IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Special Appeal No. 1 of 2007 Date of decision: 3rd January, 2008 A.F.R. (Approved for Reporting) Not approved for reporting Date : 03.01.2008 Initials of judge Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Special Appeal No. 1 of 2007 Naveen Chandra Joshi S/o Sri Hira Ballabh Joshi R/o Upasana Niwas Manpur Pachim, Rampur Road, Haldwani … Appellant Versus 1. District Manager, Food Corporation of India 7/46, Bhotia Parav, Haldwani 2. Senior Regional Manager Food Corporation of India 5/6, Habibullah Estate, Lucknow 3. Zonal Manager, North Zone Food Corporation of India Kasturbha Gandhi Marg, Ansal Bhawan, New Delhi 4. Assistant Manager (Depot) Food Corporation of India Bhotia Parav, Haldwani … Respondents Mr. J.C. Pande, Advocate for the appellant. Mr. M.C. Pande, Advocate for the respondents Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. This Special Appeal under Rule 5 Chapter VIII of the High Court Rules has been filed against the judgment and order dated 04.12.2006 passed by the learned Single Judge of this Court in Writ Petition No. 3079 of 2001 (S/S), Navin Chandra Joshi Vs. District Manager, Food Corporation of India and others, whereby the learned Single Judge has dismissed the writ petition. 2. A writ petition bearing No.3079/2001 (S/S) was filed before the learned Single Judge by the writ petitioner, (now appellant in the present special appeal), for the following reliefs:- “(i) Issue a writ, order or direction in the nature of mandamus directing the respondent to include the name of the petitioner in the panel of Assistant Grade-II (Depot). (ii) Issue any other writ order or direction which this Hon’ble Court may deem fit and proper. (iii) award cost of the petition to the petitioner.” 3. Brief facts of the case are that the writ petitioner was appointed as Assistant Grade III (Depot) by promotion on 26.12.1979 in Food Corporation of India. Since then, the writ petition has been working in different places and at present he is working at Haldwani. In the year 1994, after completion of his 12 years of commendable service as Assistant Grade-III, the writ petitioner was given selection grade. It was further alleged in the writ petition that the services of the writ petitioner and his colleagues are governed by Food Corporation of India Staff Regulation Act, 1971. The writ petitioner was never awarded any adverse entry by his superior and his work was appreciated by the authorities concerned. In the year 1998 the seniority list relating to Assistant Grade III (Depot) was circulated in which the writ petitioner was placed at zonal seniority No. 848 in the seniority list (Depot). On 20.10.2000, the Food Corporation of India Zonal Office, North New Delhi issued a promotion list of Assistant Grade III (Depot). As per the list, many officials Assistant Grade III (Depot) junior to the writ petitioner upto zonal seniority No.2445 were promoted ignoring the writ petitioner’s claim for promotion to the post of Assistant Grade II. It was further alleged in the writ petition that the writ petitioner was not given any adverse entry or any notice for his unsatisfactory service or duty. Aggrieved by the promotion list dated 20.10.2000, the writ petitioner filed representations before the authorities concerned but no heed was paid by them. Feeling aggrieved by this, the writ petitioner preferred a writ petition before the learned Single Jude and the learned Single Judge dismissed the writ petition. Hence, this Special Appeal. 4. The respondents have filed counter affidavit pleading therein that the writ petitioner was initially appointed on the post of Messenger in the year 1971 and later on promoted to Assistant Grade III (Depot) in the year 1979. After completion of 10 years of service, the writ petitioner was given selection grade w.e.f. 01.12.1994. The selection grade of the writ petitioner was due w.e.f. 01.12.1992 but it was deferred due to vigilance inquiry and misconducts on his part for his behaviour by Senior Regional Manager, Food Corporation of India, Lucknow by stopping one annual increment. It was also pleaded that due to negligence of he writ petitioner in duty, he was given warning and explanation was also sought from him. It was further pleaded that granting promotion, all rounds performance of the candidate has to be adjudged like candidate’s annual confidential report, his performance, efficiency & behaviouir. It was further pleaded that seniority is not the sole criteria for granting promotion. It was further pleaded that the Committee assessed the service record of the writ petitioner for promotion but considering his conduct and service record, the writ petitioner was found unfit for promotion. It was also ple3aded that the writ petitioner has filed the writ petition before the Court without any decision on his representation. 5. The writ petitioner also filed the rejoinder affidavit reiterating the same averment contained in the writ petition. 6. After hearing the parties, the learned Single Judge has dismissed the writ petition vide impugned judgment and order 04.12.2006. 7. Aggrieved by the impugned order, the present Special Appeal has been preferred by the appellant. 8. Heard learned counsel for the parties and perused the record. 9. Learned counsel for the appellant contended that the Zonal Promotion Committee (hereinafter referred as ZPC) erred in considering the un-communicated adverse remarks recorded for the year 1997-98; the learned Single Judge has wrongly justified the rejection of the appellant claimed for the promotion on the basis of the alleged warning given to him which had not been even referred by the said ZPC in its order; the learned Single Judge erred in holding that ZPC has to consider otherwise performance and conduct of the candidate while considering the promotion of the writ petitioner; the learned Single Judge also erred in holding to consider the otherwise performance, efficiency, behavioiur and warning given to the writ petitioner by his superiors. 10. Mr. M.C. Pande, the learned counsel for the respondents supported the judgment of the learned Single Judge. 