JUDGMENT
M. Katju, J.
1. This writ petition has been filed against the impugned order dated 13.12.2001, Annexure-12 to the writ petition rejecting the representation of the petitioner claiming promotion to the post of Principal Grade II. The petitioner has also prayed for a mandamus directing the respondents to consider him for the post of Principal from the date from which the junior persons to him had been promoted.
2. In this case on 15.1.2002, learned standing counsel was granted three weeks time to file counter-affidavit. Thereafter on 8.4.2002 one month’s time was allowed to file counter, and ultimately on 8.5.2002 three weeks and no more time was allowed to file counter-affidavit. However, no counter-affidavit has been filed so far, and hence we are presuming the allegations in the petition to be correct.
3. It is alleged in paragraph 3 of the petition that on the basis of the selection made by the U. P. Public Service Commission, Allahabad, the petitioner was selected and appointed Foreman vide order dated 15.12.1990. A true copy of the same has been annexed as Annexure-1 to the petition. In pursuance of the said order, the petitioner joined as Foreman and is presently working as Foreman/Karyadeshak at Industrial Training Institute, Karaundi, Varanasi.
4. The petitioner’s appointment was made on a substantive post and he was on a probation period of two years. His work and conduct was good and he was confirmed w.e.f. 22.12.1992 vide Annexure-2 to the writ petition.
5. In April, 1995, a State Level Seniority List of Foreman was prepared in which the name of the petitioner found place at serial No. 58. In the same Seniority List, the names of Sri Awadhesh Kumar Srivastava and Krishna Kant Lal were mentioned at serial Nos. 59 and 60 respectively vide Annexure-3 to the writ petition. Later on in the year 1998, another seniority list was prepared in which the names of the petitioner found
place at serial No. 48 while on the other hand, the names of Sri Awadhesh Kumar Srivastava and Krishna Kant Lal were mentioned at serial Nos. 49 and 50 respectively vide Annexure-4 to the writ petition.
6. It appears that on 23.4.2002, another State Level Seniority List was prepared by the respondents in which the petitioner was at serial No. 29, but the date of confirmation of the petitioner w.e.f. 22.12.1992 was not mentioned though the names of Awadhesh Kumar Srivastava and Krishna Kant Lal who were junior to the petitioner were shown below him in the said seniority list dated 23.4.2002 vide Annexure-5 to the writ petition.
7. The petitioner made representation to the Principal of the college as well as respondent No. 2 and the Principal in turn wrote a letter to respondent No. 2 on 10.8.2001 in which it was stated by the Principal that the petitioner had been confirmed as Foreman on 22.12.1992 and, therefore, the date of confirmation which had been left out in the seniority list may be noted therein. A true copy of the letter dated 10.8.2001 written by the Principal of the college to respondent No. 2 has been annexed as Annexure-6 to the writ petition. However, strangely enough, the Director, Training and Employment, U. P., Lucknow, proceeded to pass an order on 28.9.2002 confirming the petitioner on the post of Foreman from the date of issuance of the said order. True copy of the said order has been annexed as Annexure-7 to the writ petition.
8. The petitioner has alleged in paragraph 13 of the petition that he had already been confirmed earlier on 22.12.1992 and this fact has been mentioned in the earlier seniority list which was published by the Department and specific letter was sent by the petitioner in this regard. Moreover, persons appointed after the petitioner and who are much junior to him were confirmed in the year 1995 and hence, there was no justification in issuing the order of confirmation to the petitioner with effect from
28.9.2001. A true copy of the covering letter dated 3.11.2001 and representation dated 24.10.2001, are annexed as Annexures-8 and 9 to the petition. The petitioner has alleged that there are several posts of Principal in the Directorate of Training and Employment, U. P., Lucknow, which are lying vacant. It is alleged that petitioner is fully qualified for this post. 50% of the total number of posts of Principal are to be filled up by way of promotion from amongst the Foreman on the basis of their seniority. Remaining 50% of the posts are to be filled up by way of direct recruitment through U. P. Public Service Commission. For being eligible for the post of Principal, a Foreman should have to his credit 5 years service as Foreman. The petitioner has completed much more than that and hence, he is qualified.
9. The Departmental Promotion Committee comprising of the Secretary of Labour Department, U. P., Lucknow, Director, Training and Employment, U. P., Lucknow, and a member of the U. P. Public Service Commission met in the first week of August, 2001, for considering the case of promotion of the candidates who were working as Foreman. The persons junior to the petitioner were considered and promoted as Principal by the aforesaid Departmental Promotion Committee, but due to the fact that the date of confirmation of the petitioner had not been mentioned in the Gradation List, his name was not considered.
10. The petitioner hence filed a Writ Petition No. 32865 of 2001 which was disposed of with the direction that petitioner should make a representation to the concerned authority which should be decided by the authority concerned within two months. That representation has been rejected by means of order dated 13.12.2001. True copy of the same has been annexed as Annexure-12 to the writ petition. In the order dated 13.12.2001, it has been stated that the petitioner was not a confirmed Foreman on the date when the Departmental Promotion Committee met for considering the promotions. It
is further stated that when the matter of confirmation of the petitioner and his juniors were considered in the year 1995, the petitioner’s case for confirmation could not be considered, as his service record was not available. On these two grounds, the petitioner’s representation has been rejected.
11. In our opinion, the order dated 13.12.2001, is clearly arbitrary and illegal, while rejecting the petitioner’s representation, the respondent No. 2 has not considered the letter dated 4.9.1998, Annexure-2 to the writ petition informing the petitioner that his date of confirmation is 22.12.1992. The respondent No. 2 has also not considered the seniority list of 1998, Annexure-4 to the writ petition and the letter of the Principal dated 10.9.2001, Annexure-6 to the petition, which mentions that the petitioner, was confirmed on 22.12.1992. The allegations in the writ petition that petitioner was confirmed on 22.12.1992 have not been controverted. Since no counter-affidavit has been filed, hence also, we have to accept that petitioner was confirmed on 22.12.1992, since these allegations are unrebutted and are also supported by documents which are Annexures-2, 4 and 6 to the writ petition.
12. Hence, we come to the conclusion that petitioner was confirmed on 22.12.1992 and he was thus clearly entitled to be considered for promotion as Principal. The writ petition is, therefore, allowed.
13. Respondents are directed to hold Departmental Promotion Committee for considering the petitioner for the post of Principal within a month from the date of production of this judgment in the light of observations made in this judgment and treating him to be confirmed on 22.12.1992. The petitioner if promoted, will be promoted retrospectively from the date when his juniors were promoted and he will be given salary and arrears with interest @ 10% from the date he is promoted till the date of actual promotion.