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Smt. Ishwari U. Advani Vs. Employees' State Insurance Corporation and Ors. (05.10.1985 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberW.P. No. 872 of 1984
Reported in[1985(51)FLR569]; (1994)IIILLJ126Bom
ActsConstitution of India - Articles14, 16 and 226
AppellantSmt. Ishwari U. Advani
RespondentEmployees' State Insurance Corporation and Ors.
Appellant AdvocateParty in person
Respondent AdvocateR.M. Jaykar, Adv. for Respondents No. 1 to 3
DispositionPetition allowed
labour and industrial - promotion - articles 14, 16 and 226 of constitution of india - petitioner was government servant and her relations were not good with her immediate boss - in organisation of petitioner promotion were given to employees on basis of seniority and on their confidential reports for relevant three years which were prepared by their immediate bosses - adverse remarks in confidential report of petitioner for certain period - petitioner found unfit for promotion on basis of said report - otherwise petitioner was fit for promotion as per relevant confidential reports of previous three years - court was of opinion that adverse remarks given in reports were due to inimical relations between petitioner and her boss - petitioner entitled to promotion. - - 1. this writ.....h.h. kantharia, j.1. this writ petition under article 226 of the constitution of india discloses a sad story of an unfortunate female employee working in the office of the employees' state insurance corporation, bombay (hereinafter referred to as the corporation') as to how she suffered harassment at the hands of bureaucrats in her office who went to the extent of ruining her career.2. the petitioner was employed as a lower division clerk, in or about the year 1961, in the office of the corporation. thereafter she appeared for a competitive test in the year 1964 successfully and was appointed as upper division clerk in the pay scale of rs. 330-560 in or about the year 1965. somewhere in march 1978 she was promoted as an upper division clerk in-charge in the grade of rs. 425-600 and was.....

H.H. Kantharia, J.

1. This writ petition under Article 226 of the Constitution of India discloses a sad story of an unfortunate female employee working in the office of the Employees' State Insurance Corporation, Bombay (hereinafter referred to as the Corporation') as to how she suffered harassment at the hands of bureaucrats in her office who went to the extent of ruining her career.

2. The Petitioner was employed as a Lower Division Clerk, in or about the year 1961, in the office of the Corporation. Thereafter she appeared for a competitive test in the year 1964 successfully and was appointed as Upper Division Clerk in the pay scale of Rs. 330-560 in or about the year 1965. Somewhere in March 1978 she was promoted as an Upper Division Clerk In-charge in the grade of Rs. 425-600 and was then promoted as Officiating Head Clerk in the grade of Rs. 425-700 from April 1, 1978. But to her dismay she received a memorandum on or about February 4, 1980 dated February 2, 1980 from the Regional Director of the Corporation (Respondent No. 2) informing her about certain adverse remarks recorded in her confidential report for the year 1979. The Petitioner felt aggrieved by such adverse remarks and made representation dated Feb. 29, 1980, that the adverse remarks were based on false and biased reports submitted by the Local Manager by name R.P. Singh who was on inimical terms with her and under whom she was working. She also represented that the adverse remarks were mischievously managed by the said R.P. Singh with a view to spoil her career as at that particular time she was due for promotion as a Head Clerk . She requested Respondent No. 2 to conduct an independent inquiry with a view to find out the truth as to the adverse remarks. The petitioner did not receive any reply to her representation for more than three months. Therefore, she sent a reminder on June 9, 1980 and requested Respondent No. 2 to expunge the adverse remarks. But her request for expunging the adverse remarks was not looked into nor was any inquiry held as requested by her. However, on December 8, 1980 she received a memorandum that there was no scope for any interference in the matter of adverse remarks made against her and that she should take the remarks in the right spirit and make efforts to overcome the shortcomings and improve her prospects. And there was some more ill-luck stored in her life. Thus she was suddenly reverted to the post of Upper Division Clerk by a memorandum dated December 5, 1980, on telephonic instructions, which was to be effective from December 1, 1980. As if this was not enough, a shocking revelation came from the office of Respondent No. 2 in the nature of office order No. 114(A) of 1981 dated February 28, 1981 according to which 84 persons were promoted as Head Clerks and Asstt. Managers Grade III but her name was nowhere in that list although many of her juniors were promoted. Thereafter, another office order No. 38(A) of 1982 dated January 16, 1982 was published in which the Petitioner was shown promoted as Officiating Head Clerk; but although she was put at Serial No. 1 surprisingly her promotion was to be effective from January 15, 1982 whereas 23 others who were shown below her at Serial Nos. 2 to 24 were given promotion of Officiating Head Clerks and Officiating Grade III Managers with effect from January 1, 1982. The Petitioner, therefore, filed a Writ Petition No. 2649 of 1982 in this Court challenging both these lists of promotion.