11. It is apparent from the perusal of the record that a combined seniority list of the eligible candidates from Assistant Grade III (Depot) to Assistant Grade II (Deport) was prepared and submitted to the ZPC by the respondents. The ZPV in the said list considered the name of the appellant. The appellant’s name was kept at Serial No.26 of Z.S. No. 848. The following recommendations were made for the promotion of the appellant by the ZPC: SLNO ZONAL SEN NO. NAME & REGION OF EMPLOYEE DATE OF BIRTH SC/ ST/ H.CAP VIG CLEAR ASSESSMENT BY THE ZPC REMARKS 1997 1998 1999 848 NAVIN CHAND, UP 13/03/ 1948 Adverse Adverse G. Unfit Adverse but not communicat ed 12. Perusal of the record reveals that the meeting of the ZPC was held pursuant to the lists prepared by the respondents. The ZPC after considering the names of the eligible candidates prepared and drawn four lists. The persons who were found suitable for empanelment for the promotion as Grade II were kept on list A; the official whose matters have been deferred for want of service record were kept on list B; and the officials whose cases were considered and the decision were kept under sealed covered were kept on list C. The ZPC also prepared list D for the candidates who were found unfit; resigned; and expired. The name of the appellant was kept on list D as he was found unfit. 13. It is not in dispute that the appellant was awarded adverse entries for the year 1997-98. These adverse entries were not communicated to the appellant till the meeting of ZPC held on 16th, 17th and 18th October, 2000. It is further revealed from annexure 5 & 6 of the rejoinder affidavit which are copies of the letter dated 29.07.2001 and 23.08.2001 whereby the adverse entries for the year 1997-98 were respectively communicated to the appellant. We have also summoned the original record of the case from the respondents. Perusal of the record reveals that ZPC considered the adverse entries for the year 1997-98 against the appellant and endorsement has been made in the remarks column that the said entries have not been communicated to the appellant. 14. It is true that the appellant was considered and found unfit on the basis of the adverse remarks which were not communicated to him till the date of the ZPC meeting. It is apparent that these remarks have been communicated to the appellant in the year 2001 after the meeting of ZPC. It is settled position of law that adverse entries that have not been communicated to the official concerned cannot be taken into account while considering the case for promotion. The learned Single Judge also held that the said adverse entries for the year 1997-98 were not communicated and these adverse entries cannot be taken into account while considering the case of the appellant for promotion. 15. The learned Single Judge has held that perusal of the entire record reveals that apart from the adverse entries for the year 1997-98, there were other misconducts on the part of the appellant which could not have been ignored while considering his promotion. Now the question arises whether ZPC had considered the other misconducts as indicated by the respondents in their counter affidavit. As we have pointed out earlier that ZPC has only considered the entries for the years as quoted above and no other material was considered. The respondents have categorically stated in the counter affidavit that large number of employees whose confidential report for the minimum 3 years were found satisfactory, they were promoted. The appellant could not be promoted due to the adverse remarks in his confidential report for the year 1997-98. The appellant was considered for promotion but he could not be promoted due to his unsatisfactory annul confidential report for preceding three years. The learned counsel for the respondents could not demonstrate us that the ZPC had to consider overall performance and misconducts of the appellant which have been committed by the appellant during that period. Perusal of the record does not reveal that the relevant record of misconduct and warning had been placed before the ZPC. The learned counsel for the respondents could not demonstrate that other material of misconduct was placed before the ZPC. The respondents have stated that warnings were issued to the appellant but that was not placed before the ZPC meeting or that was not considered by the ZPC. Thus the learned Single Judge erred in holding that the other misconduct on the part of the appellant could not have been ignored while considering his promotion. 16. The learned counsel for the appellant further contended that there is no need to direct the respondents to reconsider the case of the appellant. The Court can issue mandamus directing the respondents to empanel the appellant on the list of 2000. The learned counsel for the respondents refuted the contention. The Hon’ble Apex Court in the case of D.C. Aggarwal (Dead) by Lrs. Vs. State Bank of India and another reported in (2006) 5 SCC 153 has held in para 32 as under:- “32. There is another issue that precludes any relief being granted to the appellant. As a matter of fact, the appellant retired from service on 9-9-1993 and died in 2005. The learned counsel for the appellant contended that even though the appellant had died, his legal heirs could be granted the monetary benefits on the footing that the appellant was entitled to get extension of service by two years and was also entitled to promotion to TEGS VII. In our view, both these contentions are unsustainable. Even if the appellant were to succeed in his appeal, the most favourable order for him could have been a direction to the respondent Bank to reconsider his case for promotion to TEGS VII as also to reconsider extension of his service beyond the age of fifty-eight years. Thus, even with such a direction, it would not have been possible for us to say that the respondent Bank was bound to grant either of the appellant’s claims. Thus, there is no question of monetary relief being granted to the legal heirs of the appellant. Further discussion on this aspect becomes unnecessary since we are not satisfied that the appellant was entitled to any relief.” 17. In view of the foregoing discussion, the appeal deserves to be allowed. The respondents are directed to re-reconsider the case of the appellant for promotion from Assistant Grade III (Depot) to Assistant Grand II (Depot). The appeal is allowed accordingly. The impugned judgment and order dated 04.12.2006 passed by the learned Single Judge in Writ Petition No. 3079 of 2001 (S/S), Navin Chandra Joshi Vs. District Manager, Food Corporation of India and others dismissing the writ petition is hereby set aside and the writ petition is allowed. 18. No order as to costs. (J.C.S. Rawat, J.) (Rajeev Gupta, C.J.) Dated 3rd January, 2008 Shiv