DEVENDRA KUMAR NAILWA Vs. STATE OF U P

JUDGEMENT

(1.) By this writ petition under Article 226 of the Constitution of India, the Petitioner, who is a Member of U.P. Nyayik Sewa and is presently posted as Additional Chief Judicial Magistrate, Lakhimpur kheri, seeks issuance of a writ in the nature of certiorari for quashing of the orders contained in Annexure-8 and Annexure-10 to the writ petition, rejecting the representation preferred by the petitioner against the adverse remarks for the year 2000-2001 and also for a writ or direction in the nature of mandamus directing the respondents to promote the petitioner in Higher Judicial Service cadre [hereinafter referred to as the "H.J.S." cadre for the sake of brevity] with effect from 15.5.2001, the date on which persons junior to the petitioner were given promotion. Shorn of details, brief facts necessary for disposal of this writ petition are, that the petitioner was appointed as a Member of U.P. Nyayik Sewa on 5.8.1985 and was posted as Munsif, Nainital. On 5.8.1990, he was granted senior pay scale. Thereafter, the petitioner was promoted to the post of Civil Judge/Addl. Chief Judicial Magistrate on 22.10.1994 and was posted at Ghaziabad. In the year 2000, the petitioner was posted as Additional Chief Judicial Magistrate, Nagina, District Bijnore. The District Judge while recording entry for the year 1999-2000 recorded adverse remarks against the petitioner. The petitioner gave a representation dated 14.7.2000 against the adverse remarks recorded for the year 1999-2000, which was allowed by the then Hon'ble Administrative Judge, District Bijnore and the adverse remarks given by the District Judge were expunged. By the letter dated 23.3.2002, the Joint Registrar of the High Court communicated to the petitioner that adverse remarks made against him for the year 1999-2000 have been expunged.

(2.) For the year 2000-2001, the District Judge, Bijnore again recorded the adverse remarks against the petitioner. Against the said adverse remarks for the year 2000-2001, the petitioner made a representation on 17.7.2001. The representation of the petitioner was placed before the then Hon'ble Administrative Judge, District Bijnore, passed certain orders, which we would refer later on. The grievance of the petitioner is that although the adverse-remarks awarded by the District Judge for the year 1999-2000 have been expunged on the representation dated 14.7.2000 made by the petitioner as would be evident from the communication dated 23.3.2002[ Annexure-1] and as far as the adverse remarks for the year 2000-2001 awarded by the District Judge is concerned, in view of the order passed by the Administrative Judge as contained in the letter dated 22.1.2002 have lost its significance but even then the petitioner, who is fully eligible, is not being promoted to the H.J.S. cadre.

(3.) Learned Counsel for the petitioner has argued with great vehemence that though the adverse remarks awarded to the petitioner for the year 1999-2000 and 2001- 2001 awarded by the District Judge are no more in existence even then petitioner is being denied promotion to the Higher Judicial Service cadre resulting illegal supercession of the petitioner twice. According to petitioner, his name was recommended by H.J.S. Selection committee in the year 2000 but on account of communication of adverse remarks for the year 2000-2001, he was not promoted. Thereafter again in October, 2001 several candidates were promoted but this time also the case of the petitioner was ignored without considering the fact that the adverse remarks awarded for the year 1999-2000 had already stand expunged and in view of the order of Administrative Judge the adverse-remarks for the year 2000-2001, have no significance.