# Gaya Prasad Pandey v. State of U.P. & Ors

- **Citation:** (2022) 4 ILRA 735
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-15
- **Case number:** Writ-A No. 2630 of 2020
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaya-prasad-pandey-v-state-of-u-p-ors-48306
- **Pages:** 11

## Headnote

A. Service Law - UP Government Servants
(Disposal
of
Representation
Against
Adverse Annual Confidential Reports and
Allied Matters) Rules, 1995 - Rules 3, 4 &
5
-
Promotion
-
Adverse
entry
-
Representation
made
against
adverse
entry - Statutory period of 172 was
provided
to
take
decision
on
such
representation - Period of 172 days was
expired on 09.11.2017, but no decision
was taken on such representation - Other
adverse entry stood expunged - Effect -
736 INDIAN LAW REPORTS ALLAHABAD SERIES
Held, statutory period of 172 days had
expired on 09.11.2017, nothing restrained
the
then
Departmental
Promotion
Committee that sat on 24.11.2017 from
considering
the
candidature
of
the
petitioner for promotion. (Para 14, 15 and
19)
B. Service Law - Constitution of India -
Article 14 - Right to promotion - It's claim
as the fundamental right - Consideration -
Held, Article 14 of the Constitution provides
for not only equality before law but also
equal protection of laws - While right to
promotion may not be fundamental right
but right to be considered for promotion in
accordance
with
service
rules,
is
a
fundamental right and any discrimination in
such a matter would be hit by Article 14 of
the
Constitution
of
India
-
Maneka
Gandhis's case and Ajay Kumar Shukla's
case relied upon. (Para 20 and 23)
C. Service Jurisprudence - Contract of
employment - Illegal denial of promotion -
Consequential benefit - Entitlement - Held,
in Service jurisprudence where we refer
employer-employee
relationship
to
be
governed by contract of employment, it is
embedded in such contract that all service
benefits to which under his contract of
employment and the relevant service rules,
an employee is entitled, same shall be
conferred upon him without discrimination
- High court directed the Respondent to
constitute
a
Departmental
Promotion
Committee to consider promotion of the
petitioner w.e.f. the date juniors to the
petitioner have been promoted, with all
consequential benefits and pass orders
accordingly. (Para 25 and 33)
Writ petition allowed. (E-1)
List of Cases cited :-

## Text

4 All. Gaya Prasad Pandey Vs. State of U.P. & Ors.
735
situation where appointment on a particular
post is made by promotion from several
feeding cadres that is to say Rule 7 will
have an application for the purposes of
determination
of
seniority
once
the
promotion from the feeding cadres is made.
In this case Rule 7 of the Rules of 1991
will have application only once promotion
to the post of Deputy Superintendent of
Police is made from the two feeding cadres,
namely the cadre of Inspectors (Civil
Police) and the cadre of Inspectors (Armed
Police) and thereafter seniority list is to be
determined
on
the
post
of
Deputy
Superintendent of Police. Rule 7 is thus
available and applicable for the purposes of
determining
the
seniority
once
the
promotion is made and not prior to that.
The seniority list to be prepared under the
Government Servant Seniority Rules is not
to be confused by the 'combined seniority
list' which phrase occurs in Rule 16 of the
Rules of 2016.

37. In view of the aforesaid
discussions, we are of the considered
opinion that Rule 7 of Rules of 1991 does
not have any application for the purposes of
preparation of the 'combined seniority list'
as envisaged under Rule 16 of the Rules of
2016.

38. For the reasons aforesaid, we are
unable to agree with the judgment and
order passed by learned Single Judge, dated
22.09.2021, in Writ Petition No.34799 (SS)
of 2019.

39. The Special Appeal is, thus,
allowed and the said judgment passed by
learned Single Judge is hereby set aside.

40. We, however, while allowing the
special appeal, also direct the State
Government to consider framing of some
objective criteria for the purposes of
preparation of combined seniority list to be
prepared as per the requirement of Rule 16
of the Rules of 2016 for making promotion
to the Ordinary Grade of service as
described in the Uttar Pradesh Police
Service Rules, 2016. The said criteria shall
be framed by the State Government within
a period of two months from the date a
certified copy of this order is furnished.
The necessary exercise for promotion to the
post of Deputy Superintendent of Police
shall be undertaken thereafter.

