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Judgment
,,,,
Vide the present petition, the petitioner has prayed as under :-",,,,
(A)“Issue a writ of certiorari quashing the ACR of the petitioner for the period 2009-2010 initiated by Sh. R K Singh.,,,,
(B) Issue a writ of certiorari quashing the order dated 21.03.2013 in so far as it excludes the name of the petitioner for promotion to the post of,,,,
Controller;,,,,
(C) Issue of a writ of mandamus directing the respondents no.1 and 2 to reconsider the case of the petitioner for promotion to the post of Controller by,,,,
ignoring his ACR for the period 2009-2010 initiated by Sh. R K Singh and reviewed by Sh. Harish Kumar and by considering his ACR for the same,,,,
period initiated by Sh. B S Puria and reviewed by Sh. Santosh Kumar and if found fit, grant him all consequential benefits.â€.",,,,
The brief facts of the case are that the petitioner joined respondent no.2 about 20 years ago and presently working as an Assistant Controller. Vide,,,,
order dated 16.7.2007, the petitioner was promoted from the post of Technical Assistant Grade-I to the post of Assistant Controller (E/M) and was",,,,
placed at serial no. 8 in promotion order. Thus, the petitioner was senior to respondent nos. 3 to 13 amongst the 22 Technical Assistant Grade-I",,,,
promoted as Assistant Controller.,,,,
Pursuant to aforesaid order dated 16.7.2007, on 9.5.2008, the petitioner was posted to Coal Handling Plant (CHP) Section after being relieved from",,,,
the post of the Dy. General Manager (Operations) vide order dated 5.5.2008, and accordingly, he reported to Shri B.S.Puria, Manager (CHP) for",,,,
taking the charge of his new assignments and a joining letter dated 13.5.2008 was issued by Shri B.S.Puria. Accordingly, the petitioner was working in",,,,
CHP section from 1.4.2009 to 11.12.2009, where Shri G K Sharma was the Assistant Manager and Mr. B. S. Puria was the Manager. On",,,,
11.12.2009, the petitioner was removed from CHP section and transferred to the store Section where Shri B S Puria was the Manager and Shri",,,,
Santosh Kumar (Dy. Manager), where he remained posted from 12.12.2009 to 28.5.2010. While, the petitioner was working as Assistant Controller,",,,,
the respondent no.2 issued an office order dated 21.3.2013 promoting 23 persons from the post of Assistant Controller to Controller, however, the",,,,
petitioner has been superseded and respondent no. 3 and other officers junior to him were placed at serial no. 8 onwards in the said orders.,,,,
Thereafter, the petitioner made inquiries as to reasons for his supersession, but he was not informed anything. Consequently, he was constrained to",,,,
make an application on 28.3.2013 under RTI Act seeking copies of his ACRs from April, 2008 to March, 2012 and also made an application to the",,,,
Director (HR) dated 5.4.2013 requesting him to consider his case for promotion or at least inform him the reasons for his non-promotion.,,,,
Mr. Anunaya Mehta, learned counsel appearing on behalf of the petitioner submits that though the petitioner is not seeking any relief against",,,,
respondent no.3, but since he is seeking his retrospective promotion with effect from the same date i.e. 21.3.2013 vide which the respondent no.3, who",,,,
was also junior to him had been promoted along with 15 other officers junior to him as Controller, the petitioner has impleaded initially respondent no.3",,,,
in his representative capacity as senior to those 16 persons is likely to be affected in the case if the petitioner succeeds before this Court. However,",,,,
vide order dated 8.5.2018, this Court directed, let all the affected persons be impleaded as respondents. Consequently, the petitioner has impleaded",,,,
respondent nos. 4 to 18 and all have filed their counter affidavit stating that they have been promoted to the post of Assistant Controller from the post,,,,
of Technical Assistant Grade-I in the year 2007. The next promotional post is Assistant Manager (Technical) and as per the recruitment Rules, both",,,,
Assistant Controller and Controller are eligible to be promoted as Assistant Manager (Technical) with 7/5 years experience respectively to their best,,,,
knowledge, to which, approximately 40 numbers of posts of Assistant Manager (Technical) are lying vacant and are not being filled up in the years",,,,
