# Arvind Kumar Nirmal v. State of U.P. & Anr

- **Citation:** (2024) 9 ILRA 521
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-24
- **Case number:** Writ A No. 6533 of 2024
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-nirmal-v-state-of-u-p-anr-54672
- **Pages:** 6

## Headnote

A. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 - GO
dated 17.09.2023 - Post of Chief Engineer
(Civil)
-
Departmental
promotion
-
Deduction was made in bench marks on
account
of
warning
issued
by
the
Managing Director and minor penalty - GO
dated
17.09.2023
provide
that
only
warnings issued by the St. Government
(Shasan) shall be taken into consideration
- Effect - Held, opposite parties have
erred in deducting marks obtained by
petitioner on account of warning issued by
the Corporation. (Para 26)

B. Service Law - Post of Chief Engineer
(Civil) - Promotion - Adverse entry prior
to
earlier
promotion
-
Effect
on
subsequent promotion - Doctrine of
Washing off - Applicability - Babu Lal
Jangir's
case
relied
upon
-
After
promotion of an employee, adverse
entries prior thereto would have no
relevance and can be treated as washed
off when the Government employee is to
be considered for further promotion -
Held, opposite parties have erred in
declaring to petitioner unsuitable for
promotion on the post of Chief Engineer
(Civil). (Para 27, 28 and 30)

C.
Service
law
-
Constitution
of
India,1950 - Schedule VII to Article 246 -
Sovereign power of St. - UP Government
Servant (Discipline and Appeal) Rules,
1999 - Rule 2 (j) - Service - Government
Corporation,
whether
come
within
definition of St. Government - Held, the
provision also clearly indicates as to when
a
Corporation
registered
under
the
Companies Act can be deemed to be a
Government Corporation but still does not
indicate
that
any
such
Government
Corporation would come within definition of
the St. Government of Uttar Pradesh or that
the employees or Managing Director of any
such
Government
Corporation
can
be
included to mean service and post in
connection with the affairs of St. of Uttar
Pradesh,
which
clearly
would
involve
exercise of sovereign powers of St. as per
Schedule
VII
to
Article
246
of
the
Constitution of India - Managing Director of
the Corporation would not come within
definition of St. (Shasan). (Para 23 and 24)

Writ allowed. (E-1)

List of Cases cited:

Rajasthan St. Road Transport Corporation & ors.
Vs Babu Lal Jangir; (2013) 10 SCC 551

## Text

9 All. Arvind Kumar Nirmal Vs. State of U.P. & Anr.
521
Applications are dismissed. Petitions are
allowed.
----------
(2024) 9 ILRA 521
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2024

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ A No. 6533 of 2024

Arvind Kumar Nirmal ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner
Anupras Singh

Counsel for the Respondents:
C.S.C., Naresh Chandra Mohan

A. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 - GO
dated 17.09.2023 - Post of Chief Engineer
(Civil)
-
Departmental
promotion
-
Deduction was made in bench marks on
account
of
warning
issued
by
the
Managing Director and minor penalty - GO
dated
17.09.2023
provide
that
only
warnings issued by the St. Government
(Shasan) shall be taken into consideration
- Effect - Held, opposite parties have
erred in deducting marks obtained by
petitioner on account of warning issued by
the Corporation. (Para 26)

B. Service Law - Post of Chief Engineer
(Civil) - Promotion - Adverse entry prior
to
earlier
promotion
-
Effect
on
subsequent promotion - Doctrine of
Washing off - Applicability - Babu Lal
Jangir's
case
relied
upon
-
After
promotion of an employee, adverse
entries prior thereto would have no
relevance and can be treated as washed
off when the Government employee is to
be considered for further promotion -
Held, opposite parties have erred in
declaring to petitioner unsuitable for
promotion on the post of Chief Engineer
(Civil). (Para 27, 28 and 30)

