1. Heard Sri Shailendra, learned counsel for the petitioner and Sri Manish Goyal, learned counsel for the respondents-High Court. The petitioner has come up for a limited relief relating to his promotion to the post of a Section Officer from the post of a Review Officer w.e.f. 8th of September, 2010, which i.e. the date from which his junior has been promoted. He therefore complains violation of Articles 14 and 16 of the Constitution of India.
2. The petitioner has been admittedly promoted as a Section Officer w.e.f. 14.9.2011, which fact is undisputed. Thus, the claim is only with regard to the period prior to that w.e.f. 8.9.2010.
3. Sri Shailendra learned counsel for the petitioner has urged that the petitioner has been obviated from consideration for the relevant year for the factual reasons as detailed in the writ petition, but erroneously on account of an incorrect application of the rule applicable in the matter. He has invited the attention of the Court to Rule 40 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976. The same is extracted hereinunder:
40. Regulation of other matters--
"(1) All officers and servants of the Court shall be subject to the superintendence and control of the Chief Justice.
(2) In respect of all matters (not provided for in these rules) regarding the conditions of service of officers and servants of the Court including matters relating to their conduct, control and discipline, the rules and orders for the time being in force and applicable to Government servants holding corresponding posts in the Government of Uttar Pradesh shall apply to the officers and servants of the Court subject to such modifications, variations and exceptions, if any, as the Chief Justice may, from time to time, specify:
Provided that no order containing modifications, variations or exceptions in rules or orders relating to salaries, allowances, leave or pensions shall be made by the Chief Justice except with the approval of the Governor:
Provided further that the said powers exercisable under rules and orders of Government of Uttar Pradesh by the Governor shall be exercised by the Chief Justice or by such officer as he may, by general or special order, direct.
(3) If any doubt arises in regard to a particular post in the establishment being corresponding to a post in the State Government, the matter will be decided by the Chief Justice."
He has then invited the attention of the Court to the Government Order dated 30th June, 1993, which has been filed as Annexure RA-1 to the rejoinder-affidavit in particular to clause 2(2)(Sa).
4. On the strength of the aforesaid Government Order and the Rule quoted hereinabove, Sri Shailendra submits that according to the same, the period of five years, which has to be counted for looking into the records to declare a candidate either as fit or unfit and to be assessed within the zone of consideration as prescribed, the same will run from the date of the incident for which any adverse entry has been awarded. In the instant case, according to him, the incident is of the year 2004 and, therefore, the censure entry, which was awarded to the petitioner by way of punishment on 29th Jury, 2005 would relate back to the said incident and if the period of five years is counted from 2004, the petitioner would not be ineligible and cannot be thrown out of the zone of consideration as on the date of promotions that were made on 8th September, 2010. He therefore contends that the High Court has committed an error by rejecting the petitioner''s representations, and the reports which have been relied upon are equally erroneous. He has therefore prayed for quashing of the same and giving effect to the promotion from the date his junior was promoted i.e. w.e.f. 20.9.2010.
5. Countering the said submission Sri Manish Goyal has invited the attention of the Court to Rule 40(2) read with Rule 45. Rule 45 is extracted hereinunder:
"45. General rates--Notwithstanding anything contained in these rules, the Chief Justice shall have the power to make such orders, as he may consider fit, in respect of recruitment, promotion, confirmation or any other matter."
6. He submits that in regulation of such matters if the Chief Justice of the High Court has brought about any modification and the variation or exception to any Government Order or Rule, then in view of Rule 45 read with Rule 40(2) the order of the Chief Justice shall prevail. In the instant case, guidelines were formulated for the purposes of screening candidates for selection by way of promotion, which was approved by Hon''ble the Chief Justice vide order dated 12th September, 2009. It is the said guidelines as approved by Hon''ble the Chief Justice that have been followed and made the basis for such consideration of promotion in the resolution that was passed on 8th September, 2010.
7. Said guidelines are extracted hereinunder: (counter-affidavit Page-18)
"(ii) That Committee has also decided to observe the following guidelines in that selection.
"1. If annual character roll remark of any year of last fire years has not been received the remarks of the preceding year shall be taken into consideration and marks be awarded accordingly.
2. Those candidates who have been awarded punishment in the preceding five years (i.e. the period wider consideration) will be kept outside the zone of consideration.
3. To adopt sealed cover procedure in respect of those candidates against whom departmental/criminal proceedings are pending."
8. He submits that on a simple calculation as per Clause 2 of the said guidelines the petitioner was admittedly awarded punishment by way of censure on 29th July, 2005 and as such after completion of five years when the promotions were being considered, this entry awarded to the petitioner fell within the said preceding five years as contemplated under Clause 2 extracted hereinabove and highlighted.
9. He therefore submits that no error has been committed either in calculation or in keeping the petitioner out of the zone of consideration.
10. We have considered the rival sub-missions and we find that on a pure and simple calculation, the period of preceding five years would be 2005-2006, 2006-2007, 2007-2008, 2008-2009 and 2009-2010.
11. The said period has been noted by the Committee, that has considered the representations as also the claim of the petitioner in the resolution dated 8th September, 2010, which is a matter of record and has been appended alongwith counter-affidavit.
12. There is no challenge raised to the cause of censure awarded by way of punishment on 29.7.2015. There is also no challenge raised to the approval of the guidelines vide order of Hon''ble the Chief Justice dated 12.9.2009. The guidelines even otherwise do not suffer from any arbitrariness so as to attract Article 14 of the Constitution of India. The Government order dated 30.6.1993 would therefore be not attracted. There is also nothing to indicate that the said Government order was adopted by the High Court as on the date from which promotion is being claimed in 2010.
13. We therefore find that according to Rule 40(2) read with Rule 45 the criteria and guidelines so adopted under approval of Hon''ble the Chief Justice dated 12th September, 2009 would apply with full force and, therefore, applying the said guidelines no error has been committed by the High Court in eliminating the candidature of the petitioner as claimed by him for the relevant year with retrospective effect in the present writ petition. He therefore was rightly considered thereafter and given the benefit of promotion. Consequently, no case is made out for interference. Writ petition lacks merits and is accordingly dismissed.
