay Bhasin,Kshitij Mishra,Ramendra Kumar Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dinesh Kumar Singh,J.

1. Present petition under Article 226 of the Constitution of India has been filed seeking following reliefs:-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the recommendations of the DPC held on 11.05.2018 after summoning it from Opposite Party No.1 and the consequential order of promotion dated 21.05.2018 as is contained in Annexure No.7 to this writ petition.

(ii) Issue a writ, order of direction in the nature of certiorari quashing the recommendations of the DPC held on 28.02.2019 after summoning it from the Opposite Party No.1 and the consequential order of promotion dated 12.03.2019 as is contained in Annexure No.8 to this writ petition;

(iii)...

(iv)...

(v)..."

2. The petitioner got selected in the Combined State Civil Services Examination conducted by U.P. Public Service Commission, and was appointed on the post of Assistant Labour Commissioner on 17.07.1990. He was promoted to the post of Deputy Labour Commissioner in September, 2007, and since then he has been working on the said post. Next promotional post is Additional Labour Commissioner on which the promotion is to be made on merit by Departmental Promotional Committee.

3. Service rules which govern the services of the petitioner are known as "U.P. Labour Services Rules, 1991, framed under proviso of Article 309 of the Constitution of India. As per Rule 5(1) of the Rules, promotion to the post of Additional Labour Commissioner is to be made from amongst substantively appointed Deputy Labour Commissioner through Departmental Selection Committee. As per Rule 17(1), merit is the criteria for promotion to the said post of Additional Labour Commissioner. For making selection on the post of Additional Labour Commissioner, on criteria of merit, Rule 5(2) provides for preparation of eligibility list in accordance with U.P. Eligibility List on posts outside the purview of Public Service Commission Rules, 1986 and candidature of individual incumbent whose names occur in the eligibility list is to be considered by the selection committee, taking into consideration entries in the character roll and other documents.

4. Cadre strength of Additional Labour Commissioner is 6. Out of 6 posts, 3 have been classified as permanent and 3 as temporary. Vide Government Order dated 13.10.2011, 2 of the posts of Additional Labour Commissioner were proposed to be upgraded and to carry the nomenclature of Additional Labour Commissioner Grade-I and remaining 4 posts to carry the nomenclature of Grade- II. As per the said Government Order, post of Additional Labour Commissioner, Grade-I was to be filled up by the promotion through Departmental Selection Committee from amongst substantively appointed Additional Labour Commissioner Grade-II and post of Additional Labour Commissioner Grade-II was to be filled up by promotion through Departmental Promotion Committee from substantively appointed by Deputy Labour Commissioners.

5. Two Departmental Promotion Committees were convened; one on 11.05.2018, which submitted its recommendations on 15.05.2018, and the other was convened on 28.02.2019, which submitted its recommendations on 07.03.2019 for promotion to the post of Additional Labour Commissioner-Grade-II. The petitioner was not shortlisted as he did not fulfil the eligibility conditions. It appears that in the last 10 years, entries of the petitioner for two years have been categorized as "Uttam" (Good) and for the 6 years his entries have been categorized as "Ati Uttam" (Very Good). The petitioner was thereafter given 'Very Good' entries successfully till 2014-15. However, he was downgraded in the year 2015-16 as 'Good'.

6. The petitioner made a representation for upgrading his entries. The department vide order dated 15.11.2019 has upgraded the entry for the year 2015-16, and has given 'very good' entry for the said year in the character roll of the petitioner, however, in respect of the entries for the years 2008-09 and 2009-10, it was said vide order dated 15.12.2019 that the representation in respect of the said entries was not maintainable as in the Government Order dated 29.01.2014 it was provided that entries given in the character roll could be entertained for the year 2012-13 and thereafter. In view thereof, representation of the petitioner is in respect of upgrading his entries for the year 2008-09 and 2009-10 came to be rejected.

7. Ms. Ishita Bhasin holding brief of Sri Kshitij Mishra, learned counsel appearing for the petitioner submits that the Supreme Court in its judgment in the case of Dev Dutt v Union of India (2008) 8 SCC 725 in para 36 has clearly held that the entries in the character roll of an employee are to be communicated to the concerned employee inasmuch as character roll of an employee is a very important document for promotion etc., of an employee. She further submits that if the entries for the years 2008-09 and 2009-10 were not communicated to the petitioner, his representation should not have been rejected relying on the same Government Order.

Relevant para of the said judgment would read as under:-

"36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no rule/G.O. requiring communication of the entry, or even if there is a rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders."

8. Sri Sanjay Sarin, learned Additional Chief Standing Counsel appearing for the State submits that the petitioner's entries were not adverse, therefore, they were not communicated. 'Good', 'Very Good' or 'Outstanding' cannot be said to be an adverse entry. It is also submitted that it is not the case of the petitioner that the petitioner was downgraded in the year 2008-09 and 2009-10. If the petitioner was downgraded, then Department was bound to communicate the entries to the petitioner. Since the entries of the petitioner were not downgraded, the same were not communicated to him. This submission of Sri Sanjay Sarin, learned A.C.S.C. is contrary to the judgment of the Supreme Court in the case of Dev Dutt (supra).

9. In view thereof, I dispose of this petition with a direction to the respondents to decide the representation of the petitioner in respect of the entries in his character roll for the years 2008-09 and 2009-10 on merit, and thereafter if the petitioner meets the eligibility criteria for promotion to the post of Additional Commissioner Grade-II, convene a Departmental Promotional Committee. Such exercise should be carried out within a period of 2 months from today.

(Dinesh Kumar Singh, J.)

Order Date :- 16.3.2023/prateek