- (1.) BY means of this petition, moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of mandamus directing the respondents to include his name in the panel of Assistant Grade-11 (Depot ).
(2.) HEARD learned counsel for the parties and perused the affidavits filed. Brief facts of the case, as nar rated in the petition, are that the petitioner was appointed as Assistant Grade III (for brevity herein after referred as A. G. Ill) by promotion on 26-12-1979 in Food Corporation of India. At present he is posted at Haldwani. In the year 1994, after completion of his 12 years of unblemished service, the peti tioner was given selection grade, appli cable to A. G. III. According to the pe titioner, in the seniority list (Depot), he was at serial No. 848 in the North Zone. Ignoring the petitioner's claim for pro motion to the post of A. G. II, the re spondents have promoted juniors to him, as below as the person at seniority No. 2446 too has been promoted to the post of A. G. II. The services of the petitioner and his other colleagues are governed by Food Corporation of India Staff Regu lation Act, 1971. Rule 10 of said Regu lation, provides that the promotions would be made on the basis of senior ity cum fitness. The petitioner's case is that he was never awarded any adverse entry by his superior officers and his work is appreciated by the authorities concerned. Feeling aggrieved by being deprived of his promotion to the post of A. G. II, this writ petition has been filed, alleging that even after making represen tation, the petitioner's claim is being ignored by the respondents. Respondents contested the writ petition and filed their counter affidavit in which it has been stated that the pe titioner was initially appointed on the post of Messenger in the year 1971 and was later promoted to A. G. Ill (Depot) in the year 1979. It is admitted that on completion of ten years service, the pe titioner was given selection grade w. e. f. 01-12-1994. In fact his selection grade was due w. e. f. 01-12- 1992 but due to the vigilance matters and Misconduct on the part of the petitioner, his selection grade was deferred and was sanctioned only w. e. f. 01-12-1994. Denying that the petitioner's service record is unblemished one, it is stated in the counter affidavit that the petitioner was awarded penalty of stoppage of one annual increment. It is further stated in the counter affidavit that due to the negligence on the part of the petitioner in his duty, explanation was sought from him and warning was given to him. In para-9 of the counter affidavit, it has been stated that before granting promotion, all round perform ance of the candidates has to be ad judged for which annual performance appraisal report is also seen, which in cludes the annual confidential report, apart from performance, efficiency and behaviour. A Zonal Promotion Commit tee, assessed the service record of the petitioner and considered his case for promotion to the post of A. G. II but considering his conduct and service record, he was found unfit for the pro motion. It is alleged by the respondents that several times warnings were issued to the petitioners.
(3.) IN the rejoinder affidavit, the pe titioner has denied the allegations con tained in the counter affidavit and reit erated the contents of the writ petition. Alleging that the adverse entries recorded in the service record of the petitioner in the year 199/- 1998, were not communicated to him before the Zonal Promo tion Committee (herein after referred as Z. PC.) considered the case of the peti tioner for promotion. It is further stated in the rejoinder affidavit that the alleged acts of Misconduct of the petitioner were minor in nature and should not have been weighted to refuse him promotion. Learned counsel for the petitioner drew attention of this Court to Annexure-4 to the rejoinder affidavit, filed by the petitioner, which is copy of memorandum dated 20-05-2002 in which the respondents have communi cated the petitioner that his case was considered by Z. RC. in its meeting held on 16th, 17th and 18th of October, 2000 but considering his adverse annual confidential remarks for the years 1997 and 1998, he was found unfit and was not empanelled to the post of A. G. II (Depot ). Learned counsel for the peti tioner stated that the only ground men tioned in the aforesaid document is the adverse remarks recorded in the years 1997 and 1998 against the petitioner. In this connection, he further drew atten tion of this Court to Annexure-5 and Annexure-6 to the rejoinder affidavit, which are copies of the letter dated 29-07- 2001 and 23-08-2001, whereby en tries of the years 1997 and 1998 respec tively were communicated to the peti tioner. Shri J. C. Pande, learned counsel for the petitioner, argued that the com munication has been made after the date when the ZPC met and considered the petitioner's case for promotion, as such, the petitioner had no opportunity to make representation prior to consid eration of his case for promotion. Rely ing on the principles of law laid down in Gurdial Singh Fijji Vs. State of Pun jab (1979) 2 Supreme Court Cases Pg. 368, State of Haryana Vs. P. C. Wadhwa (1987) 2 Supreme Court Cases 602 and Brijmohan Singh Chopra Vs. State of Punjab (1987) 2 Supreme Court Cases 188, it is contended that the adverse en tries, which were not communicated to the petitioner cannot be taken into ac count while considering his case for pro motion. After going through the afore said case laws, this Court is in agree ment to the learned counsel for the pe titioner to the extent that an employee cannot be deprived of his promotion merely on the basis of the adverse entries if the same is not communicated to the concerned employee.;