Ram Karan vs The State of Haryana

K. Kannan, J.—The writ petition is a challenge to denial of promotion from the post of Sub Inspector to Inspector from the day when his junior was promoted upto the point that the petitioner had been superseded in the promotion to the post of ASI and Sub Inspector when junior Har Narain was promoted earlier. The State accommodated the petitioner''s plea and granted to him promotion from the respective dates when the junior was promoted namely to be effective from 28.12.1981 and 28.05.1982. although, the petitioner had been promoted as ASI on 12.03.1983 and as SI from 10.03.1989.

While Har Narain had been promoted as Inspector on 16.08.1988, the petitioner had not been considered for promotion from that date and the contention for rejection of the petitioner''s plea was that as per the instructions issued on 01.07.1981, an employee had to have 70% good reports in the ACR during the relevant period and since he did not have good reports, he could not be so considered.

Learned counsel appearing on behalf of the petitioner has three grounds to mount as challenges. One, the criterion that should have prevailed for consideration of promotion made to the petitioner when he was promoted as Sub Inspector on 10.03.1989 was the same also for promotion to the Inspector and if he could have promoted on their own on 10.03.1989, there was no scope for denying the promotion to the post of Inspector during the same period. Two, if good reports were relevant for promotion and a grading less than good would have an adverse impact on his promotion prospects, the same could not have been entered without affording an opportunity to the petitioner to explain before they were finalized. The petitioner had been served with adverse reports for the year 1984, 1985 and 1986 all of which had been modified or expunged, the details of which have been already given in paragraphs 8 and 9 of the writ petition and there was no communication of any other adverse report to subject him to a disqualification for promotion to the next post. Three, the policy taken on 01.07.1991 requiring 70% good reports should be applied only to the service after 1984-85 and for all the period before 1984-85, the prevalent instructions of 50% good reports alone could have been relevant. The petitioner could not have been denied of his claim to promotion by looking for 70% good reports for the entire period prior to the date when he was due for consideration for promotion when his junior was promoted.

As regards the last point, there has been already an expression of judicial mind by my brother Judge when he gave a direction on 20.02.2014 to the respondents to produce ACR record of the petitioner pertaining to the period of consideration for promotion to the post of Inspector. Learned counsel appearing on behalf of the State would, therefore, state that 70% of the reports must be good for the relevant period before a consideration for promotion when his junior was promoted and it could not be split into two periods i.e. period before 09.05.1985 and period after 09.05.1985. I accede to the plea by the State and I would take it relevant only for first two points which are raised by learned Senior Counsel appearing on behalf of the petitioner.

In the first place, I must observed that there has been no compliance of the direction given by this Court on 20.02.2014. The State counsel would submit that he has the records in his office and he has also instructed personnel from the police department but the same has not been verified to apprise the Court of whether he had 70% good reports or less than the same. Even in the absence of the documents produced before the Court, I am prepared to assume that if it were to be that the petitioner had only less than 70% good reports, it has to be still fundamental base of whether there had been a communication of any report less than good for any period before 10.03.1989 apart from the three reports which have been admitted by the petitioner to have been received all of which have been later re-written to his benefit and adverse reports removed. If there was any other issues for which there had been adverse entries or grading less than good, it would impact his promotion prospects. There is no reply by the State traversing this allegation in paras 8 and 9 but states that any grading less than good for any other years were also communication to the petitioner. This Court had an occasion to consider the effect of non-communication of entries which could be taken as adverse for consideration of promotion in the decision in Raghbir Singh, Sub Inspector (81/A) Police Lines, Karnal Vs. State of Haryana and others 2012 (1) SCT 205 where this Court has held that if a particular appraisal of grading have bearing on promotion prospect then any relative grading protecting eligibility for consideration must be taken as adverse and hence ought to be communicated. The Court has held that decision not to promote a person on basis of average reports would be taken as vitiated if they were not communicated. I have not any proof brought before me that such adverse entries or entries less than good had been communicated to him that could impact his promotion. The other point is merely incidental that the very same person who was found as fit for promotion for Sub Inspector''s post on 10.03.1989 could not be coming by a fresh disqualification. His right of consideration as an Inspector was considered when the petitioner pointed out to his junior as having been promoted from an earlier date. What apply for consideration for promotion to the post of SI ought to apply a fortiori for consideration for promotion as Inspector as well.

The prayer in the writ petition is founded legally and the petitioner is entitled to be treated as having been promoted as Inspector from the day when his junior Har Narain was promoted on 16.08.1988. If the petitioner is not in service any longer, the State shall work out the benefits due to him notionally for the post of Inspector from 16.08.1988 and the actual benefits shall be calculated and released to him for a period commencing from 38 months prior to the filing of the petition till the date of petition and till he retired with all corresponding benefits entitled to the post which this order directs. The monetary benefits shall be calculated and released to the petitioner within a period of 12 months from the date of receipt of copy of this order and delay thereon beyond the period mentioned shall also attract interest @9% from the date when the amount fell due to the actual date of payment.

The writ petition is allowed on the above terms.