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Union Of India & Others v. Sargent Vishnu Deo Tiwari - SPECIAL APPEAL No. 205 of 2000  RD-AH 12731 (1 August 2006)
Special Appeal No. 205 of 2000
Union of India and others .....Appellants
Sargent Vishnu Deo Tiwari .....Respondent
Hon'ble S. Rafat Alam, J.
Hon'ble Sudhir Agarwal, J.
This special appeal under the Rules of the Court is preferred against the judgment of the Hon'ble Single Judge dated 20.1.2000 whereby Civil Misc. Writ Petition No.16315 of 1998 of the petitioner-respondent was allowed.
It appears that the petitioner-respondent filed the aforesaid writ petition with the grievance that three persons junior to him have been promoted to the post of Junior Warrant Officer in Photo Fitters Trade without considering his claim for promotion despite the fact that he is fully eligible for such promotion with effect from 1.8.1994 when the persons junior to him have been promoted. The Hon'ble Single Judge having found that Sri Nityanand and Sri A.K.Singh, who were junior to the petitioner-respondent have been promoted and the fact not being denied by the respondents-appellants, allowed the writ petition and directed the respondents-appellants to promote the petitioner-respondent as Junior Warrant Officer with seniority. His Lordship further quashed the orders dated 5th March, 1998, 10th December, 1991 and 11th November, 1997.
From the career profile, contained in Annexure-1 to the affidavit filed in support of the appeal, it is evident that the petitioner-respondent was promoted as LAC (Leading Aircraft's Man) after having cleared the necessary examination in 1991 whereas Sri A.K.Singh and Sri Nityanand cleared that examination and were given promotion as LAC with effect from 1.2.1992,i.e, subsequent to the respondent and, therefore, the petitioner-respondent was also entitled to be considered for promotion along with his juniors, who have been promoted. Nothing has been brought on record to show that his claim for promotion was considered along with Sri A.K.Singh and Sri Nityanand but was not found suitable in terms of the Rules for promotion and hence superceded. The petitioner-respondent is entitled and has a right to be considered for promotion when his turn for such promotion came and juniors to him were considered and promoted. However, the orders dated 5.3.1998, 10th December, 1995 and 11th November, 1997 are norms for fixation of seniority and, therefore, the same having not been found by the Hon'ble Single Judge to be arbitrary or illegal, there was no occasion to quash the same. That apart, this Court while entertaining and disposing the writ petition under Article 226 of the Constitution can issue a writ to the respondents/authorities commanding it to perform its duty and to consider as to whether an employee aggrieved is entitled to be promoted or not, but will not issue a writ of mandamus commanding the respondents to appoint or promote without giving opportunity to them at the first instance to consider the claim of promotion. Therefore, the appropriate course is to direct the authorities at the first instance to consider the claim of employee's promotion afresh in accordance with law. In the instant case the Hon'ble Single Judge at the first instance straight away issued a writ of mandamus commanding the respondents-appellants to promote the petitioner-respondent, which is contrary to the law pronounced by the Hon'ble Apex Court.
Reference may be made to the judgment of the Hon'ble Apex Court in the case of Union Public Service Commission Vs. Hiranyalal Dev, AIR 1988 SC 1069, wherein while considering the similar direction issued by the Tribunal, the Hon'ble Apex Court deprecated the same and held that the appropriate course was to direct the Government to consider the officers afresh for promotion in accordance with Rules and to take necessary action accordingly. The reliance was placed by the Apex Court on its earlier judgments, namely, State of Mysore Vs. Syed Mahmood [AIR 1968 SC 1113] and Gurdial Singh Fijji Vs. State of Punjab [AIR 1979 SC 1622] and the following passage from the judgment in Syed Mahmood (Supra) was quoted with approval:
"The promotions were irregularly made and they were, therefore, entitled to ask the State Government to reconsider their case. In the circumstances, the High Court could issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniority and fitness they should have been promoted on the relevant dates when officers junior to them were promoted. Instead of issuing such a writ, the High Court wrongly issued writ directing the State Government to promote them with retrospective effect. The High Court ought not to have issued such writs without giving the State Government an opportunity in the first instance to consider their fitness for promotion in 1959."
We are, therefore, of the view that the order of the Hon'ble Single Judge to the extent of commanding the respondents-appellants for giving promotion to the petitioner-respondent and quashing of the guidelines for determining his seniority without holding the same as arbitrary or illegal, cannot sustain. However, remaining part of the direction deserves to be upheld. We, therefore, modify the judgment of the Hon'ble Single Judge to the extent that the appellants (respondents) shall consider the claim of the petitioner-respondent for promotion with effect from the date when his juniors were promoted and take necessary decision in this regard in accordance with law keeping his seniority as well as suitability, as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of this order. It is needless to state that in the event the petitioner-respondent's promotion is granted, the consequential benefits shall be provided accordingly within six weeks thereafter. However, in the event appellants come to the conclusion that the petitioner-respondent does not deserve to be promoted, it shall record reasons and communicate the same to him.
The special appeal is partly allowed with the aforesaid modification. The writ petition and the special appeal, accordingly, stand disposed of with the above order.
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