IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 4084/2008 (OA(M) 177/97) Date of Decision : May 07, 2009 Sh. Baldev Singh Petitioner Versus State of Himachal Pradesh through its Secretary (Home), Shimla -2 and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. S.P. Parmar, Advocate, for the petitioner. For the respondents : Mr. R. K. Sharma, Sr. Addl. Advocate General with Mr. Ankush Dass Sood, Addl. Advocate General and Mr. R.P. Singh, Asstt. Advocate General for respondents. Sanjay Karol, J. (Oral) The petitioner has prayed for the following reliefs: “(i) To quash & set-aside the impugned order dated 15.3.1997 at Annexure ‘PD’; (ii) The applicant be considered for promotion as Inspector of Police from the date of his juniors were promoted i.e. 27.12.1986 and also, the seniority of the applicant be fixed at the appropriate stage; (iii) All the consequential reliefs in terms of arrears of salary which has been revised from time to time including 1 Whether reports of Local Papers may be allowed to see the judgment? 2 increments etc. with interest as admissible under rules, be released to the applicant; (iv) The pensionary benefits by enhancement of pay & allowances etc. be given & released to the applicant with interest.” I have heard the learned counsel for the parties and also perused the record. It is the admitted case of the parties that for the period 1.4.1981 to 2.9.1981 adverse entries in the Annual Confidential Report (ACR) of the petitioner were made by the assessing authority. The relevant portion of the adverse entries as contained in Annexure PE are reproduced as under: “Part-I 1. Honesty Questionable 4. Reputation for fair dealings with the public & accessibility to the public. Did not enjoy fair dealing reputation. 14. Reliability Not reliable 16. Defect if any, and whether these have been brought to the notice of the officer in any other communication. Unreliable General remarks by SP An officer with doubtful integrity. Invites complaints rather than delivering goods. Part-II 3. Ability to hold independent charge of P.S. Not fit. 5. Any outstanding merit or demerit. Unreliable 7. General resume of working during the period under report. Remained a problem officer wherever he was tried.” 3 These entries were required to be communicated to the petitioner but however the same could not be done. An attempt was made by the respondent to have it served upon him through letter dated 26.6.1982 which admittedly could not be delivered to him. The petitioner admittedly was in service and why the adverse entries could not be communicated to him at the place of his posting is neither evident nor explainable from the record. Hence it is evident that the petitioner was never served with the adverse entries. The petitioner’s claim for consideration for promotion to the post of Inspector of Police was declined and persons junior to him were considered and promoted w.e.f. 27.12.1986. This is an undisputed fact. Petitioner consequently filed a petition before the erstwhile Himachal Pradesh Administrative Tribunal and in terms of order dated 6.8.1996 petitioner’s application being OA No. 48/1992, titled Baldev Singh versus State of H.P. was disposed of with direction that the adverse entries be communicated to him and his representation be considered by the respondent authorities in accordance with law. The specific direction was given that “if the petitioner’s representation is accepted and adverse remarks are expunged the respondents would constitute a review departmental promotion committee to consider his case for promotion w.e.f. December, 1986.” 4 The ACRs were communicated to the petitioner and his representation was rejected by the authorities for the reason that no cause for expunging the adverse entries was made out by the petitioner. The order dated 15.3.1997 passed by the respondents is annexed as Annexure-PD. It is a settled position of law that if adverse entries are not communicated to the employee, the same shall not come in the way of an employee, at the time of consideration of his promotion to the next higher post. Adverse entries cannot be acted upon till opportunity for representation against the same has been afforded and considered. [Gurdial Singh Fijji versus State of Punjab and others, (1979) 2 SCC 368 ] In State Bank of India etc. versus Kashinath Kher and others, etc., AIR 1996 Supreme Court 1328, it has been so observed: “The object of writing confidential report is two fold, i.e. to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality and excellence and efficiency of public service. This Court in Delhi Transport Corporation’s case (AIR 1991 SC 101) pointed out pitfalls and insidious effects on service due to lack of objectives by the controlling officer. Confidential and character reports should, therefore, be written by superior officers higher above the cadres. The officer should show objectively, impartially and fair assessment without any prejudices whatsoever with highest sense of responsibility alone to inculcate devotion to duty, 5 honesty and integrity to improve excellence of the individual officer. Lest the officers get demoralized which would be deleterious to the efficacy and efficiency of public service. Therefore, they should be written by superior officer of high rank, who are such high rank officers is for the appellant to decide. The appellants have to prescribe the officer competent to write the confidentials. There should be another higher officer in rank above the officer who has written confidential report to review such report. The appointing authority or any equivalent officer would be competent to approve the confidential reports or character rolls. This procedure would be fair and reasonable. The reports thus written would form basis for consideration for promotion.” In the present case these entries were not communicated to him within a reasonable time. The entries pertain to the year 1980- 81. It was only when he knocked the doors of the Court that the entries were communicated to him. Unfortunately while deciding the representation, the respondent authorities did not take this fact into account. It did not even comply with the directions issued by the Tribunal that Review DPC be held for consideration of the petitioner’s case in accordance with law. The petitioner has since retired. Promotion, if any, shall effect his retiral benefits. In Badrinath versus Government of Tamil Nadu and others, (2000) 8 SCC 395, the Court held that an employee, under Article 16 of the Constitution of India has a right to be considered for promotion which is fundamental right. It is not mere consideration 6 for promotion that is important but the consideration must be fair according to established principles governing service jurisprudence. It is undisputed that except for the entries in question there are no other adverse entries in the petitioners service record. Under the facts and circumstances it is directed that the respondent shall immediately constitute a review departmental promotion committee and consider his case for promotion, in accordance with law without taking into account the adverse entries made in his ACRs for the period 1980-81. The promotion, if any, shall be w.e.f. December, 1986 the date when persons junior to the petitioner were promoted. In the event of the petitioner being promoted, respondent authority shall disburse the arrears of salary etc., in accordance with law, within a reasonable time. With the aforesaid observations the present petition is allowed. (Sanjay Karol), Judge. May 7, 2009 (PK)