# Vikram Singh Tomar v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 41
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-21
- **Case number:** Writ A No. 9035 of 2023
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikram-singh-tomar-v-state-of-u-p-ors-50922
- **Pages:** 10

## Headnote

Law
-
Promotion
-
U.P.Subordinate Education Clerical Cadre
42 INDIAN LAW REPORTS ALLAHABAD SERIES
Service Rules, 1985 - Government Order
dated 28.5.1997 - Sealed Cover Procedure
- Petitioner, eligible for promotion from Head
Assistant to Administrative Officer, was not
considered by the selection committee due to
pending disciplinary proceedings - Juniors
promoted vide order dated 24.11.2021 -
Disciplinary
proceedings
concluded
on
10.6.2022 with petitioner exonerated - Held,
Government Order dated 28.5.1997 mandates
that the selection committee must consider
eligible
candidates
for
promotion
despite
pending
disciplinary
proceedings,
with
recommendations kept in sealed cover - Upon
exoneration, the employee is entitled to notional
promotion from the date of promotion of their
immediate
junior
-
Failure
to
consider
petitioner's case and adopt sealed cover
procedure violates the Government Order -
Impugned order dated 13.4.2023 rejecting
petitioner's representation unsustainable. (Paras
12, 20, 22, 23)

B. Service Law - Promotion - Relevance of
Adverse Remarks - Impugned order cited
adverse remarks by District Basic Education
Officer, Firozabad, dated 11.11.2022, as a
ground for denying promotion - Held, remarks
made after the promotion date (24.11.2021) are
irrelevant for the purpose of petitioner's
promotion claim - District Basic Education
Officer, not being the appointing authority, lacks
jurisdiction to make binding remarks unless
approved by the competent authority - Adverse
remarks not sustainable as a basis for denying
promotion. (Para 24)

Writ Petition Allowed - Impugned Order
Quashed
-
Respondent
Directed
to
Consider
Notional
Promotion
from
24.11.2021.

List of Cases cited:

U.O.I. & ors. Vs K.VS Jankiraman & ors., AIR
1991 SC 2010

## Text

1 All. Vikram Singh Tomar Vs. State of U.P. & Ors.
41
retire within one year, of the order of
recovery.

(iii) Recovery from employees,
when the excess payment has been made
for a period in excess of five years, before
the order of recovery is issued.

(iv) Recovery in cases where an
employee has wrongfully been required to
discharge duties of a higher post, and has
been paid accordingly, even though he
should have rightfully been required to
work against an inferior post.

(v) In any other case, where the
Court arrives at the conclusion, that
recovery if made from the employee, would
be iniquitous or harsh or arbitrary to such
an extent, as would far outweigh the
equitable balance of the employer's right to
recover."

(47) In the case of Punjab State Cooperative Agriculture Development Bank
(supra), the Apex Court has held that the
exposition of the legal principles culled out is
that an amendment having retrospective
operation which has the effect of taking
away the benefit already available to the
employee under the existing rule indeed
would divest the employee from his vested
rights and that being so it would be held to
be violative of the rights guaranteed under
Article s 14 and 16 of the constitution.

(48) In view of what has been stated
above, all the three writ petitions are allowed
with the following directions:-

• Ignoring the First Amendment
made in 2021, only the petitioners of
aforesaid three petitions are entitled for
pension from the date of their retirement of
65 years.

• For the above purpose, the
impugned order dated 11.11.2021 passed in
Writ-A No. 6486 of 2022 and the impugned
order dated 04.04.2022 passed in Writ-A No.
6487 of 2022 are quashed.

• Since the pension has been
stopped to the petitioners, the respondents are
directed to pay pension as also other
allowances, as was drawing before the
amendment in Rule 15 of Rules, 2021. In this
regard, the order of cancellation of pension
issued by the respondents is quashed.

• Recovery, if any, issued in the
case of the petitioners has also been quashed
and the respondents are directed to pay the
recovered amount within a period of two
months from the date of receipt of a certified
copy of this order.

• It is made clear that in the
peculiar facts and circumstances of the case,
this order is applicable to the petitioners of
the aforesaid three petitions and shall not be
treated as a precedent.

