RAVINDRA PAL SINGH NEGI Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) DEPARTMENTAL Promotion Committee sat on 25th June 2007 for the purpose of consideration of promotion of Ordinary Grade doctors working in the Government to Selection Grade doctors available in the Government. While doing so, the Departmental Promotion Committee was called upon to consider the case of the petitioner. The Departmental Promotion Committee, in the minutes of the said sitting, recorded that the case of the petitioner is being deferred, inasmuch as, his A.C.Rs. for the period 1996 -1997 to 2001 -2002 are not available. This non -consideration is under challenge in the instant writ petition. On 23rd June, 2003, the Government issued a Government Order, and, thereby, provided, amongst others, that, at the time of consideration of promotion, if confidential reports are not available for any year the same should be treated as blank, and, thereupon, decision should be taken to ascertain, whether the candidate concerned is or is not suitable for being promoted. This Government Order was binding on the Departmental Promotion Committee. They acted in breach of the said Government Order, while deferring consideration of the case of promotion of the petitioner, and, thereby, interfered with a legal right of the petitioner, which is enforceable by a writ petition of mandamus under Article 226 of the Constitution of India. As usual, there being no say in the matter the Government has chosen not to file a counter affidavit. The private respondents have filed an affidavit, and thereby, purported to contend that on 25th June, 2007, when the Departmental Promotion Committee sat, petitioner was not finally allocated to the State of Uttarakhand, and that, he was allocated to the State of Uttarakhand only on 19th December, 2011. An order of the Principal Secretary of the State has been annexed to the said writ petition. The purpose of annexing the said order was to show that on 19th December, 2011, for the first time, petitioner stood allocated to the State of Uttarakhand. A look at the order dated 19th December, 2011 will show that the same was a creation of the Principal Secretary of the State of Uttarakhand and the same was not an action of the Government of India. The order dated 19th December, 2011 does not also refer to an order of the Government of India. The fact remains that the Principal Secretary of the State of Uttarakhand had and has no authority to allocate anyone to the State of Uttarakhand. In the supplementary affidavit petitioner has annexed copy of an order of the Government of India dated 1st February, 2013. In that, it has been specifically stated that the petitioner was included in the hill sub -cadre and, accordingly, in terms of the order of the Government of India dated 11th September, 2001, petitioner stood allocated to the State of Uttarakhand. The fact that the petitioner was finally allocated to the State of Uttarakhand prior to 25th June, 2007 was known to the Departmental Promotion Committee, inasmuch as, while it considered the case of the petitioner, and, thereupon, deferred the same for the reason indicated above, in the minutes of the sitting of the Departmental Promotion Committee held on 25th June, 2007, the Departmental Promotion Committee has specifically stated that the case of Dr. Pushpa Tripathi could not be considered by them, inasmuch as, she has not yet been finally allocated to the State of Uttarakhand. Therefore, the plea taken by the private respondents based on the said order of the Principal Secretary dated 19 th December, 2011 is absolutely incorrect. The fact remains that, for no just reason, but, by acting contrary to the Government Order, the Departmental Promotion Committee did not consider the case of the promotion of the petitioner when it sat on 25th June, 2007.

(2.) WE , accordingly, allow the writ petition and direct the Government to hold a Departmental Promotion Committee exclusively for the petitioner within a month from today to consider the case of the petitioner for promotion as on 25th June, 2007 and apply the provisions of the Government Order dated 23rd June, 2003 in relation to A.C.Rs. of the petitioner, which are not available. In the event, it is found that the petitioner is suitable for being promoted, he must be given the notional effect of his promotion from the date others, who were found fit for being promoted pursuant to the Departmental Promotion Committee held on 25th June, 2007. Though the petitioner shall not be entitled to monetary benefit of the said promotion during the notional period, but the notional period must be counted for the purpose of determination of eligibility for the next promotion. In the event, anyone, who was promoted pursuant to the Departmental Promotion Committee held on 25th June, 2007, has been promoted to the next level, a further Departmental Promotion Committee within one month must be held exclusively for the petitioner in order to consider him for promotion to the said post.