Civil Writ Petition No. 9545 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 9545 of 2010 Date of decision:-01.09.2011 Sarabjot Kaur ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. H.S. Dhindsa, Advocate for the petitioner. Mr. Puneet Gupta, Addl.A.G. Punjab. RITU BAHRI J. Petitioner is seeking writ in the nature of certiorari for quashing of order dated 29.5.2009 (Annexure P-5) and to consider the name of the petitioner for the post of Excise and Taxation Officer on the basis of merit and seniority. Husband of the petitioner was PCMS doctor with the Punjab Government and served for 17 years including 5 years on adhoc basis. He expired on 31.5.2004. The petitioner has been sanctioned family pension on the basis of last pay drawn. The petitioner's husband has not been given the benefit after rendering four years and nine years of regular service till date of his death. Vide impugned order petitioner had approached this Court vide Writ Petition No.1655 of 2009 titled 'Sarabjot Kaur versus State of Punjab' in which a direction was given to the respondents to decide the legal notice served by the petitioner. The impugned order rejecting the claim of the petitioner's husband had been passed simply on the ground that as per the instructions 50% ACRs of the doctor should be good and the last two reports out of three reports should Civil Writ Petition No. 9545 of 2010 -2- be good as per Government instructions dated 17.4.2000. The ACRs of the doctor are as under :- YEAR REMARKS YEARS REMARKS 1992-93 N.R.C. 1998-99 NRC 1993-94 Average 1999-2000 NRC 1994-95 Average 2000-2001 Good 1995-96 NRC 2001-2002 NRC 1996-97 NRC 2002-2003 NRC 1997-98 NRC 2003-2004 NRC A perusal of ACRs shows that after completion of 4 years regular service on 26.6.1996 he was to be given placement w.e.f. 1.1.1997. He did not qualify for the placement as per ACRs for grant of ACP scale after four years of regular service on account of the fact that ACRs not recorded by the concerned officer. In the reply, filed by respondent Nos.1 to 3 dated 10.6.2011. It is submitted that out of 12 ACRs right from 1992-93 are N.R.C. (not recorded), two are average and one is good. As per policy of the Department, the benefit of ACR is granted to whom those Government employees whose 50% record is good or better than that out of last three reports, two should be good or better than that. The petitioner further required norms hence he was not granted the benefit under the Assusred Career Progression Scheme. The ACRs were not recorded by different officers and a recommendation has been made by the Director, Health and Family Welfare to take appropriate action against Dr. Kiranjit Kumar and the Senior Superintendent of Police, Jagraon, who had failed to discharge their official duties with regard to ACRs. I have heard learned counsel for the parties and have gone through the case file carefully. Dr. Kanwaljit Singh, Medical Officer has served the State of Punjab as PCMS doctor from 1987. He was regularized on 26.6.1992 thereafter he died Civil Writ Petition No. 9545 of 2010 -3- on 3.5.2004. He served for 17 years without any non-compliance or adverse remarks in his ACRs. The widow of Dr. Kanwaljit Singh had to approach this Court on two occasions. The second time the widow of Dr. Kanwaljit Singh had approached this Court for the legitimate right of her late husband was denied due to callous and irresponsible behaviour of the superiors. The details of 12 ACRs of the husband of petitioner are as under :- 1992-93 N.R.C. 1993-94 Average 1994-95 Average 1995-96 N.R.C. 1996-97 N.R.C. 1997-98 N.R.C. 1998-99 N.R.C. 1999-2000 N.R.C. 2001-2002 N.R.C. 2002-2003 N.R.C. 2003-2004 N.R.C. Dr. Kanwaljit Singh had joined in the year 1987 and thereafter his services were regularized in 1992. From the very first year of service the ACR has not been recorded. Thereafter for two years 1993-94 and 1994-95 the ACRs were recorded to be average. Thereafter from 2001-2004 his superiors have though it appropriate not to assess his work. One officer in 1999-2000 has troubled in assessing his work. Thereafter next three years before he died the ACRs have not been recorded. On account of non-recording of these ACRs the claim for grant of ACT has been rejected on the ground that he did not have 50% good record. In the