Full Judgment
M. Katju, J.
1. This writ petition has been filed for quashing the impugned orders dated 26,12.2002 and 10.1.2003, Annexures-10 and 12 to the writ petition. The petitioner has prayed for a mandamus that he should be considered for promotion as Chief Engineer.
2. Heard learned counsels for the parties.
3. The petitioner is working as Superintending Engineer, Rural Engineering Service, U. P. The Service Rules in this connection are the U. P. Rural Engineers (Group A) Service Rules, 1991, copy of which is Annexure-1 to the writ petition. In these rules for appointment as Superintending Engineer, total number of 15 years of service are required which includes six years service as Executive Engineer.
4. The petitioner has alleged that throughout his career, he was senior to the respondent No. 3 Uma Shanker. The respondents do not seriously dispute this fact. For selection as Assistant Engineer, and then as Executive Engineer on both occasions, the petitioner was placed higher in the select list than the respondent No. 3. For selection as Superintending Engineer also, he was placed higher than the respondent No. 3 vide paragraph 4 (iii) of the writ petition. The petitioner and the respondent No. 3 both belong to the S.C. category.
5. As stated in paragraph 9 of the petition, the D.P.C. met for selection on the post of Superintending Engineer. Both petitioner and the respondent No. 3 were considered by the D.P.C. but since an enquiry was pending against the petitioner, the sealed cover procedure was adopted in his case, but the respondent No. 3 was given officiating and stop gap promotion as Superintending Engineer vide order dated 13.2.2001, Annexure-6 to the writ petition. Subsequently, as stated in paragraph 11 of the petition, the petitioner has been exonerated. A fresh D.P.C. for the post of Superintending Engineer was held on 31.8.2002 in which the petitioner, respondent No. 3 and others were considered and a merit list was prepared in which petitioner was at serial No. 1 and the respondent No. 3 at serial No. 2. In this connection, notification dated 9.9.2002 is annexed as Annexure-7 to the writ petition.
6. In paragraph 19 of the petition, it is alleged that the State Government has thereafter passed the impugned order dated 26.12.2002 vide Annexure-10 to the writ petition. By this order, the respondent No. 3 has been treated as promoted as Superintending Engineer from 14.3.2001. Consequently, the respondent No. 3 will become senior to the petitioner. It is alleged in paragraph 20 of the writ petition that no opportunity of hearing was given to the petitioner before passing the said order. Against that order, petitioner made representation vide Annexure-11 to the writ petition. By order dated 10.1.2003 the State Government has promoted the respondent No. 3 as Chief Engineer vide Annexure-12 to the writ petition. Aggrieved, this petition has been filed.
7. Counter-affidavit and rejoinder-affidavit have been filed and we have perused the same.
8. There is no dispute that throughout his service, the petitioner has been senior to respondent No. 3. At every stage of promotion, he was higher in the merit list than the respondent No. 3. Even in the notification dated 9.9.2002, Annexure-7 to the writ petition, the petitioner is higher in the merit list than the respondent No. 3. The only reason why the petitioner was not promoted as Superintending Engineer was because of the pendency of the enquiry against him. Since he has been exonerated in the enquiry and since he has been found suitable by the D.P.C. vide Annexure-7 to the writ petition, in our, opinion the petitioner has to be treated as senior to respondent No. 3.
9. We were orally informed by the learned standing counsel that the D.P.C which kept the petitioner's result regarding promotion as Superintending Engineer in sealed cover subsequently opened the sealed cover and found the petitioner unfit for promotion as Superintending Engineer. This is only an oral submission and no affidavit has been filed by the respondents in this connection and hence, we cannot take this oral submission into consideration. However, before reserving the judgment on 5.3.2003, we told learned standing counsel that we will not deliver judgment for a few days so that if he wishes to file an affidavit in support of his oral submission, he can do so. But, he has not filed any affidavit till today. Hence, we cannot take the above oral submission into consideration, which is not supported by any affidavit. Moreover we asked learned standing counsel that even assuming that the said D.P.C. had found the petitioner unfit we would like to know what was the material on which the D.P.C. found him unfit for promotion. Learned standing counsel could not inform us what was the material on which the D.P.C. found the petitioner unfit. No adverse entry or any other adverse material to the petitioner was brought to our notice. We can, therefore, presume that even assuming that the said D.P.C. found the petitioner unfit for the promotion, it was only on the basis that there was an enquiry pending against him in which he was subsequently exonerated. Hence even assuming that the earlier D.P.C. found the petitioner unfit for promotion the basis for formation of the said opinion has disappeared after the petitioner was exonerated in the enquiry.
10. Hence, we direct that the petitioner shall be treated as having been promoted as Superintending Engineer from the date when respondent No. 3 was promoted and shall be treated as senior to him. Since the respondent No. 3 is presently functioning as Chief Engineer on officiating basis, the petitioner shall also be promoted forthwith as Chief Engineer on officiating basis and as senior to respondent No. 3.
11. It is not necessary to quash the promotion of respondent No. 3 as Chief Engineer since we are informed there are more vacancies on the post of Chief Engineer on which the petitioner can be promoted. The petitioner shall be given these promotions with all consequential benefits including the arrears of salary, allowances etc. which must be paid to him within two months.
12. Petition is allowed. No orders as to cost.