R. S. A. No. 1551 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1551 of 2010 Date of Decision : February 01, 2011 State of Punjab and others .... Appellants Vs. Amarjit Kaur Bhullar .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. V. K. Jindal, Addl. A. G., Punjab for the appellants. Mr. A. K. Walia, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Defendants State of Punjab and others, having remained unsuccessful in both the courts below, have filed the instant second appeal. Respondent-plaintiff Amarjit Kaur Bhullar filed suit against the appellants/defendants. It is undisputed that plaintiff was working as Steno- typist Grade-I w.e.f. 01.04.1990 under the defendants. Under Assured Career Progression Scheme (in short – ACP Scheme), she became entitled to be considered for proficiency step-up after service of eight years i.e. R. S. A. No. 1551 of 2010 2 w.e.f. 01.04.1998. However, the defendants, vide order dated 23.02.2004, denied the said benefit to the plaintiff. In the suit, plaintiff challenged said action of defendants alleging that average ACRs taken into consideration to deny the aforesaid benefit to the plaintiff were never conveyed to her and therefore, the same could not be taken into consideration. It was also pleaded that no show cause notice was ever issued to her regarding her work and conduct. It was also alleged that average ACRs cannot be treated as adverse. Accordingly, the plaintiff sought declaration that she is entitled to proficiency step-up under ACP Scheme w.e.f. 01.04.1998 and order dated 23.02.2004 passed by defendant no.3 denying the said benefit to the plaintiff is illegal and null and void. The plaintiff sought mandatory injunction directing the defendants to grant the said benefit to the plaintiff w.e.f. 01.04.1998. The defendants, while admitting the factual position, controverted the claim of the plaintiff. It was pleaded that under Government instructions dated 10.01.2000, the plaintiff could become entitled to proficiency step-up if her 50% record was `Good' or above `Average' and at least two, of the last three reports, were also `Good', but the plaintiff did not fulfill the said criteria and she was, therefore, rightly denied benefit of proficiency step-up. It was also pleaded that `Average' ACRs, being not adverse, are not required to be communicated. However, R. S. A. No. 1551 of 2010 3 the plaintiff has since been granted benefit of ACP Scheme w.e.f. 01.04.2004, when she fulfilled the criteria for the same. Various other pleas were also raised. Learned Civil Judge (Junior Division), Patiala, vide judgment and decree dated 26.07.2008, decreed the plaintiff's suit holding that defendants will pay due heed to the case of the plaintiff regarding impugned order dated 23.02.2004 passed against her and will re-consider the case of the plaintiff for giving her benefit of proficiency step-up, as claimed. First appeal preferred by the defendants has been dismissed by learned Additional District Judge, Fast Track Court (Ad hoc), Patiala, vide judgment and decree dated 09.11.2009. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that the plaintiff did not fulfill the criteria for grant of proficiency step-up under ACP Scheme w.e.f. 01.04.1998 as her 50% record was not `Good' and out of her last three ACRs, two ACRs were not `Good'. Relying on a judgment of this Court in the case of R. D. Goyal vs. Haryana State Electricity Board, Panchkula reported as 1994 (3) S. C. T. 607, it was also contended that `Average' ACR is not required to be communicated. R. S. A. No. 1551 of 2010 4 On the other hand, learned counsel for plaintiff-respondent contended that even `Good' ACR is required to be communicated, as per authoritative pronouncement of Hon'ble Apex Court in the case of Dev Dutt vs. Union of India and others reported as 2008 (3) S. C. T. 429 and it is admitted position that aforesaid `Average'ACRs of the plaintiff, which were taken into consideration to deny her benefit of ACP Scheme, were not communicated to the plaintiff and therefore, the same could not be taken into consideration and consequently, there is no infirmity in the judgments of the courts below. I have carefully considered the rival contentions. At the outset, it has to be noticed judgment of the lower appellate court is very sketchy and almost non-speaking. In view of judgment of Hon'ble Supreme Court in the case of Dev Dutt (supra), judgment of this Court in the case of R. D. Goyal (supra) cannot prevail. Consequently, not only `Average' ACRs, but also `Good' ACRs were required to be communicated. However, the ACRs, particularly the `Average' ACRs, were not conveyed to the plaintiff. The question, that however arises for determination, is as to what course of action should be followed in the aforesaid circumstances. Answer to this question is also rendered by judgment of Hon'ble Supreme Court in the case of Dev Dutt (supra). In that case, the Hon'ble Supreme Court directed that R. S. A. No. 1551 of 2010 5 the `Good' entry be communicated to the appellant, and thereupon, the appellant may make representation, if he so chooses, against the said entry and the said representation will be decided and if the entry is upgraded, the appellant shall be considered for promotion retrospectively and necessary benefit, if any, shall be given to him. Consequently, in the instant case also, the same course of action can be followed directing the appellants to communicate all the relevant ACRs to the plaintiff, who shall be at liberty to make representation against the same and if any such representation is made, the same shall be decided and consequent course of action shall be taken. Learned counsel for the respondent, however, contended that at this late stage, communication of `Average' ACRs to the plaintiff would result in prejudice to her. The contention cannot be accepted. In the case of Dev Dutt (supra), Departmental Promotion Committee, in its meeting held on 16.12.1994, held the appellant Dev Dutt to be not eligible for promotion and the Hon'ble Supreme Court, vide judgment dated 12.05.2008, adopted the aforesaid course of action requiring communication of the `Good' entry to the appellant and further follow-up action. In the instant case, the plaintiff-respondent is on better footing as she was denied benefit of proficiency step-up vide impugned order dated 23.02.2004 only i.e. less than seven years ago. R. S. A. No. 1551 of 2010 6 For the reasons aforesaid, I find that following substantial question of law arises for determination in this second appeal :- “Whether judgments of the courts below directing the defendants to re-consider the case of the plaintiff for giving her benefit of proficiency step-up, as claimed by her, suffer from illegality and perversity and are unsustainable in law ?” In view of the discussion aforesaid, it is held that aforesaid direction given by the courts below is illegal and unsustainable and the same has to be modified, as per course of action mentioned herein before. As a necessary upshot of the foregoing, the instant second appeal is allowed. Judgments and decrees of the courts below are set aside and the suit of the plaintiff-respondent is decreed to the extent that the defendants shall communicate all the relevant ACRs i.e. 1990-91 onwards till 2003-04 within three months from the date of receipt of certified copy of this judgment and thereupon, the plaintiff shall be at liberty to make representation, if any, against the said ACRs within two months of the communication thereof to her and the said representation shall be decided by the defendants within three months of the making thereof and the case of the plaintiff for grant of proficiency step-up shall be re-considered in R. S. A. No. 1551 of 2010 7 accordance with result of the said representation within further three months and consequential benefits, if any accruing to the plaintiff, shall be paid to her along with interest @ 8% per month within further period of three months. The appeal stands disposed of accordingly. February 01, 2011 ( L. N. MITTAL ) monika JUDGE