CIVIL WRIT PETITION NO.3061 of 1996 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.3061 of 1996 DATE OF DECISION: NOVEMBER 16, 2010 Meshar Singh .....Petitioner VERSUS The State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH. PRESENT: Mr. H.S. Gill, Senior Advocate with Mr. R.K. Dhiman, Advocate, for the petitioner. Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner has challenged the action of the respondents denying him promotion. His grievance is that his case for promotion has not been fairly considered on the ground that uncommunicated adverse entries were taken into consideration to reject his claim for promotion. The petitioner was appointed as a Clerk in the office of Principal Government College of Education, Bhiwani on 23.8.1971. He belongs to Scheduled Caste and was selected through the Subordinate Services Selection Board, Haryana. He was appointed CIVIL WRIT PETITION NO.3061 of 1996 -2- against a vacancy reserved for Scheduled Caste. He was made to work in various colleges and no adverse remark was ever communicated him prior to 13.2.1995. A number of persons junior to the petitioner, however, were promoted from 1989 to 1994 from the post of Clerk to the post of Assistant while the claim of the petitioner was ignored. Reference is made to the seniority list of the Clerks, circulated in the year 1977, as it existed on 1.1.1976, where the name of the petitioner appeared at serial No.940. In another seniority list as on 1.1.1979, the name of the petitioner appeared at serial No.819. The promotion from the post of Clerk to that of Assistant is governed by the Rules known as Haryana Education Department, Sub-Offices Ministerial (Group C), Service Rules, 1983 (hereinafter referred to as 'the Rules'). The promotion is based on seniority-cum-merit. The petitioner was due for promotion with effect from the year 1989, when Sh. Rattan Lal and Sh. Udey Singh, belonging to Scheduled Caste, were promoted as Assistants. The names of these two persons appeared at serial Nos.903 and 904 respectively of the seniority list as of 1.1.1979. The petitioner being senior was required to be promoted, but he however was ignored on the ground that his service record was not good. The petitioner would aver that till then no adverse remarks had ever been communicated to him. He has also not been conveyed any remark, which could be said to be adverse. Subsequently, on 17.12.1989 other persons namely Sh. Siri Chand and Ram Kishan, who were at serial Nos.906 & 907 CIVIL WRIT PETITION NO.3061 of 1996 -3- of the seniority list and from the category of the petitioner, were promoted as Assistants, but the petitioner was again ignored. The petitioner, had accordingly, appeared before the Principal and pointed out that injustice was being done to him. While he was waiting for promotion, another order dated 4.2.1992 was passed promoting 8 more Scheduled Caste employees, who were juniors to the petitioner. The petitioner then filed a representation on 29.2.1992 against all the illegal promotions of those, who were juniors to him. Still, he did not receive any response. The petitioner followed it up by sending a reminder on 3.4.1992, which again did not receive any reply. The petitioner then issued another reminder on 3.11.1982. Instead, the respondents promoted 11 more persons juniors to the petitioner as Assistants on 18.8.1993. Details of these persons is mentioned in Annexure P-7. When the petitioner failed to get justice, he was forced to file writ petition No.10169 of 1994 asking for writ of mandamus and direction for his consideration for promotion to the post of Assistant from the date his juniors were promoted. The said writ petition was disposed of with the direction to the respondents to consider and decide the representation filed by the petitioner within a period of six months. Despite directions by this Court, the representation filed by the petitioner was not decided. Thereafter, the petitioner suddenly received a communication dated 13.2.1995, conveying him adverse remarks recorded in the ACRs for the years 1973-74, 1978- 79, 1982-83, 1989-90, in one go. On receipt of the adverse reports, CIVIL WRIT PETITION NO.3061 of 1996 -4- the petitioner submitted four different representations, copies of which are annexed with the writ petition as Annexures P-17 to P-20. The grievance of the petitioner is that without deciding his representations raised against the adverse reports, his claim for grant of promotion, was rejected on 21.11.1995. Copy of this order is annexed with the petition as Annexure P-21. The only reason conveyed to deny claim of the petitioner for promotion was that there were adverse remarks of integrity doubtful recorded in his ACRs for the years 1973-74, 1978-79, 1982-83, 1989-90. No separate orders rejecting representations filed by the petitioner against these adverse reports, however, was passed. The petitioner had then filed the present writ petition to impugn the action of the respondents in not deciding his representations and to challenge the decision of the respondents rejecting