Court No. - 26 Case :- WRIT - A No. - 51239 of 2007 Petitioner :- Than Singh Respondent :- State Of U.P. And Another Petitioner Counsel :- Murtaza Ali,O.P. Singh,V.Gautam Respondent Counsel :- C.S.C.,S.P. Kesharwani Hon'ble Amreshwar Pratap Sahi,J.
Heard Shri Gautam Chaudhary learned counsel for the petitioner and
learned Standing Counsel for the State-respondents.
The petitioner was a Class-III employee in the Excise Department and is
claiming promotion as an Excise Inspector under the U.P. Subordinate
Excise Service Rules 1992. The said post is to be filled up by promotion
from the Ministerial Cadre and the criteria for promotion is seniority
subject to rejection of unfit.
The respondents have come out with a case that the petitioner was
considered by the Departmental Promotion Committee in his category
and he was found unfit for being promoted as Excise Inspector on the
ground that he was awarded an adverse entry on 5th September 2005.
This was done on account of an alleged lapse on the part of the petitioner
while preparing results of the Class-III examinations of the department.
The petitioner represented against the same and also filed a writ petition
before this Court being Writ Petition No. 16547/2006 which was
disposed of on 27.3.2006 with a direction to consider his representation
against the adverse entry as also his request for promotion.
The aforesaid request of the petitioner is stated to have been considered
by the Committee once again on 7.8.2007. A perusal of the said
proceedings filed along with the counter affidavit as Annexure CA 3
indicates the consideration of his candidature as also the representation
against the adverse entry. The Committee has recorded that the petitioner
had taken a plea that on account of a large volume of work, with which
the petitioner was overloaded, there might have been some error in the
preparation of the results of the Class-III examinations for which the then
alleged higher Officials had made an oral promise that they would get the
said adverse entry dated 5.9.2005 rectified. In my opinion, there is
nothing to indicate that there was any oral promise made by any higher
Officials and even otherwise the petitioner should not have relied upon
any such promise having been made by the Officer. Nonetheless taking
into consideration his representation against the said adverse entry, the
authority has promoted the petitioner as Office Superintendent finding
him fit for the said post. In essence, the respondents have granted the
benefit of promotion to the petitioner by taking into consideration the
representation which was made by him and which was directed to be
considered by this Court vide order dated 27.3.2006. The petitioner on
his own has not accepted that post. The said offer according to the
learned Standing Counsel is still open to the petitioner provided the post
is also available for being filled in the said category.
This Court after having examined the facts does not find any discrepancy
in the departmental proceeding as subsequently the petitioner’s request
has been accepted.
Learned counsel for the petitioner relied on the circular dated 20.3.2007.
This circular would cannot apply retrospectively at least in relation to the
selections which were held prior to that as the adverse entry was made in
2005. It appears that the petitioner’s claim was reconsidered after the said
circular was brought into force. The respondent authorities have ignored
the said adverse entry and have then proceeded to promote the petitioner.
Accordingly, the petition is disposed of with a direction to consider the
offer of the petitioner to join as Office Superintendent provided the post
is available in his category.
Order Date :- 10.5.2010
Puspendra