SHANTI SWAROOP GUPTA Vs. STATE OF H.P.

JUDGEMENT

(1.) Provisional seniority list of Junior Engineers (Civil), as it stood on 31.12.2008, was published on 20.11.2009. Petitioner was at Sr. No. 275. The seniority list was finalized on 29.12.2009. The Departmental Promotion Committee was convened for promotion to the post of Assistant Engineer on 2.9.2012. Petitioner was eligible as per the memorandum prepared for the consideration of Departmental Promotion Committee to the post of Assistant Engineer (Civil) in Irrigation and Public Health Department. Case of the petitioner was also considered alongwith other eligible departmental Junior Engineers (Civil). However, fact of the matter is that Departmental Promotion Committee has taken into consideration previous Annual Confidential Reports for the years 1999-2000, 2000-2001, 2001-2002 and 2002-2003 due to non-availability of the Annual Confidential Reports for the years 2007-2008, 2008-2009, 2009-2010, 2010-2011 and 2011-2012. Petitioner was assessed as 'Good" as per the final assessment of the Departmental Promotion Committee. The fact of the matter is that since the petitioner has been assessed as 'Good", persons junior to him have been promoted to the post of Assistant Engineer (Civil).

(2.) Precise case of the petitioner is that Annual Confidential Reports for the relevant period preceding convening of Departmental Promotion Committee were available with the Department and despite this; the same were not furnished to the Departmental Promotion Committee. According to Annexures P-7, P-8, P-9, P-10 and P-11, the Annual Confidential Proceedings have already been supplied by the concerned authority to the Department. Reasons assigned by the respondents for not considering the case of the petitioner for promotion is that Annual Confidential Reports were not available for the relevant period. This is factually incorrect. Rather, it has come in the reply that the borrowing department had submitted Annual Confidential Reports of the petitioner to respondent No.2 for the years 2006-2007and 2007-2008. The averment contained in the reply that the other Annual Confidential Reports for the period 2008-2009, 2009-2010 and 2010-2011 were under correspondence is also factually incorrect. The department had received the Annual Confidential Reports as per Annexures P-7 to P-12 and thus, it cannot be said that the Annual Confidential Reports of the petitioner remained under correspondence. It is the duty cast upon the employer that the Annual Confidential Reports are received from the borrowing department well in advance. Petitioner cannot be penalized for inaction on the part of respondent- Department for not furnishing upto date Annual Confidential Reports before the Departmental Promotion Committee which met on 28.9.2013. Petitioner has been assessed as "Good" in the previous Annual Confidential Reports, which have been recorded on the basis of FIR No. 437/1999. Petitioner has already been acquitted in that criminal case on 30.9.2011. Since the upto date Annual Confidential Reports of the petitioner have not been furnished to the Departmental Promotion Committee, persons junior to the petitioner as per seniority list notified on 20.11.2009 have been promoted resulting in grave miscarriage of justice.

(3.) Their Lordships of the Hon'ble Supre me Court in Syed Khalid Rizvi and others vs. Union of India and others, 1993 Supp3 SCC 575 have held that preparation of annual select-list under IPS (Appointment by Promotion) Regulations, 1955 was mandatory and failure to do so would not result in collapse of rule 3 (3) (b) of Seniority Rules. Their Lordships have further held that it would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service. The dereliction of the statutory duty must satisfactorily be accounted for by the State Government concerned and the Court has taken serious note of wanton infraction. Their Lordships have held as under: