Anil Kumar vs PEC University of Technology, Sector 12, Chandigarh and others

Permod Kohli, J.—The petitioner is aggrieved of the promotion of respondent No.3 and the recommendations of respondent No.4 for placing him on the panel of promotion as also his own non-promotion by the respondents for the post of Workshop Instructor vide the impugned order dated 22.10.2009 (Annexure P-4).

Briefly stated, the factual background leading to the filing of the present petition is noticed.

The petitioner was initially appointed as Model Maker on 6.6.1986. He was promoted to the post of Workshop Mechanic with effect from 15.3.1993 and was further promoted as Tech. Cate-VII on 29.11.2002 in the Department of Workshop. Vide subsequent order No.762 dated 3.8.2009, the petitioner was allowed benefit of ACP Scheme on completion of four years of service as Tech. Cate-VII with effect from 29.11.2006 (Annexure P-l). Next promotion from the post of Tech. Cate-VII is to the post of Workshop Instructor which is governed and regulated by statutory rules, namely, Punjab Engineering College Service (Class-III) Recruitment Rules, 1974. Minimum eligibility criteria laid down under the rules is three years regular service in a grade after appointment thereto on regular basis. This post is classified as Class-Ill (Equivalent to Group C). Since the petitioner was substantively appointed as Tech. Cate-VII on 29.11.2002 and thus, on completion of three years service, he became eligible for promotion to the post of Workshop Instructor in December, 2005. A Departmental Promotion Committee was convened in December, 2009 for according consideration to the eligible candidates from the feeding channel against three posts becoming vacant on account of compulsory retirements of Kuldeep Singh W-l, Joginder Ram W-l and SD Sharma W-l. It is stated that out of these three posts, one past was reserved for Scheduled Caste candidate and two were available for General Category Candidates. The petitioner is, admittedly, a General Category Candidate. The petitioner''s name was also included in the eligible candidate for consideration for promotion to the post of Workshop Instructor as is evident from the Agenda Item No.7 which was to be placed before the Departmental Promotion Committee. The petitioner is shown at Serial No.7 in order to seniority amongst General Category candidates. It seems that thirteen officials, including two candidates from Scheduled Castes Category were considered. In the Agenda Item, it is mentioned that Iqbal Singh, Charan Singh and Anil Kumar, are senior most in the feeder cadre on regular basis and there is no official available in the Scheduled Caste Category. Thus, Scheduled Caste vacancy is stated to be carried forward. The petitioner has placed on record Integrity Certificate of all these candidates and none of them have earned adverse comments. The DPC comprised of five members. The DPC recommended two persons namely, Charan Dass and Daulat Ram being fit for promotion, whereas no candidate being available under the Scheduled Caste Category no recommendations was made. Iqbal Singh is, admittedly, senior to the petitioner but he was found not fit for promotion because of average grading in the year 2003-04, as is evident from the recommendations (Annexure P-5) made by the DPC. These recommendations were accepted by the Director. The petitioner was accordingly communicated vide letter dated 10.11.2009 (Annexure P-6) about his non-selection due to average ACRs. The DPC while recommending promotion of two General Category candidate also empaneled respondent No.4 for promotion in future. The recommendations of the DPC with regard to placement of respondent No.4 in the panel are also being assailed in the present writ petition.

The contention of the petitioner is that the petitioner has been illegally ignored by the DPC by taking into consideration un-communicated ACRs for the year 2003-04 wherein the petitioner was awarded average grading. It is further the case of the petitioner that these ACRs would not have been taken into consideration being beyond preceding five years from the date of consideration by the DPC. As regards the empanelment of respondent No.4 is concerned, the grievance of the petitioner is that the DPC made its recommendations even when no third vacancy was available, thus, the empanelment of respondent No.4 was against a future vacancy for which the petitioner has a better and preferential claim of consideration as and when next DPC takes place. It is further submitted that in such eventuality even the ACRs for the period of 2003-04 cannot come in the way of the petitioner. The respondents have laid down guidelines/norms for promotion from one category to another. These norms were notified by the Chandigarh Administration. The relevant norms for promotion are as follows:-

"6.2.1. Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each D.P.C. The evaluation of CRs. should be fair, just and nondiscriminatory. Hence-

(a) The DPC should consider CRs. for equal number of years in respect of all officers considered for promotion subject to (C) below.

