C.W.P. No.469 of 1996 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. C.W.P. No.469 of 1996 (O&M) DATE OF DECISION : 7.11.2011 L.D.Gupta PETITIONER VERSUS The Life Insurance Corpn. of India and others RESPONDENTS CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri S.S.Godara with Ms.Meena Bansal, Advocates for the petitioners. Shri B.R.Mahajan, Advocate for the respondents. MAHESH GROVER, J. In the instant petition the petitioner makes grievance that the order dated 20.11.1995 Annexure P-7 be quashed, as he has been denied promotion unfairly, which he was entitled to. The petitioner who was appointed as a Field Officer with the respondent/Corporation in the year 1969, which post was subsequently re-designated as Development Officer, was on probation when on 4.12.1962 he was charge-sheeted for misconduct. After following the procedure, his services were terminated on 29.1.1963. The petitioner then filed a civil suit challenging the order of termination which was dismissed on 31.8.1966. An appeal followed in which he C.W.P. No.469 of 1996 -2- was successful and the suit was decreed on 9.10.1967. The respondents filed R.S.A. No.48 of 1968 in which the judgment of the First Appellate Court was upheld prompting the Corporation to go in S.L.P. before the Hon'ble Supreme Court which affirmed the order of the High Court in R.S.A. and while disposing of the appeal, the following observations were made :- “We see no infirmity in the judgment of the High Court, we agree with the reasoning and the conclusions reached therein. We therefore, upheld the finding of the trial Court that since no enquiry was held the termination of services of the respondent was not justified and as such he is entitled to be reinstated into service. We are, however, of the view that in the facts and circumstances of this case, the interest of justice would be met if the respondent is allowed 60% of the back wages with effect from February 1, 1963. We order accordingly. The learned counsel for the appellant states that the respondent may report for duty within four weeks from today. We further direct the appellant-Corporation to pay back wages as directed by us within three months from today. The appeal is disposed of in the above terms with costs. We quantify the costs as Rs.10,000/-.” The petitioner was then reinstated into service in the year 1993. The grievance of the petitioner now stems from the fact that during this period when he remained out of service, he was entitled to be considered for promotion as the final word regarding his termination was approved in his favour and he was awarded reinstatement along with continuity of service to limited 60% of the back wages from February 1,1963. The grievance against Annexure P-7 is C.W.P. No.469 of 1996 -3- that he has been unfairly denied the promotion by not considering his record. The respondents justify their stand as reflected in Annexure P-7 to contend that since the petitioner had never worked, there was no record available with them or earned by the petitioner on the basis of which they could evaluate his performance particularly so, when the rule prescribes merit as the paramount consideration to be supported by seniority. Rule 7 sub-clause (3) which governs the consideration of promotion, is extracted here below :- “(3) Promotion shall be based on merit, suitability of the candidate for a particular post and seniority, merit and suitability may be judged by confidential reports and/ or interviews and/or examinations.” Undeniably, the rule prescribes merit and suitability of the candidate with seniority as a supportive factor. It is further prescribed that merit and suitability may be judged by confidential reports and/or interviews and/or examinations. The petitioner contends that none of the alternate modes to assess his merit has been adopted by the respondents. On due consideration of the matter and upon appraisal of Annexure P-7, I find that the respondents were handicapped in assessing the merit of the petitioner on account of his having remained beyond service for a period of 30 years. In this eventuality, his assessment for merit and suitability in 1995 was seriously fettered on account of the petitioner not having worked with the respondents. Even if one were to travel a bit further to contend that the respondents ought to have explored his suitability by resorting to interview or examination, it becomes insignificant in view of what has been stated in the counter-affidavit of Shri I.S.Mehangi, Manager Legal who has stated that the C.W.P. No.469 of 1996 -4- petitioner upon his reinstatement in service on 30.3.1993 did not procure any business for the Corporation during the year 1993-94. His performance for the year ending 31.3.1994 was conveyed to him vide letter 4.8.1994, to which no reply was submitted by the petitioner and as such 60% cut was imposed on his conveyance allowance and one decrement in his pay was made as per provisions of law. It was further stated that performance of the petitioner was again nil for the period ending 31.3.1995 as he had not brought business of even a single penny in the entire period, even though he was drawing regular salary. This was conveyed to him vide letter dated 27.4.1995 and again a cut of 80% in his conveyance allowance and one decrement was imposed as per rules and this was conveyed to him vide letter dated 5.6.1995. Subsequently, again, the petitioner did not procure any business for the 3rd year ending 31.3.1996 and even this performance was conveyed to him vide letter dated 27.5.1996 and in fact, then once again his termination of services was proposed to which he submitted his reply on 22.7.1996, but since he was approaching the age of superannuation, he was permitted to retire. The petitioner has not controverted these averments made in the counter-affidavit implying thereby that in the year 1995 when his case regarding merit and suitability was considered, this material was available with the respondents which persuaded them to deny promotion to the petitioner. When the aforesaid material is considered, there does not seem to be any arbitrariness in the action of the respondents. The petitioner has not acquitted himself appropriately even after his reinstatement in 1993. His record was full of blemishes and prior thereto for the last 30 years i.e. from 1963 to 1993, there was no record of his performance. Thus, when the rule of promotion talks of merit which the petitioner having demonstrated lack of quality, there apparently does not seem to be any error of law having been committed by the respondents. Promotion C.W.P. No.469 of 1996 -5- is not a matter of right and at the best, the petitioner could have had a right of consideration which consideration was granted to him, but finding his performance below the mark, the promotion was rightly denied to him. There is thus, no merit in the petition and the same is dismissed. (MAHESH GROVER) November 7, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO