IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.2147 of 1991 (O&M) Date of decision:25.08.2011 Raghbir Singh, Sub-Inspector (81/A), Police Lines, Karnal. ...Petitioner versus The State of Haryana, through the Director General of Police, Haryana, Chandigarh, and others. ....Respondents II. Civil Writ Petition No.2378 of 1991 (O&M) Piara Ram, S.I. No.A/71, Police Lines, Karnal. ...Petitioner versus The State of Haryana, through the Secretary to Government Haryana, Department of Home, Chandigarh, and others. ....Respondents III. Civil Writ Petition No.1343 of 1992 (O&M) Satnam Dass, Sub Inspector, A/19, Police Lines, Jagadhri (Haryana). ...Petitioner versus State of Haryana, through the Director General of Police, Haryana, Chandigarh, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Vijay Pal, Advocate, for Mr. Girish Agnihotri, Senior, Advocate, for the petitioner. Mr. Satbir Singh Goripuria, DAG, Haryana. ---- Civil Writ Petition No.2147 of 1991 (O&M) - 2 - 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. In all the above writ petitions, the issue involved is the legality of denial of promotion to the respective petitioners from the post of Sub Inspector to Inspector. The benchmark for promotion was stated to be that, in the last 10 years before the relevant period, the employee must have secured 70% ‘Good’ reports. In another way of saying out of 10 years, in 7 years, the employee must have been appraised as ‘Good’ and above. In all the cases, the contention by the Administration was that the petitioners had only ‘Average’ assessments for 7 various years and they did not have 70% ‘Good’ reports. 2. The contention in the writ petitions by each one of the petitioners is that in respect of the issues where assessments of ‘Average’ have been made, they were never communicated except to the petitioner in CWP No.2378 of 1991, where the petitioner had made representation against the assessment made and for reappraisal. In that case also there was no response from the State evidencing any act of reappraisal on the basis of such representation. As it turns out if the favourable consideration for promotion was not undertaken by the fact that the candidates had not secured 70% ‘Good’ reports, it could be sustained only if for the years when the employee did not have ‘Good’ or above, the decision should have been communicated, so that the employee had an opportunity to make a representation against such assessment. The Civil Writ Petition No.2147 of 1991 (O&M) - 3 - learned counsel for the petitioners refers to a Division Bench ruling in K.K.Vaid Versus State of Haryana-1990(1) SLR 1, that dealt with the case of compulsory retirement of a Government servant on the ground that he did not have 70% and above of ‘Good’ reports. They were dealing with the case where for all those relevant years, the assessment had been ‘Average’ and they were not communicated to the Government servant. The Division Bench held that an ‘Average’ entry could not be treated as adverse and compulsory retirement prematurely on the basis of ‘Average’ entry which was un-communicated, was bad. If communicated and representation had been made, but no decision had been taken, the decision to terminate the service would be legally suspect. A direct issue as obtaining before this Court was considered by this Court in Gurdial Singh Versus State of Haryana-2002(1) SCT 605. The Court held that if ‘Average’ reports were considered against an employee for denial of promotion, it should only be taken that they were adverse and were required to be communicated. When such remarks were not communicated, promotion could not be denied. 3. This fits with a logic that if a particular appraisal and a grading have a bearing on promotion prospects, then any relative grading which denies eligibility for consideration must be taken as adverse and hence, ought to be communicated. An ‘Average’ entry normally may not be taken as adverse, but in a situation where a mere ‘Average’ entry would be taken as not fulfilling a benchmark for promotion, it has an immediate ramification for promotion and hence, no such appraisal could be taken into reckoning if it is not communicated. Consequently, the Civil Writ Petition No.2147 of 1991 (O&M) - 4 - decision not to promote the petitioners on the basis of ‘Average’ reports is vitiated by the fact that they were not communicated and hence, the petitioners were bound to be favourably considered for promotion from the date when the respective juniors were promoted. 4. It is learnt that all the petitioners have retired from service. The petitioners would, therefore, be treated as notionally promoted to the posts when their respective juniors were promoted and the terminal benefits shall be calculated on such a basis. Since the case was instituted immediately after denial of promotion, I find no reason to deny to them the monetary benefits that would accrue to them in the respective promotion post for the entire period i.e. from the dates when promotions were due till the respective dates of retirement. 5. All the writ petitions are allowed and the respondents are directed to make a proper reckoning of the monetary entitlements and grant the same to them within a period of 12 weeks. If the amounts are not paid as directed, they shall also attract interest at 7.5% from today. (K. KANNAN) JUDGE 25.08.2011 sanjeev