(49) No order as to costs.
----------
(2024) 1 ILRA 41
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ A No. 9035 of 2023

Vikram Singh Tomar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Himanshu Singh, Sri
Ashok Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Promotion
-
U.P.Subordinate Education Clerical Cadre
42 INDIAN LAW REPORTS ALLAHABAD SERIES
Service Rules, 1985 - Government Order
dated 28.5.1997 - Sealed Cover Procedure
- Petitioner, eligible for promotion from Head
Assistant to Administrative Officer, was not
considered by the selection committee due to
pending disciplinary proceedings - Juniors
promoted vide order dated 24.11.2021 -
Disciplinary
proceedings
concluded
on
10.6.2022 with petitioner exonerated - Held,
Government Order dated 28.5.1997 mandates
that the selection committee must consider
eligible
candidates
for
promotion
despite
pending
disciplinary
proceedings,
with
recommendations kept in sealed cover - Upon
exoneration, the employee is entitled to notional
promotion from the date of promotion of their
immediate
junior
-
Failure
to
consider
petitioner's case and adopt sealed cover
procedure violates the Government Order -
Impugned order dated 13.4.2023 rejecting
petitioner's representation unsustainable. (Paras
12, 20, 22, 23)

B. Service Law - Promotion - Relevance of
Adverse Remarks - Impugned order cited
adverse remarks by District Basic Education
Officer, Firozabad, dated 11.11.2022, as a
ground for denying promotion - Held, remarks
made after the promotion date (24.11.2021) are
irrelevant for the purpose of petitioner's
promotion claim - District Basic Education
Officer, not being the appointing authority, lacks
jurisdiction to make binding remarks unless
approved by the competent authority - Adverse
remarks not sustainable as a basis for denying
promotion. (Para 24)

Writ Petition Allowed - Impugned Order
Quashed
-
Respondent
Directed
to
Consider
Notional
Promotion
from
24.11.2021.

List of Cases cited:

U.O.I. & ors. Vs K.VS Jankiraman & ors., AIR
1991 SC 2010

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard Sri Ashok Khare, learned
Senior Advocate assisted by Sri Himanshu
Singh, learned counsel appearing for the
petitioner and learned Standing Counsel
appearing for the respondents.

2. Petitioner through this writ petition
has assailed the order dated 13.4.2023
passed by the Additional Director of
Education (Basic), U.P. Prayagraj, whereby
his representation for grant of promotion on
the post of Administrative Officer with
effect from the date of promotion of his
juniors, has been rejected on the ground
that on the date when his juniors were
given
promotion
on
the
posts
of
Administrative
Officer,
disciplinary
proceedings were pending against him and
further District Basic Education Officer,
Firozabad vide his letter dated 11.11.2022
has informed that petitioner is full of
spontaneity and does not care to follow the
rules and regulations.

3. Facts of the case, in brief, are that
petitioner was initially appointed on the
post of Junior Clerk and was posted at
Government Normal School Goverdhan,
District Mathura vide appointment order
dated 24.3.1988. Petitioner was granted
promotion on the post of Senior Clerk vide
order dated 19.2.1994 and was posted in
the office of District Inspector of Schools,
Etah. Later on, vide order dated 26.4.2013
passed by the Additional Director of
Education (Basic), U.P. Prayagraj, post of
Senior Clerk was re-designated as Head
Assistant.

4. Petitioner in the capacity of Head
Assistant was transferred at different places
and lastly, he was posted as Head Assistant
in the office of District Inspector of
Schools, Agra.

5. The terms and conditions of the
service on the post of Head Assistant are
1 All. Vikram Singh Tomar Vs. State of U.P. & Ors.
43
governed by the Uttar Pradesh Subordinate
Education Clerical Cadre Service Rules,
1985 (hereinafter referred to as 'the Rules
of 1985'). Under the Rules of 1985, next
promotional post of the Head Assistant is
Administrative Officer and 100% posts of
Administrative Officer are filled in by way
of promotion of Head Assistants on the
criteria of seniority subject to rejection of
unfit. Seniority list of the incumbents
working on the posts of Senior Clerk (redesignated
as
Head
Assistant)
was
published under the signatures of the
Additional Director of Education (Basic),
U.P. Prayagraj on 24.7.2007. The name of
petitioner finds place at serial no. 361 in the
aforesaid seniority list of Head Assistants.

6. Services of the petitioner while he
was working on the post of Head Assistant
in the office of District Basic Education
Officer,
Agra,
were
placed
under
suspension vide order dated 12.2.2021
passed by the Additional Director of
Education (Basic), U.P., Prayagraj. A
charge sheet was issued to the petitioner
and thereafter, vide order dated 6.8.2021
passed by the Additional Director of
Education
(Basic),
U.P.,
Prayagraj,
petitioner was reinstated in service with full
salary with a rider that disciplinary
proceedings initiated against him will
continue. The Additional Director of
Education (Basic) U.P. Prayagraj passed
another order on 9.8.2021 whereby place of
posting of the petitioner was changed and
he was posted in the office of District Basic
Education Officer, Firozabad.

