IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5235 of 1991 (O&M) Date of decision:20.07.2011 Yash Paul ...Petitioner versus The State of Haryana and another ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Ram Kumar Malik, Senior Advocate, with Mr.Vijay Dalunga, Advocate, for the petitioner. Mr. O.P.Sharma, Additional Advocate General, Haryana. ---- K.Kannan, J. (Oral) 1. The point in controversy in this case is whether there was a justification for the State to deny the petitioner his claim for promotion on the basis of seniority. The rejection of his candidature for promotion was sought to be justified by the State on the ground that under the relevant rules, the employee must have 70% 'Good' reports for 10 years prior to the time when the post fell for consideration for promotion. At the time of arguments, the learned senior counsel appearing on behalf of the petitioner pointed out to the summary of the service record from 1978-79 to 1987-88 that contained specific endorsements of 'Good' or 'Very Good' for 5 years and for remaining 5 years, there was no entry for 1 year, the assessment as 'Average' for yet another year and 'below average' for 3 years. Since it emerged that he did not have more than 70% assessment as 'Good', it was argued that the downgrading from Civil Writ Petition No.5235 of 1991 (O&M) - 2 - 'Good' to 'Average' or to 'below average' for the years 1980-81, 1981-82, 1982-83 and 1983-84 had not been communicated to him at all and hence could not be acted upon. It was his contention that since the grading had an immediate ramification for eligibility for promotion, it ought to have been communicated immediately for him to make appropriate reconsideration or his objection to the manner of assessment. From the service record, it only showed that some adverse remarks had been conveyed in the year 1985-86 and there is no reference to the communication of the adverse remarks or the downgrading at any time during the relevant years. This aspect has also been specifically adverted to in the notice which the petitioner has given on 11.02.1991 prior to the filing of the writ petition. 2. At the previous hearing on 15.07.2011, Shri O.P.Sharma, Additional Advocate General, Haryana, took time to produce the relevant records to ascertain whether the adverse reports had been communicated to the petitioner or not. The case was adjourned for today and the learned counsel seeks further time. I have declined the request, for, the case is of the year 1991 and the point that is now urged on behalf of the petitioner is not new to be taken by surprise. On the other hand, it is most crucial point that is urged in the writ petition and submitted at the time of arguments. There is ample authority to the effect that the entries in ACRs themselves are not punishment but they are meant to improve the quality of work and if a person has been downgraded, the same is required to be communicated so that the effective remedial steps could be taken by the employee concerned. It has become all the more Civil Writ Petition No.5235 of 1991 (O&M) - 3 - important in cases where promotion to a higher post itself is dependent on certain benchmark kept, as in this case the requirement was that in an appraisal for 10 years, he should have obtained 'Good' grading at least in 70% of the reports. In the factual context, if the petitioner were to be taken out of reckoning only on account of the fact that he did not have 70% 'Good' reports for all the relevant period and such grading had not been communicated, then it should only be taken that the entries in ACRs could not have been used against the petitioner if it meant denial of promotion to him. 3. The learned senior counsel for the petitioner admits that the petitioner has already retired and the question of granting promotion to him cannot arise. I will not also allow for increased salary which the higher post could have carried especially when he did not officiate in the higher post. On the other hand, this shall be taken as entitling him to notional promotion with the scales of pay attached from the day when he was entitled to be considered for promotion, namely on 24.01.1991 and the higher scales to the promotion post would be carried out through till the date of his retirement for the purpose of computing terminal benefits only. The same shall be worked out within a period of 12 weeks from the date of receipt of copy of this order and be paid to the petitioner forthwith. 4. The writ petition is allowed as above. (K. KANNAN) JUDGE 20.07.2011 sanjeev