Puran Singh vs State Of Haryana And Others

Sandeep Moudgil, J

Prayer

The petitioner has approached this Court under Articles 226/227 of the Constitution of India seeking direction to the respondents to promote him to the post of Kanungo with effect from the date his juniors, including respondent No.3, were promoted, and further prayer for the grant of consequential benefits.

Brief Facts:-

The petitioner was appointed as a Patwari in the Revenue Department, District Gurgaon, in the year 1958. He belongs to a Backward Class category and is educationally qualified up to Middle standard and he subsequently passed the Kanungo departmental examination in 1984. As per the Haryana Kanungo Service (Group-C) Rules, 1981, matriculation was required for promotion to the post of Kanungo. However, this requirement was relaxed by the Governor of Haryana vide order dated 12.02.1985 in favour of Patwaris who had joined service prior to 04.01.1966, making Middle pass candidates like the petitioner eligible. Despite this relaxation, the petitioner was denied promotion, and his juniors were promoted on 24.04.1995. The petitioner’s case was ignored on the grounds of alleged adverse entries in the ACRs for the years 1970-71, 1982-83, and 1985-86, and pendency of a criminal case under Section 420 IPC. The adverse entry for 1982-83 was expunged, and the other adverse remarks were never communicated to the petitioner. The criminal case also ended in acquittal by order dated 22.09.1995. After filing a writ petition in 1995 and subsequently submitting representations, the petitioner was eventually promoted vide order dated 23.02.1996. However, his grievance remained regarding retrospective promotion from the date his juniors were promoted, along with consequential benefits.

Contentions:

On behalf of the petitioner:-

Learned counsel for the petitioner submitted that the petitioner was wrongly and arbitrarily denied promotion to the post of Kanungo despite fulfilling the prescribed qualifications, as relaxed by the State Government vide order dated 12.02.1985. It was contended that the petitioner, having joined service in 1958 and passed the Kanungo departmental examination in 1984, fully satisfied the eligibility criteria for promotion.

The learned counsel argued that the main grounds for denial of promotion to the petitioner, namely, the petitioner’s non-possession of matriculation, adverse entries in his ACRs, and pendency of a criminal case against the petitioner were legally unsustainable as it was pointed out that the petitioner was eligible due to the relaxation order passed by the State Government, the adverse remarks for 1970-71 and 1985-86 were never communicated and hence could not be relied upon, and the adverse remarks for 1982-83 had already been expunged. Further, the petitioner had been already acquitted of the criminal charges, and it was a settled position of law that mere pendency of a criminal case could not be a ground to deny promotion. It was further submitted that the petitioner’s juniors were promoted on 24.04.1995, and denial of promotion in his case amounted to discrimination and violation of Articles 14 and 16 of the Constitution. The learned counsel prayed that the petitioner be granted notional promotion from the date his juniors were promoted, with all consequential benefits including seniority and arrears.

On behalf of respondent/State

On the other hand, learned counsel for the respondents submitted that while the petitioner was not initially promoted due to entries of doubtful integrity in his ACRs and pendency of a criminal case, his case was later considered in light of his representations and he was ultimately promoted as Kanungo vide order dated 23.02.1996. It was contended that the respondents had exercised due diligence and acted in good faith, considering the material available at the time of the earlier promotion exercise.

The learned State counsel further submitted that since the petitioner had already been promoted, the writ petition had become infructuous and did not warrant further interference. Regarding seniority and consequential benefits, it was argued that those aspects would be dealt with in accordance with rules and applicable service regulations, and the petitioner could not claim automatic entitlement to retrospective benefits as a matter of right.

Heard learned counsel for the respective parties.