C.
Service
law
-
Constitution
of
India,1950 - Schedule VII to Article 246 -
Sovereign power of St. - UP Government
Servant (Discipline and Appeal) Rules,
1999 - Rule 2 (j) - Service - Government
Corporation,
whether
come
within
definition of St. Government - Held, the
provision also clearly indicates as to when
a
Corporation
registered
under
the
Companies Act can be deemed to be a
Government Corporation but still does not
indicate
that
any
such
Government
Corporation would come within definition of
the St. Government of Uttar Pradesh or that
the employees or Managing Director of any
such
Government
Corporation
can
be
included to mean service and post in
connection with the affairs of St. of Uttar
Pradesh,
which
clearly
would
involve
exercise of sovereign powers of St. as per
Schedule
VII
to
Article
246
of
the
Constitution of India - Managing Director of
the Corporation would not come within
definition of St. (Shasan). (Para 23 and 24)

Writ allowed. (E-1)

List of Cases cited:

Rajasthan St. Road Transport Corporation & ors.
Vs Babu Lal Jangir; (2013) 10 SCC 551

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. J.N. Mathur, learned
senior counsel assisted by Mr. Anupras
Singh, learned counsel for petitioner,
learned State Counsel for opposite parties
no. 1 & 2 and Mr. N.C. Mehrotra, learned
counsel for opposite parties no. 3 & 4.

2. Counter affidavit filedtoday on behalf
of opposite party no. 1 is taken on record.

3. Learned counsel for petitioner on
the basis of instructions submits that
522 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner does not wish to file any
response thereto.

4. Short counter affidavit by opposite
parties no. 3 & 4 has already been filed and
replied to. The petition, therefore, is being
adjudicated upon finally.

5.

Petition
has
been
filed
challenging
the
recommendations/decision of Departmental
Promotion Committee dated 05.07.2024 so
far as it relates to withholding of
recommendation pertaining to petitioner for
promotion on the post of Chief Engineer
(Civil) of the U.P. State Construction and
Infrastructure Development Corporation
Limited. Further prayer for a direction to
opposite parties to consider petitioner's case
for promotion on the post of Chief
Engineer (Civil) of the Corporation in
accordance with Government Order dated
27.09.2019 and for a prohibition to
opposite parties for making promotions on
the
aforesaid
post
till
decision
on
petitioner's claim has also been sought.

6. Learned counsel for petitioner
submits that for the purposes of promotion
on the post of Chief Engineer (Civil) of the
Corporation, a Departmental Promotion
Committee was constituted to be held on
05.07.2024 and petitioner's name was duly
forwarded by the Managing Director on
05.03.2024. It is submitted that the cut off
bench marks for consideration of such
promotion being 80 marks, petitioner
having obtained 80.25, on the basis of his
service his name was duly forwarded for
consideration thereof.

7. Learned counsel for petitioner has
drawn
attention
to
minutes
of
the
Departmental
Promotion
Committee
brought on record by means of the
supplementary affidavit dated 04.09.2024
to submit that petitioner's name was
thereafter disregarded on the ground that
although he had cleared the bench mark
with 80.25 marks but 10 marks therefrom
were required to be deducted in view of
two warnings which were issued to him
earlier as well as the fact that he was visited
with a minor penalty vide order dated
21.02.2018. It is submitted that due to
aforesaid reasons, petitioner's case has not
been considered.

8. Learned counsel has submitted that
earlier a warning was issued to petitioner
on 28.10.2014 by the Managing Director of
the Corporation when he was posted as
Assistant Engineer. Subsequently petitioner
was promoted on the post of Executive
Engineer (Civil) on 21.12.2016 but while
working on such post, he was again issued
a warning by the Superintending Engineer
on 12.09.2017 whereafter he was also
visited with the minor penalty dated
21.02.2018.