(b) The DPC should assess the suitability of the officers for promotion on the basis of their service record and with particular reference to the CRs. for 5 preceding years. However, in cases where the required service is more than 5 years, the DPC should see the record with particular reference to the CRs for the years equal to the required qualifying service. (If more than one C.R. has been written for a particular year all the CRs. for the relevant year shall be considered together as the C.R. for one year).

(c) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx

(d) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx

(e) The DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries in the CRs. because it has been noticed that some times the overall grading in a CRs. may be inconsistent with the grading under various parameters or attributes.

(viii) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx

(ix) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx

(x) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx

(xi) Because further as per supplementary guidelines approved by the Chandigarh Administration, conveyed vide letter dated 9.9.2002 to the respondent No. 1, para no. 1 of which reads as under:-

(1) Only clear vacancies arising out due to death, retirement, resignation may be put before the DPC".

This rule further lays down the criteria for making promotions particularly in respect to the Bench Mark. The relevant, conditions are contained in paragraph 6.3.1 which are reproduced as follows:-

6.3.1: The list of candidates considered by the, DPC and the overall grading assigned to each candidate, would form the basis for preparation of the panel for promotion by the DPC. The following principles should be observed in the preparation of the panel.

(i) Having regard to the levels of the posts to which promotions are to be made, the nature and importance of duties attached to the posts a bench mark grade would be determined for each category of posts for which promotions are to be made by selection method. For all Group "C", Group "B", Group "A" posts upto (and excluding) the level of Rs.3700-5000 excepting promotions for induction to Group "A" posts or services from lower groups, the bench mark would be "Good". All officers whose overall grading is equal to or better than the bench mark should be included in the panel for promotion to the extent of the number of vacancies. They will be arranged in the order of their inter se seniority in the lower category without reference to the overall grading obtained by each of them provided that each one of them has an overall equal to or better than the bench mark of "Good".

From the procedure and the criteria prescribed under the guidelines referred to above, it appears that for promotion normally ACRs preceding five years of the date of consideration should form the basis for assessing a candidate for promotion. It is further laid down that minimum bench mark for promotion should be "good" grading of the ACRs. Admittedly, the petitioner had one average grading in the year 2003-04. The DPC was held on 22.10.2009 that means ACRs for the preceding five years i.e. upto 2004-05 should have been taken into consideration. During these years, the petitioner had, at least, good grading. This fact is apparent from the respondents reply and the impugned order whereunder the petitioner has been denied promotion for having the average ACRs during the period 2003-04 which means that for subsequent years the petitioner was having good or above grading. The relevant five years preceding the date of DPC consideration, should be 2004-05. 2005-06, 2006-07, 2007-08 and 2008-09 and not 2003-04.

The contention of the petitioner is that an average grading is an adverse entry and the same having not been communicated to him should not have been taken into consideration for purposes of according promotion to the petitioner, it is settled legal position that un-communicated adverse ACRs could not be relied upon for consideration for promotion. In support of this contention, the petitioner has referred to various judgments of this Court and the Hon''ble Supreme Court.

In Abhijit Ghosh Dastidar v. Union of India and others, Civil Appeal No. 6227 of 2008, decided on 22.10.2008, Hon''ble the Supreme Court held that uncommunicated down graded entry of ACRs cannot be taken into consideration for purpose of promotion. In this case also, the employee had earlier earned "Very Good" reports and thereafter "good". Taking into consideration the goods grading, the employee was denied promotion. Hon''ble the Supreme Court set aside the order of non-promotion and directed that the appellant be deemed to have been given promotion from the date his junior was promoted.

In Dev Dutt Vs. Union of India (UOI) and Others, , the Hon''ble Supreme Court has held that all kinds of entries in the confidential reports good or adverse should be communicated to the public servant. The relevant observations are contained in paragraph 14 and 20 of this judgment, which are as follows:-

"14. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or m instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no bench mark, non-communication of an entry may adversely effect the employee''s chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit), a person having a "good" or "average" or "fair" entry certainly has less chances of being selected than a person Slaving a "Very Good" or "outstanding" entry.