his claim for promotion to the post of Assistant. The respondents have filed reply. One of the preliminary objection raised is that the promotion was denied to the petitioner in the year 1989 and he has filed the writ petition after lapse of 5 years. Reference is also made to order passed in C.W.P. No. 10169 of 1994, whereby direction was issued to decide the representation filed by the petitioner. The fact that the name of the petitioner appeared at serial No.819 in the category of Scheduled Caste is not denied and so also the fact that persons upto seniority No. 1291 in this category were considered and promoted to the post of Assistant. The reasons to deny the promotion to the petitioner are that he was involved in one embezzlement case and therefore, disciplinary proceedings under Rule 7 of Punishment and Appeal CIVIL WRIT PETITION NO.3061 of 1996 -5- Rules of Haryana Civil Services Rules, 1987, were initiated and accordingly, stoppage of one annual increment without cumulative effect was ordered on 21.6.1992. It is also pointed out that the adverse remarks of 'integrity doubtful' in ACRs for the years noted above, were recorded and accordingly, it is urged that the petitioner was not found suitable for promotion to the post of Assistant. It is conceded that the representations filed by the petitioner against the adverse remarks recorded in ACRs was pending and was under consideration. The claim made in the writ petition is, thus, contested. Counsel for the parties, however, concede that during the pendency of the writ petition, the representation filed by the petitioner against the adverse remarks recorded in his ACRs, has been rejected. The writ petition, subsequently, was ordered to be admitted and has now come up for hearing. Mr. H.S. Gill, Senior counsel appearing for the petitioner, has made one fold submissions before me to impugn the order rejecting the claim of the petitioner for promotion. The counsel would submit that the adverse remarks recorded in the ACRs for the years 1973-74, 1978-79, 1982-83, 1989-90, could not have been taken into consideration to deny promotion to the petitioner as these adverse reports were never communicated to him till 1995. As a result, the petitioner was deprived of his right to represent against these remarks or otherwise to contest these reports. In support of the submission that uncommunicated adverse remarks can not be taken into consideration, the counsel has referred to Baidyanath Mahapatra Versus State of Orissa and another, 1989 (4) SLR 221 , CIVIL WRIT PETITION NO.3061 of 1996 -6- State of Hayrana Versus Prem Parkash Gupta, ADA Kurukshetra, 1997 (1) RSJ 742 and Tara Chand Versus State of Haryana and others, 2005 (3) RSJ 465. Mr. Nehra, on the other hand, would say that once the representations against the remarks have been rejected, no cause of grievance would remain with the petitioner to claim promotion on the ground that uncommunicated remarks had been taken into consideration for rejecting his claim for promotion. In Baidyanath Mahapatra's case (supra), the Hon'ble Supreme Court has observed that belated communication of the adverse remarks for a different period after several years may result into the denial of reasonable opportunity to a person to improve his performance. Accordingly, the Court has observed that such belated communication of adverse remarks is not proper. This was the case where adverse entries for the years 1969-70, 1970-71, 1972-73 and 1975-76 were communicated in one lot to the appellant therein in the year 1978. Noticing the purpose of communicating adverse entries to the Government servant, it is observed that this is to only inform him regarding his deficiency in work and conduct and to afford him an opportunity to improve his work and further, if entries are not justified then the communication affords him an opportunity to make a representation. The Court has, thus, observed that if the adverse remarks awarded to the Government servant are communicated late after several years, then the object of communicating entries is defeated. It is, therefore, noticed that it would be imperative that the adverse entries awarded to a CIVIL WRIT PETITION NO.3061 of 1996 -7- Government servant must be communicated to him within a reasonable period to afford him opportunity to improve his work and conduct and also to make representation if the entries are unjustified. Finding that the adverse entries in this case were communicated in one go after lapse of long time, it is held that belated communication of the adverse entries resulted in denial of reasonable opportunity to the person to improve his performance. It is also observed that inordinate delay in conveying the adverse remarks makes it impossible for the person to make an effective representation against the same. In Prem Parkash Gupta's case (supra), the adverse confidential reports were conveyed with the delay of 4,16, and 17 months and it is held that such adverse entries could not have been taken into consideration for depriving the person of the benefits of releasing of