9. It is further submitted that
thereafter
a
warning
was
issued
to
petitioner by the State Government on
05.02.2021 but was subsequently expunged
vide order dated 30.01.2024. It is submitted
that thereafter petitioner was promoted on
the post of Superintending Engineer (Civil)
on 16.12.2021 whereafter vide order dated
12.12.2023,
the
State
Government
approved upgradation of service entry in
petitioner's service records for the year
2017-2018 from 'good' to 'very good'.
Similarly vide order dated 11.01.2024,
service entry in records of petitioner for the
year 2017-2018 and 2018-2019 were also
upgraded from 'good' to 'very good'.

10. Learned counsel has thereafter
adverted to the Government Order dated
9 All. Arvind Kumar Nirmal Vs. State of U.P. & Anr.
523
27.09.2019, particularly paragraph 7 (6)
thereof to submit that as per directions
issued by the State Government, only those
warnings which were issued by the State
Government are required to be taken into
account for purposes of deduction in the
bench mark for purposes of promotion and
since in the present case, two warnings
were issued by the Managing Director of
the Corporation, the same were not
required to be taken into account by the
Departmental Promotion Committee. It is
further submitted that in terms thereof, the
only other warning issued by the State
Government has thereafter already been
expunged by the State Government itself
and naturally the same was not taken into
consideration by the Committee.

11. So far as the minor penalty is
concerned, learned counsel for petitioner
submits that the doctrine of washing off will
be applicable with regard to said penalty
since the same was imposed vide order dated
21.02.2018
whereafter
petitioner
was
promoted on the post of Superintending
Engineer on 16.12.2021 and whereafter also
his entries in his service were recorded as
very good vide order dated 12.12.2023.

12. Learned counsel for petitioner has
also adverted to Form 4 dated 05.03.2024
whereby bench mark of 80.25 was awarded
to petitioner while forwarding his name for
consideration by the Departmental Promotion
Committee. He has adverted to the aforesaid
document to indicate that warnings issued by
the Managing Director of the Corporation
were rightly not taken into account in view of
the provisions under paragraph 7 of the
Government Order dated 27.09.2019.

13. In view thereof, it has been
submitted that there was no occasion for
the Departmental Promotion Committee to
have deducted 10 marks from the bench
mark awarded to petitioner.

14. Learned counsel appearing on behalf
of opposite parties, particularly opposite
parties no. 3 & 4 has refuted submissions
advanced by learned counsel for petitioner
with the submission that paragraph 7 of the
Government Order dated 27.09.2019 adverts
two warnings being issued by the State
(Shasan). It is submitted that the Corporation
being a Government Corporation, the word
'Shasan'
would
include
the
Managing
Director of the Corporation in terms of Rule
2 (g) of the U.P. Government Servant
(Discipline and Appeal) Rules, 1999 and
particularly in view of Rule of 2 (j) thereof
which defines the word 'service' to mean
public service and post in connection with the
affairs of the State of U.P.

15. Learned counsel has also adverted
to
the
U.P.
State
Construction
and
Infrastructure
Development
Corporation
Limited Service Regulations to submit that
Rule 17 (3) thereof clearly indicates that for
the purposes of promotion on a Class-I post
having pay scale of more than Rs. 18,300/- or
more , the criteria is only merit and not even
seniority. In terms thereof, he has submitted
that the doctrine of washing off will not be
applicable in the present case where
promotion is required to be considered only
on the basis of merit and not seniority. He has
also adverted to the Government Order dated
17.09.2019 with paragraphs 2 and 7 to submit
that for the purposes of promotion, service
record of the recommended candidate for the
past ten years is required to be taken into
consideration which would include the minor
penalty and warnings which were issued to
petitioner.

16.

Upon
consideration
of
submissions advanced by learned counsel
524 INDIAN LAW REPORTS ALLAHABAD SERIES
for parties and perusal of material on
record, it is evident that dispute centers
around deduction made in the bench mark
obtained by petitioner on account of two
warnings issued to him by the Managing
Director of Corporation as well as the
minor penalty imposed upon him vide
order dated 21.02.2018. As has already
been indicated hereinabove, the warning
issued
to
petiitoner
by
the
State
Government on 05.02.2021 already stood
expunged by order of State Government
dated 30.01.2024 and has not been taken
into consideration by the opposite parties
themselves.

