CM Nos.15356-57 of 2011 in/and ::1:: CWP No.173 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM Nos.15356-57 of 2011 in/and CWP No.173 of 2011 Date of decision: 21.11.2011 Gopal Singh .. Petitioner Versus Union of India and others .. Respondents CORAM: HON'BLE MR.JUSTICE MAHESH GROVER a). Whether Reporters of Local Papers may be allowed to see the judgment ? b). To be referred to the Reporters or not ? c). Whether the judgment should be reported in the Digest ? Present:- Mr.Rajeev Anand, Advocate, for the petitioner. Mr.Sanjay Joshi, Senior Panel Counsel, for respondents No. 1 to 4. **** MAHESH GROVER J. (ORAL) CM No.15356 of 2011 Allowed as prayed for. CM No.15357 of 2011 Allowed as prayed for. Reply on behalf of respondents No.1 to 4 filed along with the application is taken on record. CWP No.173 of 2011 The short point involved in this petition is whether CM Nos.15356-57 of 2011 in/and ::2:: CWP No.173 of 2011 an uncommunicated adverse remark can be taken into consideration against an incumbent who is on the verge of promotion to the next higher post. The petitioner who was enrolled by the respondents as a Motor-Mechanic in May, 1986 and has earned his promotions periodically till the stage of Inspector in May, 2007. He was promoted to the next higher post after having worked for three years as an Inspector, the next promotional post was that of Assistant Commandant and his junior was promoted over and above him and the reason subsequently assigned to the petitioner for his supersession was that he had earned adverse remarks for the period from 08th July, 2006 till 31st December, 2006 which was communicated to the petitioner on 12th March, 2010. Separate representations filed against the said ACRs have been rejected by virtue of Annexure P-7 on 3rd December, 2010. Learned counsel for the petitioner makes two-fold grievance of the action of the respondents: (i) that the adverse remarks for the period 08th July, 2006 to 31st December, 2006 which were communicated to the petitioner for the first time on 12th March, 2010 could not have been taken against him at the time of consideration of his case for promotion to the post of Assistant Commandant on 25th February, 2010 when the case for promotion was effectively decided to supersede the petitioner by his juniors; (ii) the representations have been rejected CM Nos.15356-57 of 2011 in/and ::3:: CWP No.173 of 2011 without assigning any reason. It is contended before this Court that apart from the fact that the procedure adopted by the respondents in taking into consideration uncommunicated adverse remarks against the petitioner at the time of promotion, being violative of the instructions of the respondents, has also resulted in serious prejudice to him as the principles of natural justice have been violated. The respondents have not denied the facts, but have stated that since his representations against the adverse remarks have been rejected, the petitioner cannot make a grievance of the fact that these remarks have been taken against him to deny the promotion. On due consideration of the matter, I am of the opinion that the petitioner has been seriously prejudiced on account of the fact that uncommunicated adverse entries against him have been taken into consideration to deny him the promotion. The relevant instructions of the respondents as contained in their hand-book are as under:- “15. 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 can exercise the right afforded to make a representation against the same. The competent authority is required to consider the representation on merits and pass a CM Nos.15356-57 of 2011 in/and ::4:: CWP No.173 of 2011 reasoned order and only when it can be acted upon”. A perusal of the aforesaid makes it evident that the adverse remarks which were not communicated to the petitioner ought not to have been considered by the respondents to deny promotion to the petitioner for the simple reason that principles of natural justice envisage that material which is adverse to a person, cannot be taken into consideration unless such a person has been given an opportunity to refute such material. There being no justification offered by the respondents to resort to such a process and for the reasons which have been stated above, I am of the opinion that confidential report of a person which is an important material and forms the basis of a service record of an incumbent if, found not to be exemplar, then such material cannot be taken into consideration without confronting the incumbent with it. For the aforesaid reasons, the petition is allowed and the impugned communication dated 12.03.2010 and order dated 03.12.2010 are set aside and the respondents are directed to reconsider the case of the petitioner afresh. In case, the petitioner is found eligible for promotion, the necessary relief be granted to him in accordance with law. The costs which were imposed vide order dated 25th July, 2011 be deposited in the Lawyers' Welfare Fund. (MAHESH GROVER) November 21, 2011 JUDGE Sukhpreet