41. There will be no order as to costs.
----------
(2022)04ILR A735
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 2630 of 2020

Gaya Prasad Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Samir Sharma, Sri Ajay Kumar Srivastava

Counsel for the Respondents:
C.S.C., Sri Awadhesh Kumar Saxena, Sri Avijit
Saxena

A. Service Law - UP Government Servants
(Disposal
of
Representation
Against
Adverse Annual Confidential Reports and
Allied Matters) Rules, 1995 - Rules 3, 4 &
5
-
Promotion
-
Adverse
entry
-
Representation
made
against
adverse
entry - Statutory period of 172 was
provided
to
take
decision
on
such
representation - Period of 172 days was
expired on 09.11.2017, but no decision
was taken on such representation - Other
adverse entry stood expunged - Effect -
736 INDIAN LAW REPORTS ALLAHABAD SERIES
Held, statutory period of 172 days had
expired on 09.11.2017, nothing restrained
the
then
Departmental
Promotion
Committee that sat on 24.11.2017 from
considering
the
candidature
of
the
petitioner for promotion. (Para 14, 15 and
19)
B. Service Law - Constitution of India -
Article 14 - Right to promotion - It's claim
as the fundamental right - Consideration -
Held, Article 14 of the Constitution provides
for not only equality before law but also
equal protection of laws - While right to
promotion may not be fundamental right
but right to be considered for promotion in
accordance
with
service
rules,
is
a
fundamental right and any discrimination in
such a matter would be hit by Article 14 of
the
Constitution
of
India
-
Maneka
Gandhis's case and Ajay Kumar Shukla's
case relied upon. (Para 20 and 23)
C. Service Jurisprudence - Contract of
employment - Illegal denial of promotion -
Consequential benefit - Entitlement - Held,
in Service jurisprudence where we refer
employer-employee
relationship
to
be
governed by contract of employment, it is
embedded in such contract that all service
benefits to which under his contract of
employment and the relevant service rules,
an employee is entitled, same shall be
conferred upon him without discrimination
- High court directed the Respondent to
constitute
a
Departmental
Promotion
Committee to consider promotion of the
petitioner w.e.f. the date juniors to the
petitioner have been promoted, with all
consequential benefits and pass orders
accordingly. (Para 25 and 33)
Writ petition allowed. (E-1)
List of Cases cited :-
1. Civil Appeal No. 5966 of 2021; Ajay Kumar
Shukla & ors. Vs Arvind Rai & ors. decided on
08th December, 2021
2. Maneka Gandhi Vs U.O.I. & anr., AIR 1978 SC
597
3. U.P. St. Electricity Board & anr. Vs Kharak
Singh & anr.
4. R.K.Singh Vs St. of U.P. & ors.
5. Ramesh Kumar Vs U.O.I. & ors.
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Samir Sharma, learned
counsel for the petitioner, Sri Avijit
Saxena, learned Advocate holding brief of
Sri A.K.Saxena, learned counsel for the
respondent.

2. By means of present writ petition
filed under Article 226 of the Constitution,
petitioner has challenged the order dated
16th July, 2019 whereby his representation
regarding claim for promotion from class
IV post to class III post of book clerk has
come to be disposed of rejecting his claim.

3.

Assailing
the
above
order
impugned in the present petition, learned
Senior Advocate has argued that on the
date of the meeting of the Departmental
Promotion Committee which was 24th
November, 2017, there was no adverse
entry in the character roll of the present
petitioner and so he was eligible to be
considered for promotion.

4. In support of his above argument,
learned Senior Advocate submits that prior
to year 2016-17 whatever adverse entries
were awarded to the petitioner that had
stood expunged vide orders dated 12th
January 2016 and 26th December, 2016
respectively, and in so far as adverse entry
of the year 2016 -17 is concerned, he had
already represented against the same before
the competent authority on 17.05.2017 and
since no decision was taken by the
competent authority within the period
prescribed for disposal of the representation
of the employee, the said entry under the
4 All. Gaya Prasad Pandey Vs. State of U.P. & Ors.
737
U.P.Government
Servants(Disposal
of
Representation Against Adverse Annual
Confidential Reports and Allied Matters)
Rules, 1995 (hereinafter referred to as
Rules, 1995), would loose its relevance and
significance
for
the
purposes
of
consideration of promotion under Rule 5 of
the said Rues.

