# Mrityunjai Kumar v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 543
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-06
- **Case number:** Service Single No. 4132 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mrityunjai-kumar-v-state-of-u-p-ors-47444
- **Pages:** 6

## Headnote

A. Service Law - Promotion on the post of
Superintending Engineer - Pendency of
Departmental enquiry - Departmental
Promotion Committee (DPC) decision -
Adverse entry was not in existence on the
date of meeting of DPC - It's effect -
Held, DPC can consider only such material
which was available before it on or before
the date of DPC - No adverse material of
any kind whatsoever can be considered
which came into the notice before the
competent authority or before the DPC
after the meeting of DPC. (Para 10)
B. Pleading - No specific denial of recital
of writ petition - It's effect - Held, the law
is trite that the specific recital of the
petition should be denied specifically
citing reasons and legal position, if any,
and simple denial is no denial in the eyes
of law. (Para 9)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

9 All Mrityunjai Kumar Vs. State of U.P. & Ors.
543
(2021)09ILR A543
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.09.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 4132 of 2021

Mrityunjai Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mahendra Pratap Singh, Abhishek Dwivedi

Counsel for the Respondents:
C.S.C.

A. Service Law - Promotion on the post of
Superintending Engineer - Pendency of
Departmental enquiry - Departmental
Promotion Committee (DPC) decision -
Adverse entry was not in existence on the
date of meeting of DPC - It's effect -
Held, DPC can consider only such material
which was available before it on or before
the date of DPC - No adverse material of
any kind whatsoever can be considered
which came into the notice before the
competent authority or before the DPC
after the meeting of DPC. (Para 10)
B. Pleading - No specific denial of recital
of writ petition - It's effect - Held, the law
is trite that the specific recital of the
petition should be denied specifically
citing reasons and legal position, if any,
and simple denial is no denial in the eyes
of law. (Para 9)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Delhi Jal Board Vs Mahinder Singh; (2000) 7
SCC 210
2. Brij Nath Pandey Vs St. of U.P.; (2001) 9 SCC
398
3. Gyan Prakash Pandey Vs St. of U.P. & ors.
[2018 (6) ADJ 670 (DB) (LB)]
4. State of U.P. through Principal Secretary,
Irrigation & Water Resource Vs Suresh Pandey;
2019 Legal Eagle (ALD) 926
5. St. of U.P. & anr. Vs Nand Kumar Singh,
Special Appeal No. 478 of 2010
6. R. K. Singh Vs State of U.P. & ors.1991 Supp
(2) SCC 126

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

1. Heard Sri Mahendra Pratap Singh,
learned counsel for the petitioner and Sri
Vinod Kumar Shukla, learned Standing
Counsel for the State-respondents.

2. Rejoinder affidavit sent by the
Registry is taken on record.

3. By means of this petition, the
petitioner has prayed following reliefs:-

"i. issue a writ, order or direction
in the nature of Certiorari to quash the
impugned orders dated 04-01-2021 and 0506-2020 passed by the opposite party no.1
contained as annexure no.1 & 2 to this writ
petition.

ii. issue a writ, order or direction
in the nature of Mandamus commanding
the respondents to open seal cover and
promote the petitioner on the post of
Superintendent
Engineer
in
view
of
recommendation
of
Departmental
Promotion Committee convened on 19-072018 from the date other incumbents were
considered and promoted in pursuance to
recommendation
of
Departmental
Promotion Committee held on 19-07-2018,
with all consequential benefits.

iii. issue a writ, order or direction
in the nature of Mandamus commanding
544 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents not to make any promotion on
the post of Chief Engineer until the
petitioner is promoted on the post of
Superintendent
Engineer
in
view
of
recommendation
of
Departmental
Promotion Committee convened on 19-072018."

4. The precise contention of learned
counsel for the petitioner is that for making
promotion of the petitioner on the post of
Superintending Engineer his issue was kept
under sealed cover by the Departmental
Promotion Committee (hereinafter referred
to as "DPC") dated 19.7.2018. However, no
decision was taken by the date of review
DPC i.e. 11.7.2019. The reason to keep the
promotion of the petitioner under sealed
cover was that the petitioner was awarded
adverse entry vide order dated 12.12.2018,
however, the said punishment was not
prescribed
under
the
Service
Rules.
Therefore, the petitioner challenged the
order dated 12.12.2018 before this Court by
filing Writ Petition 34856 (S/S) of 2019;
Mrityunjai Kumar Vs. State of U.P. and
others, placing reliance upon the dictum of
the Hon'ble Apex Court in re; Vijay Singh
Vs. State of U.P. and others, (2012) 5 SCC
242, wherein the Apex Court has held that
the employee may not be awarded any
punishment which is not prescribed under
the Rules. On the basis of aforesaid dictum
of the Hon'ble Apex Court, this Court vide
judgment and order dated 7.1.2020 set
aside the order dated 12.12.2018 directing
the opposite parties to make promotion of
the petitioner on the post of Superintending
Engineer
in
the
Minor
Irrigation
Department ignoring such punishment
order dated 12.12.2018.