3. The said Writ Petition came up for admission before my learned brother Pendse, J. on December 23, 1982 when he passed the following order:

'Called for Admission.

Shri K.G. Malkani for petitioner.

Shri M.V. Jaykar for Respondents.

P.C. Mr. Jaykar states that Respondents 1 & 2 would amend the office Order No. 38(A) 1982 dated 16.1.1982 and would give Jan. 1, 1982 as date on regular promotion to the petitioner, with incidental benefits.

In view of the statement Mr. Malkani applies for withdrawal of petition.

Allowed to be withdrawn'.

When the Petitioner came to know about the withdrawal of her petition without her instructions to Advocate Malkani she was again flabbergasted as to what was all happening and wny her petition was withdrawn without her consent. Therefore, she filed the present Writ Petition once again praying for the same relief which she had asked for in Writ Petition No. 2649 of 1982. This petition was summarily rejected by my learned brother Pendse, J. on March 26, 1984. The Petitioner carried the matter in appeal by filing appeal No. 358 of 1984. My learned brothers Desai and Aggarwal, JJ. by their oral judgment dated Oct. 31, 1984, allowed this appeal and issued rule in terms of prayer clauses (a) to (d). That is how this matter came up for hearing before this Bench, I sitting as a Single Judge.

4. The petition has been very vehemently opposed and resisted by and on behalf of the Corporation (Respondent No. 1). The Regional Director of the Corporation (Respondent No. 2) and the Departmental Promotion Committee of the Corporation (Respondent No. 3). Mr. Jaykar, learned Counsel appearing on their behalf, first of all, urged that this petition is not maintainable in view of the fact that earlier Writ petition No. 2649 of 1982 was withdrawn unconditionally by the Advocate of the petitioner on December 23, 1982. It is no doubt true that Writ Petition No. 2649 of 1982 was withdrawn as submitted by Mr. Jaykar but it is important to note that, as solemnly affirmed by the Petitioner, the said Writ Petition was withdrawn by Advocate Malkani without obtaining instructions from her and without her consent. Thus according to the Petitioner she had never engaged Advocate Malkani. Her Advocate was one Harekrishna and her petition was withdrawn by Advocate Malkani without obtaining her consent in that regard. However, as pointed out by Mr. Jaykar, paragraph 18 of this petition shows that she had engaged Advocate Malkani. When this was brought to her notice she submitted that the present Writ Petition was filed by Advocate A.B. Bhatia and she had narrated the true facts to him but Advocate Bhatia told her that if she were to make allegations against brother lawyer Mafkani he would not do her work. Therefore, wrong averments appeared in paragraph 18 of this Petition, according to her. I do not desire to enter into any controversy as to the 'conduct' of Advocate Harekrishna, Malkani and Bhatia and leave the matter at that but the fact remains that Writ Petition No. 2649 of 1982 stood withdrawn without the Petitioner's consent as can be seen from a letter written by Advocate Malkani to Advocate Harekrishna on January 29, 1983, which the Petitioner has shown to me. In this letter Advocate Malkani had informed Advocate Harekrishna that there was no reason for the Petitioner to be displeased with Advocate Harekrishna because according to him the order which was passed on December 23, 1982, was in her favour. This goes to show that Advocate Malkani was in no way concerned with the petitioner and that her Advocate was Harekrishna. Mr. Jaykar also does not dispute that on the day of the withdrawal of the petition the Petitioner was not present in the Court. However, I personally feel that by withdrawing Writ Petition No. 2649 of 1982, the Petitioner would not be benefited at all and, therefore, there was no reason for her to consent for its withdrawal. At any rate, I find no substance in the contention of Mr, Jaykar that because of the withdrawal of the earlier Petition, this Petition would not be maintainable. When the Petitioner filed the present petition it was summarily rejected by my learned brother Pendse, J. on March 26, 1984, which order was challenged by the petitioner in appeal No. 358 of 1984 and the appellate Court not only admitted the said appeal but also allowed the same. It would mean that the