5. Learned counsel for the petitioner
has taken the Court to the circular letter
of the U.P. Transport Corporation ,
Lucknow dated 13th November, 1997,
which records that Board of Directors of
the Corporation in its 137th meeting
dated 11.06.1996 had adopted the Rules,
1995. Thus argument is that once the
rules have been made applicable to the
employees
of
the
U.P.
Transport
Corporation, representation made against
the adverse entry was liable to be
disposed of as per Rule 4 read with Rule,
5,6 and 7 of the aforesaid Rules.

6. It is submitted that Rule 5 provides
that in the event representation against the
adverse entry is not disposed of in
accordance with law vide Rule 4, such
report shall not be treated adverse for the
purposes
of
promotion/crossing
of
efficiency bar/ or other service benefits to
the concern employee.

7. Thus, submission of learned
counsel for the petitioner is that adverse
remarks / entries made in the year 2016-17
having been represented against and the
said
representation
having
not
been
disposed of in terms of Rule 4 of Rules,
1995, the claim for promotion of the
petitioner could not have been ignored by
the Departmental Promotion Committee
while it considered the candidature of the
employees for promotion from Class IV to
Class III posts on 24.11.2017.

8.

Mr. Sharma
appearing
for
petitioner has also submitted that the order
impugned has proceeded on the premise
that 33 employees were in-excess of
sanctioned
posts
and,
therefore,
consideration of petitioner's candidature
would not be possible, which according to
him,
is
absolutely
misplaced
and
misconceived
stand.
He
argues
that
seniority of the petitioner in the class IV
cadre is not disputed and even in the year
of promotion of 2017 persons junior to the
petitioner
have
been
promoted.
He
therefore, submits that had the petitioner's
candidature been considered for promotion
in time, he would have been placed above
33 marks of surplus employees in the book
clerk's cadre.

9. Specific averments in support of
the argument so above advanced, have been
made in paragraph 21, 22, 23, 24, 25, 30,
31, 32, 34 and 39. The order expunging
entries of the year 2014-15 and 2015-16
and again 2016-17 have been brought on
record. Promotion orders giving promotion
to the juniors have also been brought on
record.

10. Learned counsel for the contesting
respondent could not dispute the above
submissions. Counter affidavit that has
been filed does not contain any specific
denial of what has been averred in
paragraphs 21 and 22 of the writ petition
with regard to the adverse entry and so far
denial to paragraph 31 is concerned, he
submits that 30 posts were held in-excess
but the fact that 39 juniors to the petitioner
have been promoted to the post of Clerk,
has not been denied even while giving
promotion to various class IV employees.
One single tune that the respondents have
been harping about is that there were
adverse entries against he petitioner on
738 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant dates of consideration but what
would the effect if entries have been
expunged, on this point the counter
affidavit is silent.

11. The fact that 151 candidates who
were junior to the petitioner have been
promoted is also not specifically denied.
The averments made in paragraph 34 that
petitioner would be placed above Umesh
Chandra Pandey at serial number 101 and
thus would be falling within the sanctioned
strength, is also not denied. Respondents
have also not denied the circular lettercum-order dated 13th November, 1997
adopting Rules 1995

12. After going through various
documents brought on record, pleadings
raised by the respective parties in the
present case, I find the only issue to be
adjudicated is as to whether petitioner's
candidature was liable to be considered on
24.11.2017 .

13. In order to appreciate the
controversy, it would be proper to produce
Rules 3, 4 and 5 of 1995 Rules. These
provisions are quoted as under:

3. Definitions. - Unless there is
anything repugnant in the subject or
context, the expression-

(a) "appropriate authority" means a
person
who
is
empowered
by
the
Government to act as reporting authority,
reviewing authority or accepting authority,
as the case may be;

(b)
"Constitution"
means
the
Constitution of India;

(c) "Government" means the State
Government of Uttar Pradesh;

(d) "Government Servant" means a
person working on a post under the rule
making powers of the Governor under the
proviso to Article 309 of Constitution other
than a post under control of the High
Court;

(e)
"report"
means
annual
confidential report regarding the work,
conduct and integrity of a Government
Servant for each year recorded by an
appropriate authority, who has seen the
performance of the Government servant
for not less than a continuous period of
three months;

(f) "Secretariat" means the Secretariat
of the Government;

(g) "Year" means a period of twelve
months commencing from the first day of
April of a calendar year.