7.

The
aforesaid
disciplinary
proceedings initiated against the petitioner
were concluded and the Additional Director
of Education (Basic), U.P., Prayagraj
passed an order on 10.6.2022, whereby
disciplinary
proceedings
against
the
petitioner were dropped on the ground that
the charges levelled against the petitioner
were not found proved.

8. The disciplinary proceedings
against the petitioner remained pending
from 12.2.2021 till 10.6.2022 and during
the aforesaid period exercise of promotion
from the post of Head Assistant to the post
of Administrative Officer was carried out
and vide order dated 24.11.2021, on the
basis of recommendations of the selection
committee, twenty four Head Assistants
were granted promotion on the posts of
Administrative Officer. Petitioner in his
writ petition has categorically stated that
the selection committee constituted for the
aforesaid promotions did not consider his
case for the reason that disciplinary
proceedings were pending against him.

9. The Government of U.P. has issued
a Government Order on 28.5.1997, wherein
it has been provided that if disciplinary
proceedings against a government servant
are pending, then his case for promotion to
higher post shall be considered by the
selection committee along with other
government servants and recommendations
of the selection committee shall be kept in
sealed cover. In the Government Order
dated 28.5.1997, it has further been
provided that on exoneration of the
government servant in the disciplinary
proceedings, sealed cover of the concerned
government servant shall be opened and if
the selection committee has recommended
for his promotion on the higher post, then
he will be granted promotion with effect
from the date of promotion of his
immediate junior. Petitioner in his writ
petition has categorically stated that the
procedure of putting recommendations in
the sealed cover was not adopted in his
case and his case was not at all considered
44 INDIAN LAW REPORTS ALLAHABAD SERIES
by the selection committee for the reason
that disciplinary proceedings were pending
against him though as per the provisions of
the aforesaid Government Order, the
selection committee was under obligation
to consider the case of the petitioner for
promotion on the post of Head Assistant
and to adopt sealed cover procedure. It has
been further stated in the writ petition that
case of the petitioner was not considered by
the selection committee and various Head
Assistants, who are juniors to the petitioner,
were
promoted
to
the
posts
of
Administrative Officer vide promotion
order dated 24.11.2021 issued by the
Additional Director of Education (Basic),
U.P., Prayagraj.

10. Since case of the petitioner for
promotion on the post of Administrative
Officer was not considered by the selection
committee and his juniors were given
promotion, he filed Writ-A No.14480 of
2022, which was finally disposed of by this
court vide order dated 20.9.2022, whereby
direction was given to Additional Director
of Education (Basic), U.P., Prayagraj to
consider
and
decide
the
petitioner's
representation dated 16.6.2022 and to pass
appropriate order strictly in accordance
with
law.
11. Pursuant to the aforesaid order dated
20.9.2022 passed by this court in Writ- A
No.14480 of 2022, the Additional Director
of Education (Basic), U.P., Prayagraj has
passed an order on 13.4.2023, whereby
representation of the petitioner for his
promotion on the post of Administrative
Officer with effect from the date of
promotion of his immediate junior has been
rejected on the ground that on the date of
promotion
of
juniors,
disciplinary
proceedings were pending against him and
further District Basic Education Officer,
Firozabad vide his letter dated 11.11.2022
has informed that petitioner is full of
spontaneity and does not care to follow the
rules and regulations.

12.

Learned
Senior
Advocate
appearing for the petitioner has submitted
that even if disciplinary proceedings were
pending against the petitioner, in view of
provisions of the Government Order dated
28.5.1997, it was obligatory on the
selection committee to consider his case for
promotion on the post of Administrative
Officer along with other Head Assistants
but in absolutely illegal manner the
selection committee did not consider his
case for promotion. It has further been
submitted that the Government Order dated
28.5.1997, in unequivocal terms, provides
that if on the date of meeting of selection
committee, disciplinary proceedings are
pending against any government servant
and he is in the list of eligible candidates,
his case will be considered by the selection
committee and recommendations regarding
the said government servant shall be kept in
sealed cover and after conclusion of the
disciplinary proceedings, the said sealed
cover shall be opened and if the selection
committee has recommended for his
promotion, then the said government
servant shall be given promotion from the
date of promotion of his immediate junior,
whereas in the case of petitioner the said
procedure has not been adopted and
therefore, the entire exercise carried out by
the respondents is in violation of the
provisions of the Government Order dated
28.5.1997.