appellate Court expressly held that despite the fact that Writ Petition No. 2649 of 1982 was withdrawn, the present petition lies and it had to be disposed of on merits. Mr. Jaykar then urged that the first impugned order was passed on February 28, 1981 and the Petitioner had filed Writ Petition No. 2649 of 1982 after a long period and the delay should not be condoned because the Petitioner has not even explained the delay. First of all, law of limitation does not apply to writ petitions under Article 226. But that is not to say that petitions under Article 226 can be filed any time even after inordinate delay. It all depends upon the facts and circumstances of each case whether the delayed petitions under Article 226 should or should not be entertained. In the present case, because of its peculiar facts, I am inclined to entertain the petition as in cases like this, substantial justice has to be done to the party and such petitions should not be thrown away on technical pleas. It may be noted here that I asked the Petitioner as to why she delayed the filing of the earlier petition when she replied that she was writing letters after letters to the authorities of the Corporation to do justice to her and that is how there was delay. I feel, what the Petitioner submits appears to be true. In any case, I shall not deny justice to a poor female employee, a clerk in the Government office, on such technical objections raised by the Corporation. It is regretted that public body like the Corporation has raised such technical pleas in a service matter concerning one of their clerks.

5. Mr. Jaykar thereafter submitted that the Petitioner was not promoted as a Head Clerk because of the adverse remarks passed against her by her immediate superior R.P. Singh and no fault can be found with the decision taken by Respondent No .3 in not selecting her for the promotion to the post of a Head Clerk. At this stage we may narrate the adverse remarks made in the Confidential Reports of the Petitioner. They are as under:-



No. B/Estt.II.4(1983)C Date:2.2.1980 MEMORANDUM

Sub.: Confidential Report - Adverse Remarks

Smt. I.U. Advani, Offg.H.C. is informed that the following adverse remarks have been recorded in her confidential report for the year 1979.

1. Amenability to discipline : She is not very disciplinarian.

2. Punctuality in attendance : She lacks in punctuality and for that reason failed to check punctuality of staff working under her.

3. Relations with fellow : Not very cordial: Disrespectful to superior.

Though the report is otherwise fairly satisfactory, the above remarks are communicated to Smt. Advani with the hope and object that she will show improvement in future.

Smt. Advani is further informed that if she wishes to submit any representation against the above adverse remarks, the time-limit prescribed for the purpose is 1 month from the date of receipt of this Memo.



For Regional Director

To: Smt. I.U. Advani,

Offg. Head Clerk, Local Office,


Let it be said here that the abovementioned adverse remarks are not worth the name to be called adverse remarks. Thus according to R.P. Singh, the Petitioner was not very disciplinarian. In other words, she was disciplinarian but not very disciplinarian. Then he said that her relations with her colleagues were not very cordial. In other words, she had cordial relations with others but they were not very cordial. He also stated that the petitioner lacked punctuality about which I Shall discuss little later and point out that there is no substance in this particular adverse remark. And what is noteworthy is that according to Singh himself the report about the Petitioner was otherwise fairly satisfactory. If that was so, I fail to understand, how does it go against the Petitioner for not being promoted as a Head Clerk. It is also important to note that the so-called adverse remarks were communicated to the Petitioner only with the hope and object that she would show improvement in future and not to inform her that they were meant to deny her a promotion. Therefore, to deny promotion to the Petitioner on such adverse remarks would be unjust and unfair to her. In other words, denial of promotion to the Petitioner only on such adverse remarks, which were never meant to deny her a promotion, would amount to an arbitrary and capricious act on the part of Respondent Nos. 1 to 3.

