IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 4102 of 2008. Decided on: 24.11.2010. __________________________________________________ Dr. B.S. Sidhu … Petitioner. Versus Chief Secy. to the Govt. of H.P. and ors. ... Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Onkar Jairath, Advocate. For respondents No. 1 & 2 : Mr. Anil Jaswal, Dy.A.G. ___________________________________________________________ Justice V.K. Sharma, Judge. (Oral). The petitioner Dr. B.S. Sidhu was at the relevant time working as Zonal Joint Director, Health Services, H.P., Mandi Zone at Mandi, H.P. According to him, private respondent No.3 Dr. K.S. Sohal was junior to him and was working as Assistant Director at that time. The case of the petitioner is that at the time of promotion to the post of Director, Health Services, he was ignored solely on the ground that his ACR for the year 1994-95 contained adverse remarks to the effect that he is not at all reliable and is also slow in working and instead private respondent No.3 was promoted as such. 2. The petition has been filed on the following substantive prayers: “7 (i). To quash and set aside impugned adverse remarks in the ACR for the year 1994-95 of the applicant, at Annexure PA written subjectively with a view to deprive the applicant of his well deserved 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 promotion as Director Health Services, Himachal Pradesh; (ii). To quash and set aside the promotion of respondent No.3 as Director Health Services, Himachal Pradesh and issue directions to respondents No. 1 & 2 to promote the applicant as Director Health Services in accordance with law; (iii). To issue directions to respondents No. 1 and 2 to ignore the impugned ACR of the applicant for the year 1994-95 while considering the case of the applicant for promotion de-novo and give weightage for the service rendered by him as Joint Director Health Services w.e.f. June, 1995 which involves duties of higher responsibilities as compared to Deputy Director Health Services; (iv). To issue further directions to respondents No. 1 & 2 to compare ACRs of equally situated eligible officers for the years they are available in respect of the applicant. The applicant apprehends that some of his ACRs in which he is rated ‘Very Good’ are missing. The Departmental Promotion Committee did not care to scrutinize the ACRs of the other eligible officers for the same years as that of the applicant and that on that basis respondent No.3 had an edge over the applicant. The applicant thus, got a raw deal i.e. on the basis of his missing ACRs and subjectively written ACRs for the year 1994-95. The applicant deserves promotion from the date the post was available or w.e.f. 31.5.1997 when a person junior to the applicant holding a lower post was promoted; and (v). To grant other service benefits which should normally flow on promotion as Director Health Services w.e.f. the date the post of Director Health Services fell vacant or respondent No.3 was promoted by ignoring the applicant.” 3 3. Respondents No. 1 and 2 have taken the following stand vide para 3 (iv) of the reply:- “In reply to this para it is stated that the post of Director of Health Services is a selection post and is required to be filled up on the basis of merit cum seniority from amongst the candidates of feeder categories by promotion. This being so, the merit of the eligible candidates was determined by making an objective assessment of the ACRs. In accordance with the prevailing instructions on the subject of assessment of candidates for selection posts the candidate ranked higher in merit has to be preferred over the others. The applicant was lower in merit in comparison to respondent No.3 who was graded/assessed by the Departmental Promotion Committee higher and was therefore recommended to be promoted to the post of Director of Health Services in accordance with the Rules and laid procedure. Thus there is no ambiguity in the matter of selection to the post of Director Health Services recommended by the Departmental Promotion Committee for appointment of respondent No. 3 as such. So far as the question of promoting the applicant to the post of Joint Director of Health is concerned, it is stated that the applicant has wrongly averred in this para and the position given by him is quite contrary to the factual position. As a matter of fact at the given point of time the ACRs of the applicant were not available beyond the year 1989 and therefore, keeping in view the instructions on the subject matter, the available ACRs of the previous years viz. 1984-85, 1986-87, 1987-88, 1988-89 and 1989-90 were taken into account for considering him for promotion to the post of Joint Director Health Services. On the basis of available record he was assessed and found fit for promotion to the post of Joint Director by the DPC and thus he was 4 promoted accordingly. The Recruitment & Promotion Rules for the post of Director of Health Services provide as under:- ‘By promotion from amongst the Joint Directors with 2 years service as such on the basis of merit cum seniority, failing which from amongst the Joint Director/Deputy Directors/State Programme Officers having at least five years combined defined service as Joint Director/ Deputy Director/State Programme Officer/Sr. Medical Supdt./ Medical Supdt./ Principal (Trg.) Asstt. Directors/CMOs on the basis of merit cum seniority.’ Keeping in view the aforesaid provisions of the rules it is wrong on the part of the applicant to assume that promotion to the ppost of Director of Health Services has been made in violation of R & P Rules. The applicant has failed to appreciate the exact import of the Recruitment and Promotion Rules so much so that he could not specify as to where and how Recruitment and Promotion Rules stand violated. This being so the contentions of this para are ill- conceived, totally wrong and therefore, not admitted.” 4. The reply filed on behalf of respondents No. 1 & 2 has also been adopted by private respondent No.3. 5. The record reveals that the above adverse remarks were conveyed to the petitioner vide communication dated 14.5.1996, Annexure PA against which he made a representation, but without success. However, it shall be pertinent to observe at this stage that lateron the above remarks were expunged vide order dated 13.11.1998, a copy of which has been produced by the learned counsel for the petitioner during the course of hearing 5 which is taken on record. DPC is stated to have been held in April/May, 1997 and private respondent No.3 was promoted vide notification dated 31.5.1997, Annexure PB. This narration of factual events would assume significance when the aforesaid adverse remarks which relate to the reporting year 1994-95 are considered in the light of the fact that though the same ought to have been conveyed within a reasonable period thereafter, which ordinarily is by 30th September of each year. However, in this case these were communicated to the petitioner only on 14.5.1996 vide letter Annexure PA. It has already been noticed that DPC thereafter was held in April/May, 1997. Still further the aforesaid adverse remarks which on the face of it are of highly derogatory nature, were expunged as late as 13.11.1998 by which time the damage had already been done and further more the petitioner had also retired from Government service on and with effect from 31.5.1998. 6. In view of the above, it appears that the petitioner was ignored for promotion to the post of Director, Health Services, the top-most post in the Department solely on the basis of above adverse remarks contained in his ACR for the year 1994-95 conveyed to him vide letter dated 14.5.1996, Annexure PA, which were lateron expunged. Thus, I am more than satisfied that the petitioner is entitled for relief prayed for. Accordingly, the writ petition is allowed with a direction to respondent No.1 to hold a review DPC for consideration of the case of the petitioner for notional promotion to the post of Director, Health Services, H.P. from 1.6.1997 by taking recourse to create supernumerary post 6 within three months from today and pay the consequential benefits, if any, to him within next three months. 7. The petition stands disposed of in the above terms, so also the pending application(s), if any. Copy dasti. (V.K. Sharma) Judge. November 24, 2010. (cr)