13.

Learned
Senior
Advocate
appearing for the petitioner has vehemently
argued that it is well settled proposition of
law that if a government servant could not
be given promotion due to pending
disciplinary proceedings and later on he is
1 All. Vikram Singh Tomar Vs. State of U.P. & Ors.
45
exonerated
from
the
charges
and
disciplinary proceedings are dropped, he
will be given promotion with effect from
the date his immediate junior was promoted
on the higher post, whereas in the present
case it is admitted case of the respondents
that juniors to the petitioner have been
promoted and he was not given promotion
only for the reason that disciplinary
proceedings were pending against him but
now once he has been exonerated from the
charges
and
disciplinary
proceedings
pending against him have been concluded,
he is entitled for his promotion on the post
of Administrative Officer with effect from
the date of promotion of his immediate
junior.

14.

Learned
Senior
Advocate
appearing
for
the
petitioner
has
empathetically argued that the order dated
13.4.2023
has
been
passed
by
the
Additional Director of Education (Basic),
U.P., Prayagraj in gross violation of the
provisions of the Government Order dated
28.5.1997 and therefore, the said order is
unsustainable in the eyes of law.

15.

Learned
Senior
Advocate
appearing for the petitioner has contended
that representation of the petitioner for his
promotion on the post of Administrative
Officer with effect from the date of
promotion of his immediate junior has been
rejected by the Additional Director of
Education (Basic), U.P., Prayagraj on two
grounds, firstly, that on the date of
promotion
of
juniors,
disciplinary
proceedings were pending against him and
secondly, the District Basic Education
Officer, Firozabad has submitted some
adverse report vide letter dated 11.11.2022
regarding working of the petitioner. The
first ground taken by the Additional
Director
of
Education
(Basic),
U.P.
Prayagraj in the impugned order dated
13.4.2023 cannot sustain in view of the
provisions of the Government Order dated
28.5.1997 and the second ground is also not
sustainable as District Basic Education
Officer, Firozabad has given his opinion
vide letter dated 11.11.2022 whereas
promotions were made on 24.11.2021.
Learned Senior Advocate appearing for the
petitioner has argued that the observations
made by the District Basic Education
Officer, Firozabad in his letter dated
11.11.2022 are totally uncalled for and the
District Basic Education Officer, Firozabad
does not have any jurisdiction to make such
comments as he is not the appointing
authority of the post of the petitioner.
Learned Senior Advocate has also argued
that even otherwise observations made by
the District Basic Education Officer,
Firozabad in his letter dated 11.11.2022 are
irrelevant for the purpose of promotion of
the petitioner on the post of Administrative
Officer as his juniors were promoted on the
posts
of
Administrative
Officer
on
24.11.2021 i.e. much prior to the letter
dated 11.11.2022.

16.

Learned
Senior
Advocate
appearing for the petitioner has concluded
his arguments and has submitted that the
order dated 13.4.2023 passed by the
Additional Director of Education (Basic),
U.P. Prayagraj is unsustainable in the eyes
of law and is liable to be quashed by this
court with a further direction to the
respondents to promote the petitioner on
the post of Administrative Officer with
effect from the date his immediate junior
was given promotion.

17. Per contra, learned Standing
Counsel appearing the respondents has
argued that petitioner is not entitled for
promotion on the post of Administrative
46 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer with effect from 24.11.2021 i.e. the
date his juniors were promoted on the post
of Administrative Officer as on the said
date disciplinary proceedings were pending
against him. Learned Standing Counsel
appearing for the respondents has further
argued that District Basic Education
Officer, Firozabad vide his letter dated
11.11.2022 has submitted a report wherein
it has been mentioned that petitioner is full
of spontaneity and he does not care to
follow the rules and regulations and
therefore, petitioner cannot be granted
promotion on the post of Administrative
Officer with effect from 24.11.2021.

18.

Learned
Standing
Counsel
appearing
for
the
respondents
has
concluded his arguments by submitting that
there is neither any illegality nor infirmity
in the order dated 13.4.2023 which is
impugned in the present writ petition and
therefore, this writ petition is liable to be
dismissed by this court.

19. I have considered the submissions
advanced by the learned counsels appearing
for the parties and have perused the record.

