Title: G.K.Reddy Versus DCIT
Citation: WP(C) NO.35727 OF 2019
Decided on: 19th Of October 2023
Introduction:
Petition is to issue a writ of certiorari, quashing document to the extent to which it denies promotion to the petitioner as Senior OCIOA and promotes the respondent as Senior OCIOA. To declare that petitioner is entitled to be promoted to the post of Senior OCIOA in the retirement vacancy of Sri.P.A. Sasidharan and that he is entitled to be promoted to the post of programmer ahead of the respondent. And to request a writ of mandamus directing other respondents to promote him to the post of programmer.
Facts:
The petitioner was appointed as Lower Division Clerk (for short ‘LDC’) and was promoted as Upper Division Clerk/Shed Clerk and thereafter as Operator cum Input/ Output Assistant (for short OCIOA). His appointment as OCIOA was on 30.12.1999 and he was included as Rank No.4 out of 13 candidates for promotion to the post of Senior OCIOA/Programmer. submitted that the respondent who had lesser marks than the petitioner was included as rank No.12 in the list.
By virtue of the Recruitment Rules as it stood in 2016, the post of Senior OCIOA is to be filled up by promotion from the post of OCIOA with two years regular service or from Accountant with three years regular service. The petitioner contends that the respondent who was his immediate senior in the seniority list of OCIOA was punished for unauthorised absence from 01.05.2015 to 18.05.2015.
It is contended that due to treating of the said period of 18 days as non- duty, the respondent became junior to the petitioner and it was the petitioner who ought to have been promoted as Senior OCIOA. The petitioner relying on several judgments contended that the right to be considered for promotion is a fundamental right.
in State of Punjab v. Dr.P.L. Singla [2008(3) KHC 968], it is contended that when the period of unauthorised absence is found after conducting due disciplinary proceedings and the period is specifically treated as unauthorised absence and ‘non-duty’ for all purposes except pension, then, the period cannot be taken into account for any purposes except pension.
Court’s decision and Analysis:
it is clear that the parties are in agreement that the provisions of the Fundamental Rules and the Central Civil Services (Pension) Rules and the principles contained therein apply to the service in question. there is a clear distinction between a person who holds a lein to a post and a person who is deemed to be on duty in the post. When a period of unauthorised absence is treated as ‘non- duty’ for all purposes except pension, the consequence would be that the period will not constitute a break in service for the purpose of pension and the officer will not lose his lein in the post. However, he cannot treat the period as duty for any other purpose including seniority.
The contention of the petitioner that the said period cannot be treated as duty for reckoning seniority is liable to be accepted in view of the fact that order has become final without any challenge being raised by the respondent. In the result, the order is set aside. There will be a direction to the respondents to consider the claim of the petitioner for promotion to the post of Senior OCIOA in preference to the respondent, treating the period of service of the respondent from 01.05.2015 to 18.05.2015 as non-duty for the purpose of reckoning seniority.
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Written by- Sushant Kumar Sharma