6. Besides, I am of the opinion that the relationship between the petitioner and her immediate superior R.P. Singh was, for some reason or the other, not happy. In this regard it may be pointed out that her representation dated Feb. 29, 1980 shows that her grievance was that R.P. Singh had started harassing her since March 1979 and she had represented in that connection vide her letter dated April 7, 1979 and had requested that either she or he should be transferred. And, as a matter of fact, on April 30, 1979 the said R.P. Singh was transferred but he somehow managed to get his transfer cancelled. The Petitioner had also stated in her complaint that R.P. Singh was bent upon harassing her because she was refusing to sit late in the office. Mr. Jaykar handed over to me a bunch of papers to buttress his argument that there was no scope for interference in the adverse remarks as communicated to the petitioner by office memorandum dated December 8, 1980. I went through that bunch of papers and I was more than convinced that the relations between the Petitioner and R.P. Singh were strained. I do not want to attribute any motives to any one of them and especially to R.P. Singh but I strongly feel, after going through these papers, that R.P. singh had some axe to grind against the Petitioner. Therefore, I am not surprised that he had made such adverse remarks against her or at least he had reasons to do so. The papers shown to me by Mr. Jaykar also disclose that R.P. Singh had considered non-germane, irrelevant and extraneous matters for passing adverse remarks against the petitioner which he cannot do in law. According to the Petitioner, in her 24 years of service no adverse remarks were passed and communicated to her. Assistant Regional Director, P.Y. Krishnan, who filed returns on behalf of Respondent Nos. 1 to 3 stated that there was no whole truth in what the Petitioner has stated inasmuch as in the year 1979 there was a report about the behaviour and work of the Petitioner. What a vague averment! But it only means that in the year 1979 there was something adversely written in the confidentials of the petitioner and except that her career of 24 years of service was unblemished. Assuming, for the sake of argument that in the year 1979 R.P. Singh had some reasons to write adverse remarks against the Petitioner, as stated above, those solitary adverse remarks cannot wipe out the entire good record of the Petitioner. Then it is pertinent to note that the Petitioner had worked under R.P. Singh for less than a year. The confidential report which R.P. Singh had written for the year 1979 was for the period from Jan. 1, 1979 to Nov. 30, 1979. What a shocking surprise that for 24 years none of the superiors of the Petitioner could find anything wrong with her and it was only during these 11 months of the year 1979 that R.P. Singh found everything wrong with her! I am, therefore, of the strong view that all was not well with R.P. Singh vis-a-vis the Petitioner and that was perhaps the reason why he had mala fide written bad remarks against the Petitioner. R.P. Singh could have done well to remember the guidelines for writing confidentials of subordinates that there is no such thing as a perfect human being. The approach of the Reporting Officer towards his subordinates, therefore, should always be sympathetic and helpful. He should infuse in them self-confidence, a spirit or dedication to duty, a sense of responsibility and devotion to discipline. He should try to understand them and extract best from them. Wherever they falter, the Reporting Officer should advise and correct them.

7. Let us further consider how worthless the so-called adverse remarks are. P.Y. Krishnan, on behalf of Respondent Nos. 1 to 3, in his affidavit dated June 13, 1985 stated about the punctuality of the Petitioner as under-

'With reference to para 4, 1 specifically deny that the Petitioner was punctual in so far as her attendance was concerned and say that the Petitioner used to come very late for her work. She was late on the following occasions as per particulars given below:

2.11.197811.30 A.M.17.8.1979 10.45 A.M.24.9.1979 11.30 A.M.15.10.1979 10.50 A.M.2.11.1979 10.45 A.M.29.11.1979 10.50 A.M.18.12.1979 10.50 A.M.