17. A perusal of format 4 dated
05.03.2024 forwarded by the Managing
Director of the Corporation recommending
name of petitioner for consideration by the
Departmental Promotion Committee and
awarding him marks of 80.25 clearly
indicates the aspect that two warnings have
been issued to petitioner by the Corporation
and one by the State Government. The
format also indicates that warning issued
by the State Government has been
discarded since it was expunged. It also
indicates that the warnings issued by the
Corporation have also not been taken into
account
while
awarding
marks
to
petitioner. The note appended thereto also
indicates that the provisions of Government
Order dated 27.09.2019 would govern
promotions to be made on the post in
question. It has also been indicated that
there is no departmental or vigilance
inquiry pending against petitioner.

18. So far as the question of warnings
being issued to petitioner is concerned,
paragraph 7 (6) of the Government Order
dated 17.09.2023 indicates that despite
there being no provision in the Rules of
1999 for issuance of any warnings to an
employee, it has been brought to the notice
of State Government that such a procedure
is still being followed by issuance of
warnings to employees. The directions
were therefore issued that in cases of
promotion, only warnings issued by the
State Government (Shasan) shall be taken
into consideration and then too only in case
adequate opportunity of hearing has been
provided to the employee concerned
whereafter five marks would be deducted
for every such warning.

19. As is evident from Format-4 dated
05.03.2024, the Government Order dated
27.09.2019 appears to have been made
applicable for purposes of promotion of
employees of the Corporation and therefore
the aforesaid paragraph 7 (6) would be
applicable in the present case.

20. The material on record clearly
denotes the fact that deduction from
petitioner's marks have been effected on
account of two warnings being issued to
petitioner by the Managing Director of the
Corporation.

21. Although, learned counsel for
opposite parties has adverted to Rule 2 (g)
(j) to submit that the Managing Director of
the
Corporation
would
come
within
definition of 'Shasan', the rule in its clear
definition denotes otherwise. Rule 2 (g) of
the Rules of 1999 clearly adverts to the
definition of Government as meaning the
State Government of Uttar Pradesh. No
provision of law has been cited or indicated
by learned counsel for opposite parties to
indicate that the Managing Director of the
Corporation would come within definition
of the Government of Uttar Pradesh.

22. A perusal of Rule 2 (j) also
indicates 'service' to mean public service
9 All. Arvind Kumar Nirmal Vs. State of U.P. & Anr.
525
and post in connection with the affairs of
the State of Uttar Pradesh. That by any
stretch of imagination cannot be deduced
that
the
affairs
of
the
Government
Corporation as defined under Section 617
of Companies Act would come within
definition of the affairs of the State of Uttar
Pradesh.

23. The aforesaid provision also
clearly indicates as to when a Corporation
registered under the Companies Act can be
deemed to be a Government Corporation
but still does not indicate that any such
Government Corporation would come
within definition of the State Government
of Uttar Pradesh or that the employees or
Managing
Director
of
any
such
Government Corporation can be included
to mean service and post in connection with
the affairs of State of Uttar Pradesh, which
clearly would involve exercise of sovereign
powers of State as per Schedule VII to
Article 246 of the Constitution of India.

24. In view of aforesaid discussion,
the submission of learned counsel for
opposite parties that the Managing Director
of the Corporation would come within
definition of State (Shasan) is hereby
rejected.

25. In such circumstances, the
provision of paragraph 7 (6) of the
Government Order dated 27.09.2019 gains
significance particularly since the State
Government which issued the warning
earlier to petitioner stood expunged and the
only warnings due to which deductions
have been made from petitioner's marks
have been issued by the Corporation itself.

26. In view of aforesaid, it is quite
evident that opposite parties have erred in
deducting marks obtained by petitioner on
account
of
warning
issued
by
the
Corporation.