5. On 9.1.2020, the Government has
passed an order expunging such special
adverse entry from the service record of the
petitioner awarding him "Utkrishth" entry
for the period in question. However, the
petitioner
was
not
given
promotion
pursuant to the order dated 7.1.2020. Vide
order
dated
5.6.2020,
claim
of
the
petitioner for promotion on the post of
Superintending Engineer has been turned
down on the basis of pending departmental
enquiry initiated on 24.1.2020.

6. Learned counsel for the petitioner
has submitted that since the aforesaid
departmental enquiry may not be treated as
bar promoting the petitioner on the post of
Superintending Engineer inasmuch as as
per trite law, only such material can be
considered which was existing at the time
of DPC and admittedly, when the DPC in
question has met on 19.7.2018, no such
material
was
available
with
the
Department. Therefore, the petitioner filed
another writ petition bearing Service Single
No.8490 of 2020; Mrityunjai Kumar Vs.
State of U.P., and the said writ petition was
decided finally vide judgment and order
dated 10.6.2020 directing the opposite
parties to take fresh decision in the issue of
the petitioner. Operative portion of the
judgment and order dated 10.6.2020 is
being reproduced herein below:-

"Be that as it may the fact of the
matter is that the earlier proceedings have
come to an end. Therefore the least that is
require to be done by the competent
authority is to take a decision as to whether
the sealed cover is required to be opened
or not, if not, the reasons therefore in the
light of the aforesaid Government Order
dated
28.05.1997
and
such
other
government orders or rules as may be
applicable as also the law on the subject.
The matter cannot be kept in limbo
indefinitely.
In
fact
when
a
recommendation is kept in sealed cover as
9 All Mrityunjai Kumar Vs. State of U.P. & Ors.
545
and when the next DPC meets, it is
necessarily to be opened and if the
proceedings are still pending it is again to
be kept in sealed cover otherwise they are
to be acted upon unless there is some legal
impediment in this regard. But all these are
issues which are to be considered by the
State Government. Let a decision be taken
on an representation being filed by the
petitioner in this regard, as aforesaid,
within one month of such representation
being submitted. The representation itself
be submitted within 10 days.

It is made clear that this Court
has not decided the merits of the claim of
the petitioner. All points are open for
consideration at the competent level in
accordance with rules/law.

With these observations, this
petition is disposed of."

7. In compliance of the aforesaid
order, the impugned order dated 4.1.2021
has been passed by opposite party no.1
rejecting the claim of the petitioner for
promotion on the post of Superintending
Engineer
on
the
basis
of
pending
departmental enquiry since 24.1.2020.
Learned counsel for the petitioner has taken
specific plea to that effect in para-43 of the
writ petition, which reads as under:-

"43. That name of the petitioner
was considered by the Departmental
Promotion Committee convened on 19-072018, but recommendation pertaining to
the petitioner were kept in seal cover in
consideration of the fact that departmental
enquiry proceedings were pending on the
date,
when
Departmental
Promotion
Committee was convened i.e. on 19-072018. Now the Departmental Enquiry
Proceedings having been concluded vide
order dated 12-12-2018 and the order
dated 12-12-2018 having been quashed by
the Hon'ble court vide order dated 07-012020, the petitioner is fully entitled for
promotion
in
pursuance
to
recommendation
of
the
Departmental
Promotion Committee convened on 19-072018."

8.

Replying
to
the
aforesaid
contention, no specific explanation has
been given by the State in the counter
affidavit vide para-15, which reads as
under:-

"15.
That
the
contents
of
paragraphs 43 and 44 of the writ petition
are not admitted as stated hence denied
and in reply thereto it is stated that the
necessary proceeding with respect to the
determination of the process of closing
envelope proceedings, etc. in the elections
for promotions of government employees of
the State was initiated as per the
arrangement given in Chapter-11 of Office
Memorandum No. 13/21/89-ka-1997 dated
28.5.1997."