I say that the reporting time of the Petitioner was 10.30 A.M. on every working day and I deny that the Petitioner on all occasions was late in reporting due to the train services being disorganised'.

It may be recalled that the Petitioner had worked under R.P. Singh only for 11 months and her confidentials written by R.P. Singh cover the period from Jan. 1, 1979 to Nov.30, 1979. But it is surprising to note that the above quoted paragraph indicates that the period prior to Jan. 1, 1979 and after Nov. 30, 1979 is also covered in the affidavit to prejudice the mind of the Court that the Petitioner was very much unpunctual in her attendance. Thus R.P. Singh had nothing to do with the attendance of the Petitioner either on Nov. 2, 1978 or on Dec. 18, 1979 and, therefore, there was no necessity to mention as to how irregular the Petitioner was on these two dates. But that apart, the affidavit only discloses that when the Petitioner was working under R.P. Singh, she had gone to office late five times covering a period of three months and more. Instead of attending the office at 10.30 A.M. she had on these five occasions attended the office between 10.45 A.M. and 11.30 A.M. I am told that the practice in the office of the petitioner is that if a member of the staff reports late by one hour twice in a month, the same is condoned but if he/she so repeats on the third occasion half-day casual leave is deducted. In our case, the Petitioner had attended the office late by one hour only once on Sept. 24, 1979 and it is nobody's case that for late attendance from August 1979 to Nov. 1979 any disciplinary action was taken against her. All this goes to show how much mala fide the Corporation's officers were working against the Petitioner and all that appears to be at the instance of R.P. Singh so as to totally ruin her career. At any rate, I, for one, am not at all willing to accept that the Petitioner, who stayed at Thane, if went to office late for five times in a period covering from August 17 to Nov. 29 in a year should be denied a promotion of a Head Clerk. It is sought to be made out on behalf of Respondent Nos. 1 to 3 that the petitioner who worked as a Head Clerk was expected to watch the attendance of others and if she herself went to office late, how can one expect her to instill discipline in others who worked under her. The argument is attractive but the hollowness in it is very much apparent inasmuch as if a person staying at Thane and who is required to commute every day by erratic local trains of Central Railway goes to office late five times covering a period of three months and more one cannot say that she was not punctual in her office attendance. Only those who have travelled by local trains of Central Railway can understand how 'regular' these trains are. From this conduct on the part of Respondent Nos. 1 to 3 I am more than satisfied that the adverse remarks against the Petitioner were manoeuvred. In these facts and circumstances, I attach no importance to the so-called adverse remarks passed against the Petitioner and, at any rate, that certainly cannot be a good ground to deny her a promotion of a Head Clerk.

8. It may be incidentally mentioned here that the reversion of the Petitioner from the post of officiating Head Clerk to the post of Upper Division Clerk was also full of legal mala fides. As stated earlier, this was done in ugly haste on telephone without following the proper procedure as reversion amounted to major penalty. Mr. Jaykar submitted that since the Petitioner was working only as an officiating Head Clerk, the usual procedure to be followed for reversion was not warranted. I am not able to persuade myself to agree with Mr. Jaykar for the simple reason that the Petitioner was working as officiating Head Clerk before reversion for two years and nine months and she could not have been reverted without following the proper procedure in that behalf. But even if there is any substance in what Mr. Jaykar has submitted courtesy and fairness demand that the Petitioner should have been told as to why she was reverted. She should have been at least informed in writing that the exigency on which she was officiating as Head Clerk had come to an end and that thereafter there was no need for her to officiate as a Head Clerk. What was the necessity to revert her in such a great haste on telephonic instructions and that too to the position of an 'Upper Division Clerk' and not an 'Upper Division Clerk incharge'?