4. Communication of adverse report
and
procedure
for
disposal
of
representation. - (1) Where a report in
respect of a Government Servant is adverse
or critical, wholly or in part, hereinafter
referred to as adverse report, the whole of
the report shall be communicated in
writing
to
the
Government
Servant
concerned by the accepting authority or by
an officer not below the rank of reporting
authority nominated in this behalf by the
accepting authority, within a period of 45
days from the date of recording the report
and a certificate to this effect shall be
recorded in the report. (2) A Government
Servant may, within a period of 45 days
from the date of communication of
adverse
report
under
sub-rule
(1),
represent in writing directly and also
through proper channel to the authority
one rank above the accepting authority,
hereinafter referred to as the competent
authority, and if there is no competent
authority, to the accepting authority itself,
against
the
adverse
report
so
communicated:
Provided
that
if
the
competent authority or the accepting
authority, as the case may be, is satisfied
that the Government Servant concerned
4 All. Gaya Prasad Pandey Vs. State of U.P. & Ors.
739
had sufficient cause for not submitting the
representation within the said period, he
may allow a further period of 45 days for
submission of such representation. (3) The
competent
authority
or
accepting
authority as the case may be, shall, within
a period not exceeding one week from the
date of receipt of the representation under
sub-rule (2), transmit the representation to
the
appropriate
authority,
who
has
recorded the adverse report, for his
comments, who shall, within a period not
exceeding 45 days from the date of receipt
of
the
representation,
furnish
his
comments to the competent authority or
the accepting authority as the case may be
: Provided that no such comments shall be
required if the appropriate authority has
ceased to be in, or has retired from, the
service or is under suspension before
sending his comments. (4) The competent
authority or the accepting authority, as the
case may be, shall, within a period of 120
days from the date of expiry of 45 days
specified in sub-rule (3), consider the
representation along with the comments of
the appropriate authority, and if no
comments have been received without
waiting for the comments, and pass
speaking orders-

(a) rejecting the representation; or

(b) expunging the adverse report
wholly or partly as he considers proper.

(5) Where the competent authority due
to any administrative reasons, is unable to
dispose of the representation within the
period specified in sub-rule (4), he shall
report in this regard to his higher
authority, who shall pass such orders as he
considers proper for ensuring disposal of
the representation within the specified
period. (6) An order passed under sub-rule
(4) shall be communicated in writing to the
Government Servant concerned. (7) Where
an order expunging the adverse report is
passed under sub-rule (4), the competent
authority or the accepting authority as the
case may be shall omit the report so
expunged. (8) The order passed under subrule (4) shall be final. (9) Where any matter
for-

(i) communication of an adverse
report;

(ii) representation against an adverse
report;

(iii) transmission of representation to
the appropriate authority for his comments;

(iv) comments of the appropriate
authority; or

(v) disposal of representation against
an adverse report; is pending on the date of
the commencement of these rules, such
matters shall be dealt with and disposed of
within the period prescribed therefor under
this rule.

Explanation. - In computing the period
prescribed under this rule for any matters
specified in this sub-rule the period already
expired on the date of the commencement
of these rules shall not be taken into
account.

5. Report not to be treated adverse. -
Except as provided in Rule 56 of the Uttar
Pradesh Fundamental Rules contained in
Financial Handbook Volume II, Parts II to
IV. Where an adverse report is not
communicated or a representation against
an adverse report has not been disposed of
in accordance with Rule 4, such report
shall not be treated adverse for the
purposes
of
promotion,
crossing
of
Efficiency Bar and other service matters
of the Government Servant concerned.

(emphasis added)

14. From bare reading of the aforesaid
Rules
,
it
is
clear
that
moment
representation against the adverse entry
awarded is made the appropriate authority
shall forward the same to the higher
740 INDIAN LAW REPORTS ALLAHABAD SERIES
competent
authority
within
45
days
alongwith
his
comments
and
upon
receiving of the same within 120 days, the
competent authority would either accept the
comments so made or if no comment is
made ,shall pass speaking order either
rejecting the application or expunging the
adverse entry.

15. Thus in any case, representation
has to be disposed of within 165 days plus
7 days (period to forward representation)
i.e. 72 days.

16.