Thus, it is not only when there is a bench mark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder".

In view of the dictum of the aforesaid judgments that not only the adverse ACRs but even good and above rated ACRs are also to be communicated to the concerned official to enable, him to know about his own virtues and weaknesses. A similar view has been expressed by a latest judgment of the Hon''ble Supreme Court in the case of Indu Bhushan Dwivedi Vs. State of Jharkhand and Another, , wherein it is held as follows:-

"18. The proposition laid down in the above noted judgment represents one of the basic canons of justice that no one can be condemned unheard and no order prejudicially affecting any person can be passed by a public authority without affording him reasonable opportunity to defend himself or represent his cause. As a general rule, an authority entrusted with the task of deciding lis between the parties or empowered to make an order which prejudicially affects the rights of any individual or visits him with civil consequences is bound to act in consonance with the basic rules of natural justice including the one that material sought to be used against the concerned person must be disclosed to him and he should be given an opportunity to explain his position. This unwritten right of hearing is fundamental to a just decision, which forms an integral part of the concept of rule of law. This right has its roots in the notion of fair procedure............If the employer uses some material adverse to the employee about which the latter is not given notice, the final decision gets vitiated on the ground of the violation of the rule of audi alteram partem ".

The petitioner has been deprived promotion only on account of one ACR which was rated as "average". In the reply, in paragraph 4 it is specifically pleaded that even prior to years 2002-2003, the petitioner''s grading was average. It is admitted position that this period is not relevant for consideration. The rules governing the promotion also deal with the question of average ACRs. Rule, 6.4.1 reads as under: -

"6.4.1: Government also desires to clear the misconception about "Average" performance. While "Average" may not be taken as adverse remarks in respect of an officer, at the same time, it cannot be regarded as complimentary to the officer, as "average" performance should be regarded as routine and undistinguished. It is only performance that is above average and performance that is really noteworthy which should entitle an officer to recognition and suitable rewards in the matter of promotion".

Under this rule, even though the average report is not an adverse report, however, at the same time, the performance of the petitioner beyond average performance should be taken into consideration for promotion. In view of this rule, average ACRs, even if not taken as adverse are still required to be communicated for the simple reason that an average report in an officers career is capable of depriving him of chances of promotion and in keeping in view the spirit of this rule, the average grading has to be termed as adverse for purpose of promotion; In view of the law laid down in Dev Dutt''s '' case (supra) and the rules referred to hereinabove, the petitioner was required to be communicated adverse/average grading for whatever years. Without communication of such grading, the same cannot be pressed, into service to deny promotion to the petitioner. Thus, non-promotion of the petitioner on this ground alone is not -sustainable in law being violative of Article 14 of the Constitution of India.

The petition has to succeed on another ground as well raised by the petitioner. It is admitted position that only two vacancies were available but respondent No. 4 has been empaneled for promotion for a future vacancy. Respondent No.4 is, admittedly, junior to the petitioner. It is not the case of the respondents that the petitioner is not entitled to be considered for future vacancy and, thus, the right of promotion passes on to the next candidate. The petitioner still has the right to be considered for future vacancy and in that eventuality his ACRs for the preceding five years are to be examined. If he earns good or above rating in the fixture ACRs, he is bound to earn promotion as ACRs for the relevant years would be good and above. By empanelling respondent No.4 the petitioner''s chances for future promotion have been not only curtailed, rather marred. This seems to be a device to overtake the petitioner and, thus, to deny him his right of consideration for promotion against a future vacancy. It is a clear case of violation of petitioner''s civil right and arbitrary exercise of authority by DPC. It amounts to violation of Article 14 of the Constitution of India.

Promotion of respondent No3 and empanelment of respondent No. 4 against future vacancy vide impugned order dated 22.10.2009 (Armexure P-5) is hereby quashed. Resuhahtly, case is remitted back to the DPC to reconsider promotion of the petitioner and respondent Nos.3 and 4 along with other candidates within zone of consideration, ignoring un-communicated ACRs of petitioner. If on such consideration petitioner is unable to earn promotion, he shall be considered for promotion against future vacancy as and when accrues along with other eligible candidates in accordance With rules. No costs.