State Of Uttarakhand & Others ... vs Shri Ajay Kumar
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Uttarakhand High Court

State Of Uttarakhand & Others ... vs Shri Ajay Kumar on 30 April, 2025

Author: Manoj Kumar Tiwari

Bench: Manoj Kumar Tiwari

                                                                   2025:UHC:3300-DB



    IN THE HIGH COURT OF UTTARAKHAND
               AT NAINITAL
               HON'BLE MR. MANOJ KUMAR TIWARI, J.
                 HON'BLE MR. ASHISH NAITHANI, J


              WRIT PETITION (S/B) No.342 of 2021

State of Uttarakhand & others                                             ...Petitioners
                                     Versus

Shri Ajay Kumar                                                      ...Respondent


Counsel for the State/petitioner         :       Mr. G.S. Negi, learned DAG.


Counsel for respondent                           Mr.   Mukesh     Kumar     Kaparuwan,
                                                 learned counsel.




JUDGMENT :

(PER HON'BLE MR. MANOJ KUMAR TIWARI. J) State has challenged judgment dated 31.03.2021 passed by Uttarakhand Public Services Tribunal, Dehradun in claim petition no.46/DB/2020. By the said judgment, claim petition filed by respondent seeking promotion notionally with effect from 02.12.2011, i.e. the date when juniors to him were promoted as Senior Assistant was partly allowed and competent authority was directed to promote the respondent notionally from 21.09.2015. Paragraphs 10, 11 and 12 of the impugned judgment are reproduced below:-

"10. The petitioner cannot be given notional promotion from the date of promotion of his juniors i.e. 02.12.2011 as the 'censure entry' awarded to the petitioner on 21.09.2010 will figure in the five years' service record preceding this date and render him unfit for promotion from this date. His notional promotion can only be considered after the period of five years.

11. The petitioner deserves to be considered for promotion to the post of Senior Assistant w.e.f. 21.09.2015 notionally with all related service benefits. He also deserves to be considered for further promotions to the posts of Pradhan Sahayak and Administrative Officer subsequently in accordance with the relevant Service Rules, as his juniors have been promoted to these posts. Uttarakhand

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Rajyadheen Sewaon Ke Antargat Lipik Vargeeya Sanvarg Ke Padon Par Paddonatti Hetu Patrata Avadhi Ka Nirdharan (Sanshodhan) Niyamawali, 2015 (annexure 3 to Supplementary C.A.), prescribes that for promotion to the post of Pradhan Sahayak, minimum three years of service as Senior Assistant and at least 10 years of service on subordinate posts is required. Some of the petitioner's juniors got promoted to this post on 23.10.2015. From the post of Senior Assistant, he can be considered for promotion to the post of Pradhan Sahayak only on 21.09.2018 (after three years of deemed working as Senior Assistant), but this period of three years can be suitably relaxed by the Government as similar relaxations have been granted to some other persons junior to the petitioner for considering their promotion. After the petitioner is promoted as Pradhan Sahayak, he can be further considered for promotion to the post of Administrative Officer after minimum three years of service as Pradhan Sahayak according to the above Niyamawali of 2015.

12. On the basis of the above analysis, we hold that the petitioner is entitled to be considered for notional promotion to the post of Senior Assistant w.e.f. 21.09.2015 with all related service benefits and further promotions as detailed above. The respondents are directed to convene a Departmental Promotion Committee (DPC) to consider the promotions of the petitioner as above, within a period of two months from the date of presentation of certified copy of this order. No order as to costs.

2. Learned State Counsel appearing for the petitioner submits that respondent was appointed as Junior Assistant in Commercial Tax Department on 03.01.2006, and next promotional post available to him was Senior Assistant, however, before he could complete qualifying service necessary for promotion, punishment of censure and stoppage of one increment without cumulative effect was imposed upon respondent vide order dated 21.09.2010, for some misconduct, committed by him.

3. Learned State Counsel submits that respondent unsuccessfully challenged punishment order dated 21.09.2010 in departmental appeal, and thereafter, he filed claim petition before Uttarakhand Public Service Tribunal, challenging the punishment order and also the

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order passed by Appellate Authority. He further submits that the learned Tribunal dismissed his claim petition and thereafter he filed Writ Petition (S/B) No.387 of 2016, which was dismissed by the coordinate Bench of this Court vide judgment dated 12.07.2018.

4. Learned State Counsel submits that as per Government Policy, service record of past five years is to be seen at the time of promotion of a Government Servant, since respondent was punished vide order dated 21.09.2010, therefore, respondent became unfit for promotion for a period of five years, commencing from 21.09.2010.