27. So far as the question of the minor
penalty dated 21.02.2018 is concerned,
learned counsel for petitioner has cited
judgment rendered by Hon'ble Supreme
Court in the case of Rajasthan State Road
Transport
Corporation
and
others
versus Babu Lal Jangir, (2013) 10 SCC
551 in which it has been clearly enunciated
that after promotion of an employee,
adverse entries prior thereto would have no
relevance and can be treated as washed off
when the Government employee is to be
considered for further promotion. The only
exception indicated is that the aforesaid
theory would be inapplicable where an
employee is being assessed for purposes of
compulsory retirement.

28. In view of the fact that petitioner
was visited with the minor penalty vide
order dated 21.02.2018 whereafter he was
promoted on the post of Superintending
Engineer on 16.12.2021 as well as the fact
that his service entry in service records was
also
upgraded
on
12.12.2023
and
11.01.2024 to very good from good clearly
makes the aforesaid doctrine of washing off
applicable
in
the
present
facts
and
circumstances.

29. It is also relevant that as per
paragraph 7 (5) of the Government Order
dated 27.09.2023, it has been provided that
an employee who has been visited with a
minor penalty would not be considered for
further
promotion
in
at
least
two
subsequent
Departmental
Promotion
Committees but in the case of petitioner, he
has been promoted subsequent to the minor
penalty imposed upon him which clearly
denotes the fact that petitioner's case was
covered by the aforesaid provision of the
526 INDIAN LAW REPORTS ALLAHABAD SERIES
Government Order and the aforesaid minor
penalty was considered by the opposite
parties prior to his subsequent promotion
on the post of Superintending Engineer and
therefore also would loose its efficacy
subsequently.

30. In view of discussion made
hereinabove, it is evident that the opposite
parties have erred in declaring to petitioner
unsuitable for promotion on the post of
Chief Engineer (Civil) by means of
recommendation dated 05.07.2024.

31. In view thereof, the recommendations
of the Departmental Promotion Committee
dated 05.07.2024 to the extent it reduces
petitioner's marks obtained by petitioner by 10
marks and declaring him unsuitable on that
ground is hereby quashed by issuance of a writ
in the nature of certiorari. A further writ in the
nature of mandamus is issued commanding the
opposite party no. 1 to reconstitute a
Departmental
Promotion
Committee
for
purposes of consideration of promotion to the
post of Chief Engineer (Civil) in the
Corporation
concerned
and
to
consider
petitioner's case afresh with regard to same
without making any deductions for the two
warnings issued to petitioner by the Corporation
and the minor penalty dated 21.02.2018.

32. Since the recommendations of
Departmental Promotion Committee dated
05.07.2024 are said to have already been
given effect to with regard to names of
other recommended persons, it is further
directed that in case petitioner is found
eligible for promotion on the post of Chief
Engineer (Civil), such promotion would
relate back to 05.07.2024.

33.

Consequently,
the
petition
succeeds and is allowed. Parties to bear
their own cost.
----------
(2024) 9 ILRA 526
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.09.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ A No. 6749 of 2024

Arun Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner
Jitendra Bahadur, Shobh Nath Yadav

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Government Servant
(Discipline & Appeal) Rules, 1999 - Rule 8
& 9 - Departmental enquiry - No charge
was found proved - However, direction for
re-enquiry
was
made
before
taking
decision by the Disciplinary Authority -
Validity challenged - Intervention before
taking decision by Disciplinary Authority -
Permissibility - Held, the Director General
has got no say or authority to request the
Disciplinary Authority to direct for reinquiry.
This
power
vests
with
the
Disciplinary Autority under Rule 9 to agree
with the findings of the Inquiry Officer or
not to agree with the findings of the
Inquiry Officer - High Court set aside the
impugned order for re-enquiry. (Para 10
and 12)

Writ allowed. (E-1)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard.

2. Though this Court allowed the
amendment application of the petitioner