9. The law is trite that the specific
recital of the petition should be denied
specifically
citing
reasons
and
legal
position, if any, and simple denial is no
denial in the eyes of law. In para-15 of the
counter
affidavit,
I
am
unable
to
comprehend as to what has been indicated
by the State referring Chapter-11 of the
Government order dated 28.5.1997. This is
not Chapter-11 but it is para-11 of the
Government
Order
dated
28.5.1997.
However,
para-11
of
the
aforesaid
Government Order simply provides that at
the time of meeting of DPC, if any adverse
material comes into the notice of the
Committee, the issue of the employee may
be kept under sealed cover. In the present
case, admittedly, the DPC had met on
19.7.2018 for promoting the petitioner on
546 INDIAN LAW REPORTS ALLAHABAD SERIES
the post of Superintending Engineer and on
account of adverse entry awarded to the
petitioner on 12.12.2018, his promotion
was kept under sealed cover pursuant to
para-11 of the Government Order dated
28.5.1997.
Further,
on
account
of
impugned order dated 12.12.2018, the
petitioner could not get promotion vide
review DPC dated 11.7.2019, however, as
soon as the order dated 12.12.2018 has
been set aside by this Court on 7.1.2020
and
such
adverse
remark
has
been
expunged by the Government on 9.1.2020,
the sealed cover of the petitioner should
have been opened and he should have been
promoted on the post of Superintending
Engineer.

10. Having heard learned counsel for
the parties and having perused the material
available on record, I am of the considered
opinion that the DPC can consider only
such material which was available before it
on or before the date of DPC. No adverse
material of any kind whatsoever can be
considered which came into the notice
before the competent authority or before
the DPC after the meeting of DPC. In the
present case, the foundation and basis of
the impugned order dated 4.1.2021 is that
one departmental enquiry was pending
against the petitioner w.e.f. 24.1.2020
under Rule 7 of Rules, 1999, therefore, in
view of para-11 of the Government Order
dated 28.5.1997, the issue of the petitioner
should be kept under sealed cover until
such departmental enquiry concludes.

11. The aforesaid reason is patently
illegal,
arbitrary,
discriminatory
and
unwarranted on the face of it inasmuch as
the case of the petitioner is not to be
considered
afresh
vide
DPC
dated
20.3.2020 but the case of the petitioner
would be considered pursuant to the DPC
dated 19.7.2018 when his promotion was
kept under sealed cover. There is no
dispute that the reason for which the
promotion of the petitioner was kept under
sealed cover on 19.7.2018 is not in
existence since 7.1.2020 when the very
reason i.e. order dated 12.12.2018 has been
set aside by this Court in Service Single
No.34856 of 2019. Therefore, para-11 of
the Government Order dated 28.5.1997 has
been wrongly invoked vide impugned order
dated 4.1.2021. Since the order dated
7.1.2020 passed by this Court in Service
Single No.34856 of 2019 has attained
finality, therefore, in compliance of the
aforesaid order the sealed cover of the
petitioner should be opened and he should
be promoted on the post of Superintending
Engineer
in
the
Minor
Irrigation
Department
pursuant
to
the
recommendation
of
the
DPC
dated
19.7.2018. The Hon'ble Apex Court in re;
Delhi Jal Board Vs. Mahinder Singh,
(2000) 7 SCC 210, has observed as under:-

"5. The right to be considered by
the Departmental Promotion Committee is
a fundamental right guaranteed under
Article 16 of the Constitution of India,
provided a person is eligible and is in the
zone of consideration. The sealed cover
procedure permits the question of his
promotion to be kept in abeyance till the
result of any pending disciplinary inquiry.
But the findings of the disciplinary inquiry
exonerating the officer would have to be
given effect to as they obviously relate back
to the date on which the charges are
framed. If the disciplinary inquiry ended in
his favour, it is as if the officer had not
been subjected to any disciplinary inquiry.
The sealed cover procedure was envisaged
under the rules to give benefit of any
assessment made by the Departmental
Promotion Committee in favour of such an
9 All Mrityunjai Kumar Vs. State of U.P. & Ors.
547
officer, if he had been found fit for
promotion and if he was later exonerated in
the disciplinary inquiry which was pending
at the time when DPC met. The mere fact
that
by
the
time
the
disciplinary
proceedings in the first inquiry ended in his
favour and by the time the sealed cover was
opened to give effect to it, another
departmental enquiry was started by the
Department, would not, in our view, come
in the way of giving him the benefit of the
assessment by the first Departmental
Promotion Committee in his favour in the
anterior selection. There is, therefore, no
question of referring the matter to a larger
Bench."