20. I find that petitioner while
working on the post of Head Assistant in
the office of District Inspector of Schools,
Agra was put to disciplinary proceedings
vide order dated 12.2.2021 and the said
disciplinary proceedings were concluded
vide order dated 10.6.2022 passed by the
Additional Director of Education (Basic),
U.P.,
Prayagraj,
whereby
disciplinary
proceedings against the petitioner were
dropped for the reason that charges levelled
against him were not found proved. I
further find that during pendency of the
aforesaid
disciplinary
proceedings,
selection committee considered the cases of
promotion of Head Assistants to the posts
of Administrative Officer but case of the
petitioner was not considered and on the
basis of recommendations made by the
selection committee, his juniors were
promoted on the posts of Administrative
Officer vide order dated 24.11.2021.

21. The Government of U.P. in
compliance
of
the
judgment
dated
27.8.1991
rendered
by
the
Hon'ble
Supreme Court in Union of India and
others vs. K.V. Jankiraman and others,
reported in AIR 1991 SC 2010 has issued a
Government
Order
dated
28.5.1997,
wherein it has been provided that selection
committee shall consider the cases of
promotion of all the government servants
who are eligible for promotion under the
relevant service rules and their names find
place in the list of eligible candidates. It has
further
been
provided
in
the
said
Government Order that if disciplinary
proceedings are pending against any
government
servant,
then
the
recommendations
of
the
selection
committee
made
in
respect
of
his
promotion shall be kept in sealed cover and
the said sealed cover shall be opened after
conclusion of the disciplinary proceedings
and if the concerned government servant is
exonerated from the charges, he will be
given notional promotion with effect from
the date of promotion to his immediate
junior. The relevant provisions of the
Government Order dated 28.5.1997 are
extracted as under:-

"उत्तर प्रदेश शासन
कविणक अनुभाग-1
संख्या-13/21/89-का-1-1997
िखनऊ, वदनांक 28 िई, 1997
कार्ाालर्-ज्ञाप

विषयः- राज्यार्ीन सरकारी सेिा िें सेिारत
कविणक की प्र न्नवतय ं के विये ह ने िािे चुनाि ं
1 All. Vikram Singh Tomar Vs. State of U.P. & Ors.
47
िें बन्द विफाफे की कायणिाही आवद की प्रवक्रया
का वनर्ाणरण।

उपर क्त विषय पर शासन की
ितणिान
नीवत
कायाणिय-ज्ञाप
संख्या-
15/85/1983-कविणक-1 वदनांक 30 निम्बर,
1983 िें वनवहत है। "भारत संघ इत्यावद बनाि
जानकी रिन इत्यावद, (ए०आई०आर० 1991
एस०सी०2010)"नािक िाद िें िा० उच्चति
न्यायािय के वनणणय वदनांक 27 अगस्त, 1991
तथा स्थायीकरण के सम्बि िें ितणिान िें िागू
नीवत आवद के प्रकाश िें सम्यक् रूप से
विचार परान्त उपर क्त कायणिय-ज्ञाप वदनांक 30
निम्बर, 1983 क वनरस्त करते हुए शासन द्वारा
उक्त विषय पर अब वनम्नविक्तखत प्रवक्रया
वनर्ाणररत की गयी हैः-

(1) पात्रता सूची के प्रत्येक कार्माक
के सम्बन्ध में चर्न सर्मर्त द्वारा र्िचार र्कर्ा
जार्ः प्र न्नवत हेतु गवित चयन सविवत द्वारा उन
सभी काविणक की प्र न्नवत के सम्बि िें विचार
वकया जायेगा, ज संगत सेिा वनयि ं ि पािता
विषयक वनयि ं के तहत वनयिानुसार पािता
सूची िें आते है। भिे ही उनिें से वकसी काविणक
के विरूद्ध वकसी प्रकार की जांच (प्रकीणण-जांच,
विभागीय प्रारक्तिक जांच, सतकणता जांच,
विभागीय औपचाररक-जांच, प्रशासनावर्करण
की जांच) या अवभय जन की कायणिाही
विचारार्ीन अथिा िक्तम्बत ह अथिा िह
वनिक्तम्बत चि रहा ह , और चयन सविवत द्वारा
ऐसे सिस्त िक्तम्बत/विचारार्ीन िािि ं क
छ डते हुए अन्य सिस्त सेिावभिेख ं के आर्ार
पर प्र न्नवत हेतु काविणक की उपयुक्तता पर
विचार वकया जायेगा।

..............