selection grade. It is also observed that the name of the person could not be rejected for consideration for promotion on the basis of stale adverse entries. In Tara Chand's case (supra), again the issue of considering uncommunicated adverse remarks arose. It is held that uncommunicated adverse remarks can not constitute a basis for denial of promotion. The action of the respondents for ignoring the petitioner therein relying on uncommunicated adverse remarks regarding doubtful integrity was held liable to be set aside. The relevant observations of this Court in this regard are as under:- “It is well settled that uncommunciated adverse remarks cannot constitute a basis for denial of promotion. The object of communicating adverse remarks is to grant an CIVIL WRIT PETITION NO.3061 of 1996 -8- opportunity to an employee to make a representation to the authority concerned for expunging of remarks by explaining those entries in the ACRs. The other object is to grant him an opportunity to improve and come up to the expected level of efficiency. The non-communication of adverse remarks results into depriving an employee of both the benefits. Therefore, the respondents have committed an illegality by taking into consideration the uncommunciated adverse remarks against the petitioner while considering his case for promotion to the post of Pumping Set Driver/Operator. The aforementioned legal position is supported by instructions dated 7.5.1974 issued by the Chief Secretary to Government of Haryana (Annexure P-6) which provides that the adverse remarks whenever recorded in the ACR should always be conveyed to the employee promptly. All concerned are required to ensure that adverse remarks are so conveyed and that no notice should be taken of adverse remarks if the same have not been communicated. In the present case, adverse remarks for the years 1984-85 and 1986-87 have not been conveyed and respondent No.2 while considering the case of the petitioner for promotion has taken those remarks into consideration. Therefore, the action of respondent No.2 for ignoring the petitioner for promotion on that basis is liable to be set aside.” On the basis of ratio of law as laid down in the CIVIL WRIT PETITION NO.3061 of 1996 -9- aforesaid judgments, it can be said that uncommunicted adverse remarks cannot legally be taken into consideration for denying the promotion to a person. The reasons for which such uncommunicated entries cannot be taken into consideration to deny promotion, are well noticed in the cases referred above. Uncommunicated adverse remarks lead to a situation where the person does not get an opportunity to represent against the same and thus, is deprived of fair chance for consideration for promotion. The delay in communication certainly would lead to further prejudice to the person concerned as with the passage of time, the person may loose the material to substantiate or to contest the adverse remarks recorded against him in the ACR, especially so when these relates to the integrity being doubtful. In the case in hand, the adverse remarks of 'integrity doubtful' recorded in the ACRs for the years 1973-74, 1978- 79, 1982-83, 1989-90, were communicated to the petitioner in the year 1995. Remarks, which are recorded in the year 1973-74, were conveyed after more than 20 years. Similarly other remarks were also conveyed after considerable lapse of time. The case of the petitioner by then has been considered for promotion and his juniors were promoted ignoring him. It is apparent that the adverse remarks were belatedly communicated to the petitioner, when he had approached this Court through a writ petition. It is, thus, clear that the petitioner was deprived of opportunity and right to represent against these adverse remarks recorded in the ACRs. Such adverse remarks, thus, could not have validly been taken into consideration CIVIL WRIT PETITION NO.3061 of 1996 -10- while considering the case of the petitioner between the years 1989- 1992. The said consideration for promotion in the case of the petitioner, thus, cannot be allowed to stand. The same is set aside. Subsequently, the petitioner has not been considered for promotion, though his representations against these adverse remarks were rejected, the case of the petitioner for promotion, thus, was not considered legally during the years 1989 to 1992. The order rejecting his claim for promotion is set aside. It is directed that the petitioner shall be considered afresh for promotion with effect from the date his juniors were promoted in the year 1989 and then in 1992 by ignoring the adverse entries recorded in the ACRs for the years 1973-74, 1978-79, 1982-83, 1989-90. If any consideration was due to the petitioner after 1995, then the adverse remarks may be open to be taken into consideration as by then the petitioner have had the opportunity to represent against the same and he has not made any grievance that he was put to prejudice because of this. The writ petition is, accordingly, disposed of in the above terms. November 16 , 2010 ( RANJIT SINGH ) monika JUDGE