9. Be that as it may, despite the fact that adverse remarks were made against the Petitioner, she was entitled to promotion for the post of a Head Clerk even otherwise. In this respect the Petitioner quoted in the petition Regulation No. 28 by which promotions are governed. It reads as under:-

'Regulation 28

1-A: The Promotions to the post of Assistants/Head Clerks Scale and Hindi Assistant shall be made in the following manner, namely,

(a) 50% of the vacancies shall be filled by promotion on the basis of selection on merits with due regard to seniority, and

(b) The remaining 50% vacancies shall be filled by promotion on the basis of seniority subject to the rejection of unfit'.

This is not denied by Respondent Nos. 1 to 3. Mr. Jaykar showed me the memorandum bearing No. 7(1)-5/66-Estt. I dated July 15, 1976 on the subject of promotion to higher posts. Item III of the said procedure reads as under:


(i) Promotion to selection posts i.e. posts to be filled on the basis of selection on merits with due regard to seniority.

From amongst the officers included in the field of choice those officers who are considered unfit for promotion should be excluded. The remaining officers should be classified as 'outstanding', 'very good' and 'good' on the basis of merit as determined by their respective records of service. The Select List should then be prepared by placing the names in the order of these three categories without disturbing the seniority infer se within each category. Promotion should normally be made from the Select List in the order in which the names are finally, arranged

The 'Select List' ......... ....... .........

The Size of ........ ......... ....... ........

The 'Select List ....... ........ ............'

(ii) Procedure for promotion to non-selection posts i.,e. posts to be filled on the basis of seniority subject to rejection of unfit. The Departmental Promotion Committee need not make a comparative assessment of the records of officers as for selection posts. They should categorise the officers as 'fit' or 'not yet fit' for promotion on an assessment of their record. The officers declared as 'fit' should be placed in the panel in the order of their seniority. Promotion should normally be made from the panel in the order on which the names are finally arranged'.

And with a view to understand this procedure I inquired of Mr. Jaykar as to now a person would be selected for promotion under the first heading of Regulation No. 28 and the second heading of RegulationNo. 28. Mr Jaykar replied that 50% of the posts should be filled up on merits and 50% on seniority basis. He further clarified that for the purpose of finding out merits what is considered is that there should be in the last three years confidentials (i) ail 'excellent'; or (ii) two 'excellent' and one 'very good'; or (iii) two 'excellent' and two 'very good'; or (iv) all the three 'very good'. In other words, if in the last three confidentials it is found that a person has got either all the three 'excellent' or two excellent' and one 'very good' or one 'excellent' and two 'very good' or all the three 'very good' he/she should be promoted under the first part of Regulation No. 28 as a matter of right being a person of merits. Nothing further requires to be done. The second category of the persons would be governed by the second part of Regulation No. 28 according to which, as explained by Mr. Jaykar, the confidential reports of the last three years should show that the person was fit for promotion. In other words, according to Mr. Jaykar, if it was found in the last three confidential reports that the person was fit for promotion he/she shall be promoted on the ground of seniority and nothing more was required to be done but if in any one year he/she was not found fit for promotion, he/she cannot be promoted even if senior. And Mr. Jaykar showed me the confidentials of the last three years of the Petitioner. Her confidentials show that the report for the year 1977 was more than 'very good' although not 'excellent'. Her congenital for the year 1978 were again quite good although neither 'excellent' nor 'very good' except for a couple of items. And the confidentials of the Petitioner for the years 1977 and 1978 clearly show that she was fit for promotion. The only difficulty that arose in her way was for the year 1979 when the confidentials were written by R.P. Singh for the period January 1, 1979 to Nov. 30, 1979 and a perusal of the same shows that the case of the Petitioner was not good. I do not want to repeat the said confidentials because they are narrated in the foregoing paragraph No. 5. However, the most important point to be noted here is that even in the year 1979 the Petitioner was found fit for promotion. Thus the last three confidentials of the Petitioner for the years 1977, 1978 and 1979 clearly show that despite all that R.P. Singh had to say against her she was fit for promotion and if that was so, she had to be promoted under the second part of Regulation No. 28 on the basis of seniority alone. It is not disputed that she was senior and that she was denied promotion only because of the report written against her by R.P. Singh. Thus her non-promotion was bad in law because once she was found fit for promotion in the last three years, she was, as a matter of right, entitled to a promotion.