(4) मुहरबन्द र्लफाफे से सम्बन्धन्धत
मामले हेतु स्थान सुरर्ित रखना - यवद वकसी
काविणक के विषय िें चयन सविवत की संस्तुवत
क िुहरबन्द विफाफे िें रखा गया ह त उसके
विए एक पद सुरवक्षत रखा जायेगा तावक उसके
वनदोष पाये जाने पर विफाफे िें रखी संस्तुवत के
अनुसार अथिा यथा-क्तस्थवत अग्रविक्तखत नीवत के
अनुसार िुहरबन्द विफाफे िें रखी संस्तुवत पर
पुनविणचार के आर्ार पर चयन सविवत द्वारा की
गयी पुनसणस्तुवत के अनुसार ( यवद प्र न्नवत वकये
जाने की संस्तुवत या पुनसणस्तुवत की गई ह ) उक्त
सुरवक्षत पद के विरूद्ध उसे प्र न्नत वकया जा
सके।

............

(7) मुहरबन्द र्लफाफे के र्नस्तारण
की प्रर्िर्ा- जब सम्बक्तित काविणक वनिक्तम्बत
न ह और उसके विरूद्ध चि रही अनुशासविक
विभागीय
कायणिाही,
प्रशासनावर्करण
या
यथाक्तस्थवत अवभय जन की सिस्त कायणिावहय ं
के अक्तन्ति पररणाि सािने आ जायें अथाणत
उसके विरूद्ध क ई ऐसा िाििा न ह ज ऊपर
खण्ड (2) के उपखण्ड (क) (ख) (ग) की श्रेणी िें
आता है त वनम्नविक्तखत प्रवक्रया अपनाते हुए
िुहरबन्द विफाफे का वनस्तारण वकया जायेगा

(क) पूणातः र्नदोष पार्े जाने की
दशा में- आर वपत काविणक, वजसके विषय िें
चयन सविवत की संस्तुवत िुहरबन्द विफाफे िें
रखी गयी है, क यवद पूणण रूप से द ष िुक्त
पाया जाता है क वनयुक्तक्त प्रावर्कारी (या
यथाक्तस्थवत चयन कराने िािे विभाग के सवचि या
प्रिुख सवचि वजनकी अवभरक्षा िें चयन सविवत
का कायणिृत रखा जाता है) द्वारा विफाफे क
ख िा जायेगा और तद परान्त इसिें रखी
संस्तुवत के वक्रयान्वयन की कायणिाही की
जायेगी। ऐसे िाििे िें यवद विफाफे िें रखी
संस्तुवत के अनुसार उसे प्र न्नवत हेतु संस्तुत वकया
गया ह त उसे संदवभणत चयन के आर्ार पर
प्र न्नत वकये गये उसके कवनष्ठ की प्र न्नवत की
वतवथ से न शनि प्र न्नत िाना जायेगा और
तदनुसार आदेश वनगणत वकये जायेंगे।

(ख) यवद न्यायािय द्वारा अवभय जन
के िाििे िें वकसी आर वपत काविणक क
गुणािगुण के आर्ार पर द षिुक्त वकया गया ह
और सक्षि प्रावर्कारी द्वारा उस वनणणय के
विरूद्ध न त अपीि की जाती है और न
48 INDIAN LAW REPORTS ALLAHABAD SERIES
विभागीय कायणिाही प्रस्तावित है त ऊपर
उपखण्ड (क) के अनुसार उसी प्रकार कायणिाही
की जायेगी ज न्यायािय द्वारा गुणािगुण के
आर्ार पर द ष िुक्त करार वदये जाने की दशा
िें की जाती ।