12. The Hon'ble Apex Court in re;
Brij Nath Pandey Vs. State of U.P.,
(2001) 9 SCC 398, vide para-2 has
observed as under:-

"2. Heard counsel on both sides.
The appellant was denied promotion in
the selection which took place in 1995
when, according to him, his junior was
promoted. According to the appellant the
adverse entries in his annual confidential
reports of 1985-86 and 1986-87 could not
have been taken into consideration in
view of the fact that the appellant was
subsequently
allowed
to
cross
the
efficiency bar since 1-1-1992 vide an
order dated 20-5-1992. In our view this
contention of the appellant is correct and
the adverse entries in 1985-86 and 198687 cannot come in the way of the
appellant for further promotion once he
was allowed to cross the efficiency bar on
20-5-1992. So far as the adverse remarks
of 1993-94 are concerned at the time of
the selection in 1995 the said adverse
remarks were there on record but they
were subsequently deleted on 6-7-1996.
Therefore, the appellant is entitled to a
fresh consideration for his promotion in
1995. The respondents are therefore
directed to consider the case of the
appellant afresh with reference to the
selection of 1995 when his junior was
promoted."

13. The Division Bench of this
Court in re; Gyan Prakash Pandey Vs.
State of U.P. and Others, [2018 (6) ADJ
670 (DB) (LB)], State of U.P. through
Principal
Secretary,
Irrigation
&
Water Resource Vs. Suresh Pandey,
2019 Legal Eagle (ALD) 926, has clearly
held that only those material can be
considered by the DPC which are
available before the DPC.

14. The Division Bench of this
Court in re; State of U.P. & Another Vs.
Nand Kumar Singh, Special Appeal
No.478
of
2010,
vide
para-7
has
interpreted para-11 of the Government
Order dated 28.5.1997 as under:-

"7. In our opinion, once three
cases are manifest under which the sealed
cover procedure has to be followed,
Paragraph 11 will have to be considered in
that context, otherwise this would result in
adding another case. The only way to
harmonize
the
rules,
considering
paragraphs 2 and 11, is to hold that if on
the date of D.P.C. there was a charge-sheet
and this was not within the knowledge of
the Selection Committee even at the stage
of issuing the letter of appointment, the
sealed cover procedure can be followed. In
our opinion, this would be a proper and
harmonious construction of the two rules."

15. Not only the above, the Hon'ble
Apex Court in re; R.K. Singh Vs. State of
U.P. & Others, 1991 Supp (2) SCC 126,
has held that after expungtion of adverse
548 INDIAN LAW REPORTS ALLAHABAD SERIES
material, the employee would be entitled
for the benefits w.e.f. the date when it was
due to him.

16. Admittedly, in the present case,
the issue of the petitioner was kept under
sealed cover on 19.7.2018 for the reason he
was awarded adverse entry vide order dated
12.12.2018 and after setting aside the order
dated 12.12.2018, which was adverse
material before the DPC held on 19.7.2018,
the petitioner was legally entitled for the
promotion as per recommendation of DPC
dated 19.7.2018.

17. Therefore, in view of the above,
the writ petition is allowed.

A writ in the nature of certiorari
is issued quashing the orders dated
4.1.2021 and 5.6.2020 passed by opposite
party
no.1, which
are
contained
in
Annexure Nos.1 & 2 to the writ petition. A
writ in the nature of mandamus is issued
commanding the opposite parties to open
the sealed cover of the petitioner and
promote him on the post of Superintending
Engineer in view of the recommendation of
Departmental
Promotion
Committee
convened on 19.7.2018 from the date the
other incumbents were considered for
promotion
pursuant
to
such
recommendation.

18. The petitioner shall be entitled for
all consequential service benefits.

19. No order as to costs.
----------
(2021)09ILR A548
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2021

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 11867 of 2020
&
Service Single No. 12047 of 2021

Atma Singh ...Petitioner
Versus
U.P. State Bridge Corporation Ltd. & Anr.
 ...Respondents

Counsel for the Petitioner:
Ashok Shukla

Counsel for the Respondents:
Shishir Jain, Ram Ratan

A. Service Law - Departmental enquiry -
Limitation of time fixed by the High Court
- Non compliance thereof - No leave of
High Court sought - It's effect - Held,
where there is a stipulation of time by the
Court, it will not be open to the employer
to disregard that stipulation unless the
time is extended by the Court itself on the
application
of
the
department
-
Punishment of censure entry was held
illegal, arbitrary, unwarranted and in
violation of the decision of Full Bench of
this
Court
in
Abhishek
Prabhakar
Awasthi's case. -. (Para 23 and 26)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Abhishek Prabhakar Awasthi Vs New India
Assurance Company Ltd. & ors. 2014 (6) ADJ
641.
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ashok Shukla, learned
counsel for the petitioner and Sri Ram
Ratan, learned counsel for the respondents.

2. By means of first writ petition i.e.
Service Single No. 11867 of 2020, the
petitioner has prayed following reliefs:-