In
this
case
admittedly
representation was made on 22.5.2017 and
that remained undisposed of admittedly
until 24.11.2017. According to the relevant
provisions (supra) the period is 172 days
and so would expire on 09.11.2017.

17. Now it is necessary to examine
that what will be the impact of such
adverse
entry
in
case
Departmental
Promotion
Committee
sits
in
the
meanwhile and decides to consider the
candidature of various candidates for
promotion.

18. From the aforesaid Rule, it is clear
that if representation remains undisposed of
beyond the period prescribed for its
disposal, then such adverse entry would not
be a bar for the purposes of consideration
for promotion.

19. Thus in my considered view since
other past adverse entries had already
stood expunged vide orders dated 12th
January 2016 and 26.12.2016 and statutory
period of 172 days had expired on
09.11.2017, nothing restrained the then
Departmental Promotion Committee that
sat on 24.11.2017 from considering the
candidature of the petitioner for promotion.
Admittedly persons junior to the petitioner
have come to be promoted on 5.12.2017 as
averred in paragraph 38 of the writ petition
which has been very vaguely denied.

20. It is settled legal position that
while right to promotion may not be
fundamental
right
but
right
to
be
considered for promotion in accordance
with service rules, is a fundamental right
and any discrimination in such a matter
would be hit by Article 14 of the
Constitution of India. In a very recent
judgment of the Supreme Court in the case
of Ajay Kumar Shukla and Others v.
Arvind Rai and Others in Civil Appeal
No. 5966 of 2021 and other connected
matters decided on 08th December, 2021
the Court referred to a number of decisions
on this point vide paragraph nos. 37, 38 and
39 These paragraphs run as under:

"37. This Court, time and again, has
laid emphasis on right to be considered for
promotion to be a fundamental right, as
was held by K. Ramaswamy, J., in the case
of Director, Lift Irrigation Corporation
Ltd. and Others vs. Pravat Kiran Mohanty
and Others6 in paragraph 4 of the report
which is reproduced below:

"4... There is no fundamental right to
promotion, but an employee has only right
to be considered for promotion, when it
arises, in accordance with relevant rules.
From this perspective in our view the
conclusion of the High Court that the
gradation list prepared by the corporation
is
in
violation
of
the
right
of
respondent/writ
petitioner
to
equality
enshrined under Article 14 read with
Article 16 of the Constitution, and the
respondent/writ petitioner was unjustly
denied of the same is obviously unjustified.

38. A Constitution Bench in case of
Ajit Singh vs. State of Punjab7, laying
4 All. Gaya Prasad Pandey Vs. State of U.P. & Ors.
741
emphasis on Article 14 and Article 16(1) of
the Constitution of India held that if a
person who satisfies the eligibility and the
criteria for promotion but still is not
considered for promotion, then there will
be clear violation of his/her's fundamental
right. Jagannadha Rao,J. speaking for
himself and Anand, CJI., Venkataswami,
Pattanaik, Kurdukar, JJ., observed the
same as follows in paragraphs 21 and 22
and 27:

"21: Articles 14 and 16(1): is right to
be considered for promotion a fundamental
right

22: Article 14 and Article 16(1) are
closely
connected.
They
deal
with
individual rights of the person. Article 14
demands that the "State shall not deny to
any person equality before the law or the
equal protection of the laws". Article 16(1)
issues a positive command that "there shall
be equality of opportunity for all citizens in
matters
relating
to
employment
or
appointment to any office under the State".

It has been held repeatedly by this
Court that clause (1) of Article 16 is a facet
of Article 14 and that it takes its roots from
Article 14. The said clause particularises
the generality in Article 14 and identifies,
in a constitutional sense "equality of
opportunity in matters of employment and
appointment to any office under the State.
The word "employment" being wider, there
is no dispute that it takes within its fold, the
aspect of promotions to posts above the
stage of initial level of recruitment. Article
16(1) provides to every employee otherwise
eligible for promotion or who comes within
the zone of consideration, a fundamental
right to be "considered" for promotion.
Equal opportunity here means the right to
be "considered" for promotion. If a person
satisfies the eligibility and zone criteria but
is not considered for promotion, then there
will
be
a
clear
infraction
of
his
fundamental right to be "considered" for
promotion, which is his personal right.
"Promotion based on equal opportunity
and seniority attached to such promotion
are facets of fundamental right under
Article 16(1)