(ग) अंशतः र्ा पूणातः दोषी पार्े
जाने की दशा में- यवद आर वपत काविणक के
विरूद्ध िािि की सिाक्तप्त पर यह पाया जाता
है वक उसके विरूद्ध िगाये गये आर प आंवशक
या पूणणरूप से वसद्ध हुये है त उसी स्तर की
चयन सविवत की बैिक आहूत की जायेगी वजस
स्तर क चयन सविवत द्वारा संदभणगत चयन
सम्पन्न वकया गया था। यह चयन सविवत उसके
विरूद्ध चि रहे िािि ं िें प्राप्त अक्तन्ति
पररणाि ं सवहत सिस्त अवभिेख ं के प्रकाश िें
िुहरबन्द विफाफे िें रखी संस्तुवत पर पुनविणचार
करेगी। यवद वकसी काविणक के सम्बि िें एक से
अवर्क विफाफे उपिब्ध ह ं त उपिब्ध
विफाफ ं क तब तक क्रििार एक-एक करके
ख िते हुए उन पर उपर क्तानुसार चयन सविवत
द्वारा पुनविणचार वकया जायेगा जब तक वक
यथाक्तस्थवत उसे चयन सविवत द्वारा वकसी चयन
के संदभण िें प्र न्नवत के विये संस्तुत न वकया जाय
अथिा सिस्त उपिब्ध विफाफे ख ि कर उन
पर पुनविणचार न कर विया जाये। यवद पुनविणचार
के पररणािस्वरूप उसे वकसी पूिण चयन के
संदभण िें प्र न्नवत के विए संस्तुत वकया जाता है त
उसे चयन के आर्ार पर उसके कवनष्ठ की
प्र न्नवत की वतवथ से प्र न्नत सिझा जायेगा वजस
वतवथ की चयन सविवत की संस्तुवत पर
पुनविणचार परान्त उसकी प्र न्नवत का वनणणय विया
गया है ि इस विषय िें स्पष्ट आदेश जारी वकये
जायेंगे।"

22. The aforesaid Government Order
dated 28.5.1997 makes it mandatory for the
selection committee to consider the cases
of all the government servants for their
promotion, whose names find place in the
list of eligible candidates and if against any
government
servant
disciplinary
proceedings
are
pending,
then
the
recommendations
of
the
selection
committee in respect of his promotion shall
be kept in sealed cover. The aforesaid
Government Order dated 28.5.1997 further
provides
that
on
conclusion
of
the
disciplinary proceedings if the concerned
government servant is exonerated from the
charges,
he
will
be
given
notional
promotion on the higher post with effect
from the date his immediate junior has been
given promotion. In the present matter,
there is no dispute that promotions on the
posts of Administrative Officer are to be
made from amongst Head Assistants on the
criteria of seniority subject to rejection of
unfit, as contemplated under the Rules of
1985. It is also not disputed that petitioner
as per provisions of the Rules of 1985 was
eligible for promotion on the post of
Administrative Officer. Once there is no
dispute in respect of petitioner being
eligible for promotion on the post of
Administrative
Officer,
his
case
for
promotion ought to have been considered
by the selection committee along with the
cases of his juniors, whereas selection
committee did not consider his case for
promotion on the post of Administrative
Officer and made recommendations in
respect of promotions of his juniors and
thereby juniors to the petitioner were
promoted on the posts of Administrative
Officer vide order dated 24.11.2021. The
case of petitioner was not considered by the
selection committee only for the sole
reason that on the date of meeting of
selection
committee
disciplinary
proceedings were pending against him,
whereas the Government Order dated
28.5.1997
mandates
that
even
if
disciplinary
proceedings
are
pending
against a government servant, his case for
promotion
shall
be
considered
and
1 All. Vikram Singh Tomar Vs. State of U.P. & Ors.
49
recommendations
of
the
selection
committee shall be kept in the sealed cover.

23. This court finds that selection
committee while not considering case of
the petitioner for his promotion on the post
of Administrative Officer and making
recommendations for promotion of his
juniors, has acted in gross violation of the
provisions made in the Government Order
dated 28.5.1997. The Government Order
dated 28.5.1997 categorically provides that
if a government servant was otherwise
eligible for promotion but he could not be
promoted on the ground of pending
disciplinary proceedings and subsequently
on conclusion of disciplinary proceedings
he is exonerated from the charges, he will
be given notional promotion with effect
from the date of promotion of his
immediate
junior,
therefore,
once
disciplinary proceedings pending against
the petitioner have been concluded and he
has been exonerated from all the charges,
there is no reason for the respondents not to
grant him promotion on the post of
Administrative Officer with effect from the
date of promotion of his immediate junior.
This court further finds that finding
recorded by the Additional Director of
Education (Basic), U.P., Prayagraj in the
impugned order dated 13.4.2023 that since
on the date of promotion of juniors
disciplinary proceedings were pending
against the petitioner, therefore even if he
has been subsequently exonerated from the
charges, he is not entitled for promotion
with effect from the date of promotion of
his juniors, is contrary to the provisions of
the Government Order dated 28.5.1997, as
such, the impugned order dated 13.4.2023
cannot sustain in the eyes of law.

