Heard Sri B.K. Singh, learned counsel for the petitioner and Sri Ran Vijay Singh, learned Addl. Chief Standing Counsel for the State-respondents.
By means of this petition, the petitioner has assailed validity of the orders dated 22.2.2019 and 18.6.2019 whereby the petitioner, who was serving on the post of Chief Food Safety Officer as a stop gap arrangement, has been directed to serve on the post of Food Safety Officer, the substantive post on which the petitioner has been working, cancelling the order of his promotion, which was made as stop gap arrangement.
Submission of learned counsel for the petitioner is that vide promotion order dated 18.6.2019, ten persons have been promoted on the post of Chief Food Safety Officer and except Sri Pramod Kumar Rai, whose name finds place at serial no.1, remaining nine persons are junior to the petitioner.
The petitioner has categorically submitted in the writ petition that considering his seniority position and his service record, he was promoted to officiate on the post of Chief Food Safety Officer. Learned counsel for the petitioner has also submitted that service record of the petitioner has been unblemished and no adverse material against the petitioner has been found nor he has been punished during his entire service inasmuch as nothing adverse has been informed to the petitioner till date. Considering the aforesaid argument of the learned counsel for the petitioner, this Court has passed the order dated 16.7.2019 as under:-
"Heard Sri B. K. Singh, learned counsel for the petitioner.
Notices on behalf of opposite parties have been accepted by the office of the learned Chief Standing Counsel.
This Court has passed the order dated 05.07.2019 as under:-
"Heard Sri B.K. Singh learned counsel for the petitioner and the learned State Counsel appearing on behalf of the opposite parties.
Learned counsel for the petitioner is not pressing the challenge to the order dated 18th June, 2019 annexed as Annexure No.2 to the writ petition.
Learned State Counsel is granted three days time to obtain instructions as to whether the entire service record of the petitioner up till the year 2019 was considered in the departmental promotion Committee held on 8th February, 2019 or whether the promotion of the petitioner has been rejected only on the ground that the service book was incomplete.
List this case on 11th July, 2019 as a fresh case in the Additional Cause List."
In compliance of the aforesaid order, Sri Vishal Verma, learned State counsel has produced a copy of letter dated 10.07.2019 preferred by the Commissioner, Food Safety and Drug Administration, U.P., Lucknow addressing to the Chief Standing Counsel, High Court, Lucknow, wherein it has categorically been indicated that at the time of consideration of candidature of the petitioner the entire service record of the petitioner was perused and the candidature of the petitioner was not found suitable. It has further been indicated in this letter that the petitioner was not declared non-suitable for the reason that his complete service record was not available. The photocopy of letter dated 10.07.2019 is being taken on record.
On the other hand, Sri B.K. Singh, learned counsel for the petitioner has submitted that to the best of his information so received from his client through reliable sources, the candidature of the petitioner was declared non-suitable for the reason that his service record was not complete.
This Court legitimately expects that if any instructions are received to the Court, those instructions would be authentic and appropriate but in any case since learned counsel for the petitioner is disputing about the aforesaid instructions so provided to the Court, therefore, counter affidavit would be required and the averments of the opposite parties are come on affidavit.
Let the counter affidavit be filed within a period of two weeks. Rejoinder affidavit, if any, may be filed within a period of one week thereafter.
List this petition on 14.08.2019 within top ten cases. On the said date, besides filing of the counter affidavit the relevant records shall be produced and on the next date the writ petition may be disposed of finally."
Learned Addl. Chief Standing Counsel has filed counter affidavit and in the entire counter affidavit, it has nowhere been indicated as to what was adverse against the petitioner pursuant to which his candidature for promotion on the post of Chief Food Safety Officer was not considered in the Departmental Promotion Committee (for short "DPC"), which was held on 8.2.2019.
Since this Court summoned the record, therefore, learned Addl. Chief Standing Counsel has produced the entire record before this Court today. The original record also does not demonstrate any adverse material against the petitioner. I have perused the minutes of the DPC and perusal thereof clearly reveals that initially the eligibility list of 30 persons was prepared and in the said list, name of the petitioner finds place at serial no.3. Thereafter, the said eligibility list was re-arranged excluding the name of those persons, who have already been promoted, the eligibility list of 21 persons have been prepared and in the said list, name of the petitioner finds place at serial no.3. As per the aforesaid minutes of the DPC, the Committee recommended promotion of ten persons, the list thereof has been enclosed as Annexure No.2 to the writ petition. In the said list, except Sri Pramod Kumar Rai, the remaining nine persons are junior to the petitioner. Paras-9, 10 & 11 clarify the factual position about those persons, who have not been considered for promotion indicating the reason clearly but nothing has been indicated against the petitioner as to why his candidature has not been considered for promotion on the post of Chief Food Safety Officer. In the last para of the minutes of the DPC, it has been indicated that candidature of the petitioner has not been found satisfactory, therefore, his promotion has not been recommended.
This Court is unable to comprehend as to why the specific recital regarding petitioner has not been given in the minutes when such recital has been given for couple of persons whose promotion has not been recommended. As a matter of fact, the counter affidavit is absolutely silent on the aforesaid point and the original record also does not indicate anything adverse against the petitioner. It means the candidature of the petitioner has not been recommended for promotion for unfounded reason and in a whimsical manner, the petitioner has been denied promotion on the post of Chief Food Safety Officer.
It is a trite law that promotion on the superior post may not be claimed as a matter of right but it depends upon the suitability of the incumbent, which is determined by scrutiny of the service record of the incumbent. It is also trite that to be considered on the promotional post is a fundamental right and if there is nothing adverse against an incumbent, then his/ her promotion may not be denied. In the present case, out of ten persons, who have been promoted on the post of Chief Food Safety Officer, nine persons are junior to the petitioner, therefore, this is a case of hostile discrimination for no cogent reasons to that effect. The aforesaid exercise of the opposite parties is not acceptable. If a junior person is promoted on the superior post, the person who is not only senior but is having unblemished service record would be bound to serve under his/ her junior, which is tantamount to harassment.
Accordingly, a writ in the nature of certiorari is issued quashing the order dated 22.2.2019 passed by the Commissioner, Food Safety and Drug Administration, U.P., Lucknow, which is contained in Annexure No.1 to the writ petition.
A writ in the nature of mandamus is issued commanding the opposite parties to convene a review DPC in the case of the petitioner and consider his promotion on the post of Chief Food Safety Officer w.e.f. the date when juniors to the petitioner have been promoted on the post of Chief Food Safety Officer and thereafter provide all consequential service benefits to the petitioner strictly in accordance with law. Compliance of the aforesaid order shall be made within a period of four weeks from the date of production of certified copy of the order of this Court.
In the result, the present writ petition succeeds and is accordingly allowed.
No order as to costs.
Order Date :- 27.8.2019 RBS/-
[Rajesh Singh Chauhan,J.]