xxxx xxxx xxxx xxxx xxxx

27. In our opinion, the above view
expressed in Ashok Kumar Gupta and
followed in Jagdish Lal and other cases, if
it is intended to lay down that the right
guarantee
to
employees
for
being
"considered" for promotion according to
relevant rules of recruitment by promotion
(i.e. whether on the basis of seniority or
merit) is only a statutory right and not a
fundamental right, we cannot accept the
proposition. We have already stated earlier
that the right to equal opportunity in the
matter of promotion in the sense of a right
to be "considered" for promotion is indeed
a fundamental right guaranteed under
Article 16(1) and this has never been
doubted in any other case before Ashok
Kumar Gupta right from 1950."

39. This Court in Major General
H.M. Singh, VSM vs. UOI and Another 8 ,
again reiterated the legal position, i.e.
right to be considered for promotion as a
fundamental right enshrined under Article
14 and Article 16 of the Constitution of
India.
The
relevant
extract
from
paragraph 28 is reproduced below:

"28. The question that arises for
consideration
is,
whether
the
nonconsideration of the claim of the appellant
would violate the fundamental rights
vested in him under Articles 14 and 16 of
the Constitution of India. The answer to
the aforesaid query would be in the
affirmative, subject to the condition that
the respondents were desirous of filling
the vacancy of Lieutenant-General, when
742 INDIAN LAW REPORTS ALLAHABAD SERIES
it became available on 1-1-2007. The
factual position depicted in the counteraffidavit reveals that the respondents
indeed were desirous of filling up the said
vacancy. In the above view of the matter,
if the appellant was the senior most
serving
Major-General
eligible
for
consideration
(which
he
undoubtedly
was),
he
most
definitely
had
the
fundamental right of being considered
against the above vacancy, and also the
fundamental right of being promoted if he
was adjudged suitable. Failing which, he
would be deprived of his fundamental
right of equality before the law, and equal
protection of the laws, extended by Article
14 of the Constitution of India. We are of
the view that it was in order to extend the
benefit of the fundamental right enshrined
under Article 14 of the Constitution of
India, that he was allowed extension in
service on two occasions, firstly by the
Presidential Order dated 29-2-2008, and
thereafter, by a further Presidential Order
dated 30-5-2008. The above orders clearly
depict that the aforesaid extension in
service was granted to the appellant for a
period of three months (and for a further
period of one month), or till the approval
of the ACC, whichever is earlier. By the
aforesaid orders, the respondents desired
to treat the appellant justly, so as to
enable him to acquire the honour of
promotion to the rank of LieutenantGeneral (in case the recommendation
made in his favour by the Selection Board
was
approved
by
the
Appointments
Committee
of
the
Cabinet,
stands
affirmed). The action of the authorities in
depriving the appellant due consideration
for promotion
to the
rank of
the
Lieutenant-General would have resulted in
violation of his fundamental right under
Article 14 of the Constitution of India.
Such an action at the hands of the
respondents would unquestionably have
been arbitrary."

21. The Court in the above case
though was considering the legality of the
seniority list and if illegally prepared
seniority
list
being
against
statute,
continued, it would defeat a rightful claim
of a candidate for promotion placing him
under his juniors.

Speaking for the bench, his lordship
Hon'ble
Justice
Vikram
Nath
vide
paragraph 40 has observed thus:

"40. If the seniority list is allowed to
be sustained then the engineers who are
more meritorious in the Mechanical and
Civil streams than the Junior Engineers of
the Agricultural stream would be deprived
of their right of being considered for
promotion and in fact their right would
accrue only after all the Junior Engineers
of the Agricultural stream selected in the
same selection are granted promotion. For
these reasons also the seniority list in
question must go."

22. Besides above, the Court is of the
considered view that merely because there
was excess number of booking clerks than
the sanctioned posts, this by itself should
not have been a ground to deny promotion
to the petitioner when juniors to the
petitioner had come to be promoted by the
Departmental Promotion Committee vide
its resolution dated 24.11.2017. Petitioner's
candidature certainly fell within the zone
of
consideration
of
promotion
on
24.11.2017 and the respondent seriously
erred in law in ignoring the claim of the
petitioner just because his representation
against
adverse
entry
had
remained
undisposed of. Thus the order impugned
denying claim of promotion to the
4 All. Gaya Prasad Pandey Vs. State of U.P. & Ors.
743
petitioner is absolutely unsustainable and is
vitiated for arbitrary and discriminatory
approach of the authorities.