24. So far as the second ground of
rejection of representation mentioned in the
impugned order dated 13.4.2023 that the
District Basic Education Officer, Firozabad
vide his letter dated 11.11.2022 has
submitted a report in which it has been
stated that petitioner is full of spontaneity
and does not care to follow the rules and
regulations, is concerned, this court finds
that the aforesaid observations have been
made subsequent to the date of promotion
of the juniors i.e. subsequent to 24.11.2021,
as such they are not relevant for the
purposes of the claim of the petitioner for
his promotion on the post of Administrative
Officer with effect from the date of
promotion of his immediate junior and
further District Basic Education Officer,
Firozabad under the relevant service rules
is not the appointing authority of the post
of the petitioner, therefore the observations
made by him in his report dated 11.11.2022
cannot be taken as final unless they are
accepted and approved by the appointing
authority by passing some final order.

25. In view of the aforesaid reasons,
this court finds that the order dated
13.4.2023
passed
by
the
Additional
Director
of
Education
(Basic),
U.P.,
Prayagraj is liable to be quashed.

26. Accordingly, this writ petition is
allowed, order dated 13.4.2023 passed by
the Additional Director of Education
(Basic),
U.P.,
Prayagraj
is
quashed.
Respondent No.3 is directed to consider the
case of petitioner for grant of notional
promotion on the post of Administrative
Officer with effect from the date of
promotion of his juniors i.e. with effect
from 24.11.2021 and to pass order as per
the provisions of the Government Order
dated 28.5.1997 within one month from the
date of service of certified copy of this
order.
----------
50 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 1 ILRA 50
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 13538 of 2018

Dharmendra Mishra ...Petitioner
Versus
U.P. State Public Services Tribunal & Ors.
 ...Respondents

Counsel for the Petitioner:
Rajendra Prasad Shukla, Rakesh Kumar
Agarwal, Saksham Agarwal

Counsel for the Respondents:
C.S.C.

A. Service Law - Disciplinary Proceedings
- U.P. Police Officers Subordinate Rank
(Punishment & Appeal) Rules, 1991 -
Time Limit for Inquiry - Petitioner, a
constable,
dismissed
from
service
for
unauthorized absence - Earlier dismissal order
quashed by Tribunal for violating natural justice,
with directions to conduct fresh inquiry within
six months, excluding time consumed by
petitioner - Fresh inquiry delayed due to
petitioner's requests for additional time to
respond to charge-sheet and show-cause notice
-
Tribunal
dismissed
petitioner's
claim
challenging second dismissal order - Held, delay
in concluding inquiry beyond the Tribunal's
stipulated period does not ipso facto nullify
proceedings - Tribunal's direction to exclude
petitioner's consumed time and petitioner's noncooperation justified the delay - Disciplinary
authority's explanation for delay satisfactory -
Dismissal order upheld. (Paras 11, 13, 15, 16)

B. Service Law - Disciplinary Proceedings
- Judicial Discretion to Extend Time -
Tribunal fixed six-month period for concluding
inquiry but retained inherent jurisdiction to
extend time - Held, courts and tribunals have
power to extend time limits for disciplinary
proceedings, even after expiry, if delay is
satisfactorily explained - No statutory mandate
renders proceedings void upon expiry of
stipulated time - Tribunal's dismissal of claim
petition justified as delay was attributable to
petitioner. (Paras 12, 14)

Writ Petition Dismissed.

List of Cases cited:

1. Abhishek Prabhakar Awasthi Vs The New
India Assurance Company Ltd. & ors., 2013 SCC
OnLine All 14267

2. U.O.I. & ors. Vs Sharvan Kumar, 2022
LiveLaw (SC) 595

3. Mahanth Ram Das Vs Ganga Das, (1961) 3
SCR 763

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) The instant writ petition under
Article 226 of the Constitution of India has
been filed by the petitioner, Dharmendra
Mishra, assailing the judgment/order dated
20.03.2018 passed by the State Public
Services Tribunal, Lucknow (hereinafter
referred to as "the Tribunal"), whereby the
claim petition No. 137 of 2016 filed by the
petitioner against the order of punishment/
dismissal dated 12.05.2015 and appellate
order
dated
30.11.2015,
has
been
dismissed.

(2) The brief facts of the case are that
in the year 2005, the petitioner was posted
as Constable in 32nd Battalion, P.A.C.,
Lucknow. On 15.05.2015, he had gone to
his home after getting the Earned Leave of
fifteen days sanctioned i.e. till 01.06.2005,
however, he came back on his duty on
04.06.2005
instead
of
01.06.2005.
Thereafter, on 25.06.2005 again, he had
gone to his home after getting the Earned
Leave of twenty days sanctioned i.e. till