10. Before I finally grant relief to the Petitioner, I would like to mention here a disquieting feature of the hearing of this petition. The Petitioner here was required to fight her litigation personally without the aid of legal personnel probably because she has no money to pay to lawyers, being a poor clerk working in a Government department. She did appear in this Court and argued her case to the best of her ability. But since she had her own limitations not being a person from legal world. I was entirely depending upon Mr. Jaykar and I made it very clear to him that with his assistance alone I would be able to do justice in this matter. I am grateful to Mr. Jaykar for all the assistance that he accorded to me. But he too had his limitations. I noticed during the course of the hearing that Mr. Jaykar, who is a young Advocate, was trying his best to assist me but he had to depend upon two officers of the Corporation. The said officers who were present in the Court all throughout are K.V. Raikar, Deputy Regional Director and A.V. Baji, another Deputy Regional Director. These two officers were seen often advising Mr. Jaykar but I noticed that they were, on many s, misguiding Mr. Jaykar. That made Mr. Jaykar's position very embarrassing and at times I found him making inconsistent and contradictory statements. I repeatedly told Mr. Jaykar that his officers were obviously misguiding him and that he should be careful in making inconsistent and contradictory statements. Despite my warning the officers did not relent in their activity of misguiding Mr. Jaykar with the result that the matter was unnecessarily prolonged and a lot of time of the Court was wasted. I do not know why these officers behaved the manner in which they did. They either did not understand what they were doing or they were doing all that deliberately to help out their friend R.P Singh. Therefore they were not properly instructing Mr. Jaykar. The conduct of these officers, to say the least, was unfair to Mr. Jaykar as well as this Court.

11. In conclusion, I say that the adverse remarks made against the Petitioner were manoeuvred by R.P. Singh mala fide due to personal vendetta. In any event, the said adverse remarks were not adequate to deny a promotion to the Petitioner. The Petitioner was also mala fide reverted to the post of Upper Division Clerk. The Petitioner even otherwise was eligible for promotion on the basis of seniority as she was found fit for promotion per her last three years confidential and, therefore, her non-promotion was bad in law. The act on the part of Respondent Nos. 1 to 3 in not promoting the Petitioner was thus unfair, unreasonable, capricious, arbitrary and discriminatory violating the provisions of Articles 14 and 16 of the Constitution of India.

12. In this view of the matter, I allow this writ petition. The impugned office Order No. 114(A) of 1981 dated Feb. 28, 1981 by which 84 persons were promoted is set aside. I direct Respondent Nos. I to 3 to recast the entire promotion order and place the Petitioner at her proper serial number according to her seniority just above the person who was first junior to her and promote her to the post of a Head Clerk on the basis of seniority with effect from December 1, 1980 with all consequential benefits. Rule is accordingly made absolute.

13. Regard being had to the facts and circumstances of this case and especially in view of the fact that promotion was denied mala fide to the Petitioner who is a poor clerk and that too a female and who had to undergo the torture and humiliation of working under her juniors for so many years and had to fight this litigation against her high and mighty employer, I am of the opinion that she should be awarded adequate costs. I quantify the same at Rs. 3000/-and order Respondents Nos. 1 to 3 to pay it to the Petitioner. I hope, the Regional Director of the Corporation will probe into the conduct of R.P. Singh, K.V. Raikar and A.V. Baji in the light of my observations as above and if he deems it fit and proper he may recover the amount of costs of Rs. 3000A from them. The office is directed to forward a copy of this judgment to the Regional Director, Employees' State Insurance Corporation, ESIC Bhavan, Lower Parel, Bombay-400013.

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