first instance it was due in 1996 and in second instance after his claim for ACR has been rejected on the ground that he did not fulfil the criteria as per Government instructions dated 17.4.2000. As per these instructions the employee is to have 50% good ACRs and in the last three reports two should be good. The petitioner has referred to the ACRs recorded Annexure P-6A to P-6D which goes to prove that the SSP Jagraon has admitted Civil Writ Petition No. 9545 of 2010 -4- that the ACRs for the year 1995-96, 1996-97, 1997-98 and 1998-99 were not available in the office. However, nothing adverse was reported to have come to his knowledge. This has proved that the ACRs were recorded but have misplaced. Admittedly, accepting their mistake recommendation has been made by the Director, Health and Family Welfare on 22.2.2011 to the Principal Secretary, Punjab to take appropriate action against Dr. Kiranjit Singh who was to record the ACRs of the year 1992-93 and subsequently for the period 1995-96 and 2003-2004 was to be recorded by the SSP Jagraon. The Full Bench of this Court in Kamal Kumar Gupta versus State of Haryana and others 1990(2) PLR 497 had an occasion to examine the effect of non-recording of ACRs and has observed that a candidate cannot be put to disadvantage if his superiors do not record the ACRs for the specific period and held as under :- “Annual confidential reports are never earned by the candidates and in fact they are recorded by superior officers on their own. If for any reason the superior officers were unable or failed to record the same, it was no fault of the candidate and he cannot be put to a disadvantage on that account. Even otherwise in the interest of equality of opportunity guaranteed by Article 16 of the Constitution of India, the Commission was required to spread annual confidential reports of all the candidates over 10 years pro- rata on the basis of available reports i.e., for the same period or it should have worked out average in case of each candidate and thereafter evaluated in terms of marks. The Commission having not done so, did not provide equal opportunity to all the candidates required to be considered by it. First of all mere non-availability of annual confidential report cannot possibly be taken to be conclusive proof of its non-recording. Again, even if annual confidential report is not recorded if a person worked in the service for which it was not recorded, it cannot be said that he had not Civil Writ Petition No. 9545 of 2010 -5- experienced in line or service for that period. Evaluation under the head experience in line therefore should have been made on the basis of length of service put in and not the length of period for which annual confidential reports were available. In these respects, the criteria laid out by the Commission thus was not fairly implemented resulting in discrimination. This for obvious reasons had vitiated the selection which deserves to be quashed on that score as well.” After going through the facts of the present case one thing is clear that in the entire service career of Dr. Kanwaljit Singh there is no adverse remarks in his ACR. He has served for the State of Punjab for 17 years. As per Annexures P-6/A to P-6/D the SSP Jagraon has given special report that the ACRs are not available and the work and conduct of the official was satisfactory and nothing adverse was against him. In spite of these observations, the benefit of ACP has been denied on the technical ground that he does not have 50% good ACRs as contemplated vide Government instructions dated 17.4.2000 and instructions dated 18.6.2001. As per the special report these ACRs can be treated as satisfactory. Non recording of the ACRs cannot be the reason of disadvantage to Dr. Kanwaljit Singh. Order dated 29.5.2009 (Annexure P-5) is quashed and direction is given to the respondents to treat the non-recorded ACRs as good and grant him the benefit of ACP as per Government instructions dated 17.4.2000 and 18.6.2001 and pass an appropriate order re-fixing his salary and thereafter re-fixing family pension within a period of four months from the date of receipt of certified copy of this order. Petitioner is held entitle to a cost of Rs.20,000/-. The writ petition is allowed. 01.09.2011 ( RITU BAHRI ) Vijay Asija JUDGE