23. Article 14 of the Constitution
provides for not only equality before law
but also equal protection of laws. The
fundamental right to be considered for
promotion as discussed above indicates at
ruling out any kind of approach by an
employer that leads to discrimination. One
must understand that not only by express
act
but
even
where
by
conduct
discrimination
crepts
in,
it
is
an
arbitrariness on the part of employeer
because
whatever
is
arbitrary,
discriminatory
and
unreasonable
is
violative of the Article 14 and 21 of the
Constitution of India.

24. In the case of Maneka Gandhi v.
Union of India and Another, AIR 1978
SC 597 vide 56 the Constitution Bench has
held thus:

"56. Now, the question immediately
arises as to what is the requirement
of Article 14 : what is the content and
reach of the great equalising principle
enunciated in this article ? There can be no
doubt that it is a founding faith of the
Constitution. It is indeed the pillar on
which rests securely the foundation of our
democratic republic. And, therefore, it must
not be subjected to a narrow, pedantic or
lexicographic
approach._
No
attempt
should be made to truncate its all
embracing scope and meaning for, to do so
would be to violate its activist magnitude.
Equality is a dynamic concept with many
aspects and dimensions and it cannot be
imprisoned
Within
traditional
and
doctrinaire limits. We must reiterate here
what was pointed out by the majority in E.
P. Royappa v. State of Tamil Nadu &
Another (1)
namely,
that
"from
a
positivistic point of view, equality is
antithetic to arbitrariness. In fact equality
and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic,
while the other, to the whim and caprice of
an absolute monarch. Where an act is
arbitrary, it is implicit in it that it is
unequal both according to political logic
and constitutional law and is therefore
violative of Article 14". Article 14 strikes,
at arbi- trariness in State action and
ensures fairness and equality of treatment.
The principle of reasonableness, which
legally as well as philosophically, is an
essential element of equality or nonarbitrariness pervades Article 14 like a
brooding omnipresence and the procedure
contemplated by Article 21 must answer the
best of reasonableness in order to be in
conformity with Article 14. It must be
"'right and just and fair" and not arbitrary,
fanciful or oppressive; otherwise, it would
be no procedure at all and the requirement
of Article 21 would not be satisfied. How
far natural justice is air essential element
of procedure established by law

25. In Service jurisprudence where we
refer employer employee relationship to be
governed by contract of employment, it is
embedded in such contract that all service
benefits to which under his contract of
employment and the relevant service rules,
an employee is entitled, same shall be
conferred upon him without discrimination.

26. Every establishment, be it
government or non government, runs on its
workforce that are employed at various
stages i.e. Labour , technical hand, office
work,
administration/management
that
form very important components of entire
machinery like quartz in a watch that are
though made of very common materials put
744 INDIAN LAW REPORTS ALLAHABAD SERIES
while placed under mechanical stress
maintain a precise frequency standard.
Those who run administration of an
establishment are under an obligation to
ensure that workforce is properly placed
and taken good care of to get from them the
maximum output. They are at the bottom
but if duly raised looking to their eligibility
and utility, these employees will give their
maximum
to
the
establishment.
The
success story of every establishment shows
that it has been able to maintain high
quality and standard of work.

27. Annual increments, increments on
crossing the efficiency bar, Assured Career
Progression and promotion are all aimed at
maintaining the requisite vigour that would
make
establishments
achieving
their
objectives with which that have come into
existence. It is duty of those who are at
highest echelon of the establishment to
ensure that work force is not treated like a
herd of sheep, instead it be duly treated and
honoured as horsepower, necessary to
make establishments move on. Stagnation,
unnecessary harassment, discrimination if
meted out to the employees forcing them to
unnecessary litigation, the system will
stand forced to bleed discontent and
corruption. Employees if adopt such
attitude and become indifferent, then top
boses of the establishment are only to be
blamed.

28. The petitioner in the present case
has
certainly
been
wholly
illegally
discriminated
against
for
not
being
considered
for
promotion
by
the
Departmental Promotion Committee while
it considered promotion from Class IV
posts to class III posts on 24.11.2017.