due to interim order passed by this Court.,,,,
It is further stated that if this Honâ€ble Court is gracious enough and allow promotion, the petitioner and other respondents/employees may be",,,,
promoted to the post of Assistant manager (Technical). In case, any benefit is given to the petitioner, the same may be given to the petitioner without",,,,
any damage/loss to them as they are working at the post of Contractor on regular basis for the last 5-6 years to the entire satisfaction of their,,,,
superiors.,,,,
Learned counsel appearing on behalf of the petitioner submits that it is an admitted fact that the respondent nos. 3 to 18 have not disputed the fact,,,,
that the petitioner was promoted vide order dated 16.7.2007 from the post of Technical Assistant (Grade-I) to the post of Assistant Controller and was,,,,
placed at serial no. 8 in promotion order and was thus senior to respondent nos. 3 to 18. The aforesaid respondents nowhere stated in the counter,,,,
affidavits that the petitioner is not senior to them in terms of promotion order dated 16.7.2007.,,,,
Learned counsel for the petitioner submits that the petitioner submitted an application dated 4.5.2013 requesting the respondent that his ACR,,,,
forwarded by Mr. B S Puria and reviewed by Shri Santosh Kumar may be considered for promotion from the post of Assistant Controller to,,,,
Controller as per his seniority, but received no reply. Thereafter, sent a reminder dated 5.6.2013, in addition, submitted an application dated 12.8.2013",,,,
under RTC Act for knowing the status of his earlier application dated 5.4.2013.,,,,
Subsequently, the respondents issued a memorandum dated 11.9.2013 to the petitioner allowing therein that the petitioner was working under Shri R",,,,
K Singh with effect from 9.5.2008 to 11.12.2009 and therefore the facts stated in his representation dated 4.5.2013 were not correct and asked the,,,,
petitioner to justify his claim with documentary proof regarding his plea that he was working under Shri G K Singh and Mr. B S Puria in the CHP,,,,
section. Accordingly, the petitioner submitted reply dated 21.9.2013 to the memorandum dated 11.9.2013 and similarly made an application dated",,,,
13.9.2013 under the RTI Act for supply of copies of ACRs for the year 2009-2010 and also sought to know as to who has signed his leave,,,,
applications from January, 2009 to March, 2010. Further, requested for copy of office orders in the year 2009-2010 under which he was allegedly",,,,
directed to work under the control of Shri R K Singh.,,,,
In response to his reply dated 21.9.2013, the petitioner was vide letter dated 22.10.2013 provided a copy of his ACRs for the period 2009-2010 and",,,,
on 17.12.2013, after filing an appeal was informed that there was no copies/data available to show that in the year 2009-2010 he was directed to work",,,,
under the control of Shri R K Singh.,,,,
Learned counsel submits that vide memorandum dated 5.12.2013, the petitioner was asked to make representation against his ACRs for the period",,,,
2009-2010 and 2010-2011, if he so desires and accordingly, the petitioner submitted detailed representation dated 21.12.2013. However, the petitioner",,,,
received no reply and therefore, he submitted an application dated 29.4.2014, wherein he pointed out the injustice done to him. Vide office",,,,
memorandum dated 5.9.2014, the petitioner was informed that his case was examined by the competent authority and there was no change in his",,,,
earlier ACR for the following period :,,,,
2009-2010 with effect from 1.4.2009 to 11.12.2009 â€" “Averageâ€.,,,,
2010-2011 with effect from 21.10.2010 to 31.3.2011 - “Averageâ€.,,,,
Period,"D epartment of
Posting",Reporting Officer,"Reviewing
Officer",Ranking
01.04.09 to 11.12.09,Coal Handling Plant,Sh.R.K.SinghDM (T),"Sh.Harish
Kumar-MGR (T)",Average
12.12.09 to 31.03.10,Stores,Sh.B.S.PuriaMGR(T),"Sh.Kumar
(Santosh
Kumar)DGM",Good
“Therefore, Sh. Santosh Kumar, now GM(T) IP Stn. Is instructed to put on record the name of immediate officers of Sh. M.D.Sharma, Assistant",,,,
Controller, during the period from 01.04.2009 to 31.03.2010 and posting of Sh. B.s.puria and Sh. R.K.Singh during this period to ascertain the",,,,
authenticity of both the ACRs of the same period,",,,,