Analysis

Having heard learned counsel for the parties and upon careful perusal of the record, this Court is of the considered view that the petitioner was unjustifiably denied promotion to the post of Kanungo at the time when his juniors were promoted on 24.04.1995. The facts of the case lay bare a disturbing pattern of administrative apathy and procedural impropriety. It is not in dispute that the petitioner joined service as a Patwari in 1958 and belongs to a Backward Class. As per the Haryana Kanungo Service (Group-C) Rules, 1981, matriculation was initially a required qualification for promotion. However, the State itself, recognising the reality of its service structure, had relaxed the requirement of matriculation for Patwaris who joined before 04.01.1966 through its a specific relaxation order dated 12.02.1985 issued by the Governor of Haryana under Rule 17 of the said Rules, this requirement was relaxed to “Middle pass” for Patwaris who had joined service prior to 04.01.1966. Therefore the petitioner fully satisfied the educational qualification criteria as relaxed and was otherwise eligible for promotion, having also passed the Kanungo departmental examination in 1984. The petitioner thus did not ask for a concession but invoked his right and yet, this right was denied.

The respondents, in their initial rejection of the petitioner’s case, cited the existence of adverse entries in his Annual Confidential Reports (in short as ACRs) for the years 1970–71, 1982–83, and 1985–86, along with the pendency of a criminal case under Sections 419, 420, 468, 471, and 120-B IPC. However, this Court finds that the rejection of the respondents warrants judicial scrutiny.

First and foremost, it is a well-established principle that adverse entries in the ACRs must be communicated to the concerned employee in a timely manner, enabling an opportunity to represent and improve. Discussing the reliability on adverse remarks recorded in ACR to deny promotion, the Supreme court in “Gurdial Singh Fiji v. State of Punjab, 1979(1) S.L.R. 804”, observed as under :

''The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstance leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified "

Further, this Court in “Sansar Chand Sood v. State of Haryana, 1982 (1) SLR 813 (P&H)”, held that uncommunicated adverse remarks cannot be used to deny promotion, as doing so would be violative of the principles of natural justice. As per tenets of service jurisprudence, an uncommunicated adverse entry is a dead letter and cannot be resurrected at the time of promotion to the detriment of the employee In the present case, it has been admitted that the adverse remarks for 1970–71 and 1985–86 were never communicated to the petitioner, and the remarks for 1982–83 were expunged by the competent authority vide letter dated 03.07.1993. Hence, no adverse material could have legally been relied upon to deny promotion.

Moreover, another settled position in service jurisprudence that mere pendency of a criminal case cannot be a ground to withhold or deny promotion, unless the employee is convicted or found guilty after due process. The Supreme Court in Union of India v. K.V. Jankiraman, AIR 1991 SC 2010, held that the mere pendency of a criminal case or departmental proceedings cannot be a bar to promotion unless a charge sheet has been issued or a conviction recorded. In the present case, not only was the petitioner never convicted, but he was acquitted of all charges vide judgment dated 22.09.1995 by the Judicial Magistrate, Ist Class, Nuh. Therefore, the respondents’ reliance on such pending proceedings at the time of denying promotion is legally untenable.

Though the respondents ultimately promoted the petitioner as Kanungo vide order dated 23.02.1996 after filing of this writ petition and several representations, the fact remains that the petitioner was illegally denied promotion when his juniors were promoted. Justice delayed, even when granted, cannot erase the fact that for a crucial period, the petitioner stood sidelined while his juniors marched ahead. He did not seek indulgence but he sought equality and denial of such promotion, particularly when based on legally unsustainable grounds, amounts to arbitrary action violative of Articles 14 and 16 of the Constitution of India. Therefore, the petitioner is entitled to notional promotion with effect from 24.04.1995 the date on which his juniors were promoted along with consequential benefits of seniority and arrears and he must stand restored to that seniority and dignity which was denied to him on unsustainable grounds..

This Court is also mindful that delays and procedural lapses in deciding representations and enforcing relaxation orders undermine the very purpose of such service regulations and create a sense of injustice among eligible employees. The respondents failed to act in a timely, fair, and legally sound manner, and only acted after litigation ensued.

Conclusion

In light of the foregoing discussion and for the reasons recorded above, the present writ petition stands allowed. The respondents are hereby directed to treat the petitioner as having been promoted to the post of Kanungo with effect from 24.04.1995, i.e., the date on which his juniors were promoted, as reflected in Annexure P-5. Consequently, the petitioner shall be assigned seniority above respondent No.3 and other juniors promoted on the said date and be entitled to all consequential benefits, including arrears of pay, pensionary benefits, and other admissible service benefits. The entire exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.

Ordered accordingly.