29. In the case of U.P. State
Electricity
Board
and
Another
v.
Kharak Singh and Another, R.K.Singh
v. State of U.P. and Others and recently
and in the case of Ramesh Kumar v.
Union of India and Others, Supreme
Court has considered the issue of giving
consequential benefits to an employee who
had been wholly illegally denied promotion
and had been made junior to his juniors in
the
establishment
for
the
fault
of
authorities.

30. Going through three judgments
referred to hereinabove following three
principles emerge:

a. adverse reports if are expunged or if
not as per the rules, and the time has run
out for affirming or rejecting the same by
the authority as in the present case, the
same shall not be a reason to deny
promotion;

b. once adverse entry has come to be
expunged may be from a subsequent date
such employee would be entitled to service
benefits w.e.f the date, it had become due;
and

c. principle of "no work no pay" is
not applicable in cases where an employee
has been denied promotion for no fault of
his own. So not only seniority has to be
restored giving promotion to him from the
date his juniors have been promoted with
all consequential monetary benefits to
which such employee would have been
otherwise entitled, had he been promoted
in time but also all other consequential
benefits
should
be
conferred
with
retrospective
effect
upon
such
an
employee

31. In my considered view, aforesaid
three
principles
enunciated
in
the
judgments of the Supreme Court (supra)
are fully attracted and applicable to the
petitioner's
case
in
hand.
4 All. Pramod Kumar Shukla & Anr. Vs. The State of U.P. & Ors.
745

32. In view of above, this petition
succeeds and is allowed. The order dated
16.07.2019
passed
by
the
Regional
Manager, U.P. Transport Corporation,
Kanpur, annexure 11 to the writ petition, is
hereby quashed.

33. Respondent concerned is directed
to constitute a Departmental Promotion
Committee to consider promotion of the
petitioner w.e.f. the date juniors to the
petitioner have been promoted, with all
consequential benefits and pass orders
accordingly.

34. The above task as directed
hereinabove, shall be accomplished by the
concerned respondent authority within a
period of two months from the date of
production of certified copy of the order.
----------
(2022)04ILR A745
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ-A No. 4183 of 2022

Pramod Kumar Shukla & Anr. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satyam Pandey, Sri R.K. Ojha (Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Manas Bhargava

A. Service Law - UP Lokayukta and UpLokayuktas Act, 1975 - Sections 12(4) &
17(2) - Recommendation for punishment
- Jurisdiction of Lokayukta under the Act
- Challenge to the recommendation of
Lokayukta - Permissibility - Interference
by the court, when warranted - Held, the
Lokayukta has rightly recommended the
punishment of the petitioners by passing
the order dated 22.09.2021. No order or
proceeding of the Lokayukta can be
challenged,
reviewed,
canceled
or
questioned in any court unless it has been
passed without jurisdiction. (Para 15)
B. Service - Departmental enquiry -
Charge-sheet - Scope of interference by
the court - Principle laid down - Held, the
law is that the Courts are not to grant
stay/quash the disciplinary proceedings
nor they should go into the correctness or
otherwise of the charges leveled in the
charge-sheet
and
the
departmental
inquiry should be allowed to continue
uninterrupted to come to its natural
conclusion - In some very rare and
exceptional cases the High Court can
quash a charge-sheet or show-cause
notice if it is found to be wholly without
jurisdiction or for some other reason if it is
wholly illegal - However, ordinarily the
High Court should not interfere in such a
matter.(Para 24 and 26)
Writ petition dismissed. (E-1)
List of Cases cited :-
1. Secretary, Ministry of Defence & ors. Vs
Prabhash Chandra Mishra; (2012) 11 SCC
565
2. St. of U.P. Vs Shri Brahm Datt Sharma & anr.;
AIR 1987 SC 943
3. St. of H.P. Vs B.C. Thakur; 1994 SCC (L&S)
4.U.O.I. Vs Ashok Kacker; 1995 Supp (1) SCC
180
5. Secretary to Government, Prohibition &
Excise Department Vs L. Srinivasan; (1996) 3
SCC 157
6. St. of Orrisa & anr. Vs Sangram Keshari Misra
& anr.; (2010) 13 SCC 311
7. U.O.I. & ors. Vs Upendra Singh; (1994) 3 SCC
357
8. U.O.I. & anr. Vs Kunisetty Satyanarayana;
(2006) 12 SCC 28