Madan Lal vs State of Haryana

M. Jeyapaul, J.—It is an unfortunate case where the 1st Appellate Court meekly accepted the contention of the State that the plaintiff was not entitled to promotion as there were adverse entries in the Annual Confidential Reports during the relevant period, despite the fact that it was not duly conveyed to him by the department.

The plaintiff who is the appellant herein filed the suit claiming his due promotion. His grievance is that his juniors were promoted as on 21.2.1983 and 14.7.1983 respectively but his case for promotion was not considered by the department.

The State took up a plea in its written statement that the plaintiff had earned adverse entry in his ACR for the period 1975-1976, 1976-1977 and 1978 till March 1979. It is his further contention that the plaintiff earned adverse remarks even for the period from 1.4.1979 to 6.7.1979. Therefore, the plaintiff was rightly not promoted when his juniors were promoted, it was contended.

The trial court having thoroughly adverted to the evidence on record in right perspective held that the adverse entry in the ACR pertaining to the period 1975-1976, 1976-77 and 1978 to March 1979 were not at all conveyed to the plaintiff till 2.3.1985. Even the communication sent by the department as regards the adverse entry made in the ACR of the plaintiff pertaining to the period from 1.4.1979 to 6.7.1979 was ultimately expunged as per the order passed on 25.11.1983 on the basis of the representation made by the plaintiff. Inasmuch as the adverse entries were not duly communicated to the plaintiff, such adverse entries cannot be taken note of by the department while considering his promotion, it was further held.

The First Appellate Court upset the decision of the trial court on the ground that the adverse entry would go to show that the plaintiff was a corrupt official. Though there was some delay in conveying the adverse entry, the fact remains that the same was conveyed to the plaintiff. Ultimately, the First Appellate Court chose to allow the appeal preferred by the State.

The following substantial questions of law are formulated for determination:-

(i) Whether the Appellant can be ignored for promotion, relying upon the adverse reports from 1975 to 1979, which were conveyed after seven to nine years.

(ii) Whether the appellant can be ignored for promotion on the basis of adverse report from 1.4.1979 to 6.7.1979 which were ultimately expunged on 25.11.1983.

The learned Counsel appearing for the appellant would vehemently submit that inasmuch as the adverse entries were not duly communicated to the plaintiff, such entries cannot be taken note of to his prejudice. Even otherwise it is his submission that the adverse entry pertaining to the period from 1.4.1979 to 6.7.1979 which was conveyed on 21.2.1981 was expunged only on 25.11.1983. Inasmuch as the adverse entry during the above period had been expunged the department should have given promotion to the plaintiff right from the date when his juniors were promoted.

The learned counsel appearing for the State would submit that as on 21.2.1983 the plaintiff had earned adverse remarks and the same had been entered in his ACR for the period from 1.4.1979 to 6.7.1979. Though the adverse entry made for the above period was expunged later on 25.11.1983, as on the date of consideration of his promotion on 21.2.1983 and 14.7.1983 the adverse remarks were on file. Therefore, it is her submission that the department has rightly denied promotion to the plaintiff. Even otherwise the plaintiff would have only a right to claim promotion. It is the exclusive domain of the department to consider his competency for promotion and deny it.

At the outset let me make it clear that the Appellate Court has completely erred in considering the matter in proper perspective. It is the well settled proposition of law that when an adverse entry had not been communicated within a reasonable time the same shall not be taken note of to the prejudice of the employee concerned. The communication sent by the State would inform the head of the departments that any adverse entry in the ACR made by the department concerned as against the employee shall be communicated within three months. Even disciplinary proceedings have been contemplated as against the head of the department who failed to communicate the adverse entry within time stipulated.

There is no dispute to the fact that the adverse entry made in the ACR of the appellant pertaining to the period from 1975 to March 1979 had not been communicated within a reasonable time. Only after a lapse 7 to 9 years the same had been communicated. In other words such a communication had been made by the department only after the appellant had been overlooked in the matter of promotion and his juniors were promoted. In my view, the department should not have taken note of the adverse entries made by them for the period from 1975 to March 1979 as they had not been communicated till two juniors in rank of the plaintiff/appellant were promoted as on 21.2.1983 and 14.7.1983.

Coming to the adverse entry made in the Annual Confidential Report of the appellant for the period from 1.4.1979 to 6.7.1979 it is a matter of record that the same was conveyed on 21.2.1981 but unfortunately the representations twice made in the interregnum had not been disposed of by the department till two juniors of the appellant had been promoted. Finally the representations made by the appellant had been disposed of on 25.11.1983 expunging the remarks for the period from 1.4.1979 to 6.7.1979.

I fail to understand the submissions made by learned State counsel that inasmuch as the adverse entry made for the period from 1.4.1979 to 6.7.1979 was very much there on the ACR as on the date of promoting the juniors of the appellant on 21.2.1983 and 14.7.1983 the appellant was not entitled to be considered for promotion.

Firstly, the department should have disposed of the representation made by the appellant on 21.2.1981 as expeditiously as possible at least before 21.2.1983 the date on which the junior of the appellant was promoted. It appears that the department had conveniently sat upon the file and leisurely disposed of the representation well after the juniors of the appellant were promoted. Further, the adverse remarks expunged get obliterated from the date when it was made. In other words, the adverse entry made by the department for the period from 1.4.1979 to 6.7.1979 got completely erased from the records the moment the order was passed by the department on 25.11.1983. The department should have woken up and considered the case of the appellant for promotion at least after expunging the remarks on 25.11.1983.

I find that the trial Court has rightly evaluated the materials on record and come to a correct conclusion that the appellant was entitled to promotion from the date when his junior Murari Lal was promoted, inasmuch as the adverse entries had virtually no effect as the same had not been communicated and adverse entry made for the brief period subsequently was expunged on the basis of the representation made by the appellant.

In view of the above, the substantial questions of law formulated by this Court are answered accordingly and the judgment and decree passed by the trial Court is affirmed and the judgment and decree passed by the First Appellate Court is reversed. Ultimately, the appeal is allowed with cost.