5. Learned State Counsel further submits that certain persons who were junior to respondent were considered and promoted as Senior Assistant between 21.09.2010 to 20.09.2015, however, respondent could not be so promoted due to the effect of punishment imposed upon him vide order dated 21.09.2010. He submits that after dismissal of Writ Petition (S/B) No.387 of 2016, by this Court, respondent again filed a claim petition claiming promotion from the date his juniors were promoted as Senior Assistant i.e. 02.12.2011, and some other reliefs. He submits that learned Tribunal directed for promoting the respondent notionally as Senior Assistant with effect from 21.09.2015 by ignoring the fact that respondent had no vested right to promotion from the date his disqualification for promotion on account of punishment came to an end.

6. Learned State Counsel submits that a government servant has a right to be considered for

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promotion as per the applicable Rules, however, he cannot claim vested right of promotion, that too with retrospective effect. He submits that a person who fulfils requisite qualifications and has rendered the prescribed length of service on the feeder post alone can be considered for promotion and a government servant who is punished for some misconduct, is disqualified for promotion for five years, and such government servant can be considered for promotion only in the next promotion exercise initiated by Department concerned. Thus, he submits that the direction issued by learned Tribunal to notionally promote respondent from that very day when affect of punishment order dated 21.09.2010 ceased to exist, is unsustainable.

7. Learned State Counsel has drawn attention of this Court to Rule 3 (4) of Uttarakhand Procedure for Promotion to State Services (Outside the Purview of Public Service Commission) Service Rules 2013, which provides that affect of punishment order shall last for five years and the concerned government servant will be treated as unfit for promotion for five years from the date of passing of punishment order.

8. Learned counsel for the respondent, however, relies upon Rule 3 (3) of the aforesaid Service Rules, which provides that, if in, four Annual Confidential Reports out of the last five, an employee is rated as "good" or "outstanding", then he shall be treated as fit for promotion.

9. Learned State Counsel submits that Rule 3 (3) of Service Rule does not help the respondent as he was given two minor penalties i.e. censure and withholding of

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one increment without cumulative effect on 21.09.2010 which constitutes adverse material against respondent, and at the time of promotion, service record, including punishment orders passed during last five years has to be seen, and if there is adverse material during the last five years against a Government Servant, then he cannot be considered for promotion.

10. Learned State Counsel has also relied upon Office Memorandum dated 11.06.2003, issued by Additional Secretary, Personnel Department, Government of Uttarakhand, in which it is provided that notional promotion shall be given to a government servant only when his juniors have been promoted by ignoring his claim and notional promotion shall be given from the date of promotion to his junior persons.

11. Learned State Counsel, thus, submits that because of the punishment order, which attained finality, respondent cannot have any grievance against promotion of his juniors in the promotion exercise held between 2011 to 2015. He submits that disqualification attached to respondent was effaced only on 21.09.2015, when five years from the date of passing of punishment order completed. He further submits that respondent was promoted as Senior Assistant in the very next promotion exercise, vide order dated 08.07.2019. He, thus, submits that direction to notionally promote respondent with effect from 21.09.2015, is not supported by any Rule or Government Order and learned Tribunal has not assigned any reason, much less valid reason, for directing the competent authority to promote the respondent notionally with effect from 21.09.2015.

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12. Hon'ble Supreme Court in the case of Union of India & others Vs. K.V. Jankiraman & others", reported in 1991 (4) SCC 109, has summarized the legal position as under:-

"29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of paragraph 3 of the

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said Memorandum. We, therefore, set aside the said findings of the Tribunal."

13. In the aforesaid judgment, Hon'ble Supreme Court has held that an employee has no right for promotion and he has only a right to be considered for promotion and further that to qualify for promotion, the least that is expected of an employee is to have an unblemished service record. It was further observed by Hon'ble Supreme Court in the said judgment that "an employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently".

14. Period of five years during which respondent became ineligible for promotion due to punishment expired on 21.09.2015. Next promotion exercise was thereafter held in the year 2019, and respondent was also promoted as Senior Assistant in the said exercise, therefore the grievance raised by respondent in his claim petition, was without substance. Therefore, direction issued by learned Tribunal to promote respondent as Senior Assistant with effect from 21.09.2015 and also to promote him to next higher posts from particular deemed dates, is unsustainable.

15. We find substance in the contention of learned State Counsel that there is no Rule, law or executive instruction, which can be pressed into service for issuing such direction as was issued in the impugned judgment. Moreover, learned Tribunal has not given any reason, much less valid reason, for allowing respondents claim for promotion as Senior Assistant with effect from 21.09.2015.

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16. In such view of the matter, we set aside the impugned judgment dated 31.03.2021 passed by Uttarakhand Public Services Tribunal, Dehradun in claim petition no.46/DB/2020. The writ petition is accordingly allowed.

MANOJ KUMAR TIWARI. J.

ASHISH NAITHANI, J.

Dt:30th April, 2025 NR/