Sd/-,,,,
09.01.2017,,,,
Jagdish Kumar,,,,
Director (T)â€,,,,
Learned counsel further submits that the conclusions of Shri Santosh Kumar now GM (T) IP Station were given as under:-Â,,,,
“In reference to the noting of Dir (T) on page-19/N, the clarification in chronological order is as under:-",,,,
Sh. M.D.Sharma joined his duty as Asstt. Controleer in Coal Handling Plant at IP Station on 09.05.2008 and his immediate Reporting Officer was Sh.,,,,
R.K.Singh, AM (CHP) and Sh. B.S.Puria was Manager (CHP) who later on transferred to Store Department IP Station on 03.08.2009 and since then",,,,
Sh.R.K.Singh was the AM(I/C) CHP, IP Station (circular at page-25/Cr.).",,,,
Sh. M.D.Sharma, Asstt. Controller, transferred to Store, IP Station on 11.12.2009 (page-30 b/Cr.) under the control of Sh. B.S.Puria, Manager",,,,
(Store).,,,,
From the above fact, it is revealed that from 01.04.2009 to 11.12.2009, Sh. R.K.Singh was the Reporting Officer of Sh. M.D.Sharma and from",,,,
12.12.2009 to 31.03.2010 Sh. B.S.Puria was the Reporting Officer of the Sh.M.D.Sharma (since there was no Asstt. Manager available in store).,,,,
Hence, ACR for the period from 01.04.2009 to 11.12.2009 was reported by Sh.R.K.Singh and ACR for the period from 12.12.2009 to 31.03.2010 was",,,,
reported by Sh.B.S.Puria, Manager (Store).",,,,
Submitted Please,,,,
Sd/- 25.01.2014,,,,
(Er.Santosh Kumar),,,,
General Manager (T) RPHâ€,,,,
While concluding, learned counsel for the respondent no. 2 has argued that as per the finding, ratings of Shri Murlidhar Sharma for the relevant",,,,
period were as under :,,,,
“1. 2009-10-Period w.e.f. 01.04.2009 to 11.12.2009- Average.,,,,
2009-10 â€" period w.e.f. 12.12.2009 to 31.03.2010 â€"Good.,,,,
2010-11 â€" period w.e.f. 02.06.2010 to 31.03.2011-Average.,,,,
2010-11 â€" period w.e.f. 1.0.2010 to 20.10.2010 â€" Good.â€x,,,,
Thus, on account of his average ratings, he was found unfit for promotion. He further submits that the petitioner himself represented against the",,,,
ACRs in question for twice which were sent to their Reporting and Reviewing Officer again to look/re-look. Accordingly, the Functional Director",,,,
being the competent authority for final review has rated to the petitioner as “Average†for the period 2010 i.e. 1.4.2009 to 11.12.2009 and 2010-,,,,
2011 (period 21.10.2010 to 31.3.2011 as Average) and further Functional Director/Competent Authority has mentioned in his note that the petitioner,,,,
worked at Coal Handling Plant at IP Station and also at Bawana Plant and he does not deserve any review for the betterment rating, since he was",,,,
uncomfortable to the work requirement and also took the opportunity of his medical treatment either not to working in shift or to other department or,,,,
station. Accordingly, his final rating has not been considered for up-gradation by the competent authority. Thus, the judgments relied upon by the",,,,
petitioner are of no help to the petitioner in the present facts and circumstances of the case.,,,,
Admittedly, the entries made in ACR of 2009-10 and 2010-11 have not been communicated to the petitioner before holding DPC for the promotion",,,,
in question. Therefore, there is no necessity to discuss that who was Reporting Officer and Reviewing Officer of the petitioner for the year 2009-",,,,
2010. However, for the sake of repetition, from the period from 1.4.2009 to 11.12.2009 his ACR was Average, but from 12.12.2009 to 31.03.2010",,,,
was good. So for the period 2.6.2919 to 31.03.2011, “Average†and 1.04.2010 to 20.10.2010 was good. Undisputedly, both the ACR not",,,,
communicated to the petitioner.,,,,
In case of Sukhdev Singh (supra), it is held that the entries not be taken into consideration if not communicated to the employee. In the case in",,,,
hand, the entries of the year 2009-2010 and 2010-11 have not been communicated but considered for promotion, which is against the settled law.",,,,
In view of above discussion and settled law, the petitioner is entitled for the promotion in question. Consequently, the respondents are directed to",,,,
promote the petitioner with all consequential benefits w.e.f. the date his junior was promoted.,,,,
The writ petition is allowed accordingly, with no order as to costs.",,,,
Pending application, if any, is also disposed of.",,,,