Civil Writ Petition No. 4791 of 2006 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 4791 of 2006 Date of decision: 22.9.2009 Musadi Lal ...Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Sumeet Goel, Advocate for the petitioner. Mr. Surinder K. Bishnoi, Deputy Advocate General, Haryana ***** S.D.ANAND, J. The petitioner herein superannuated on 31.7.1999 from the employment of the Department of Cooperative Societies, Haryana. While averring that he had an unblemished service record, the petitioner ventilated a grievance that promotion to the post of Head Clerk/Accountant had been unjustly denied to him and his juniors were promoted (from the post of Clerk to the post of Head Clerk/Accountant) vide order dated 15.9.1998 (Annexure P-1). He filed a representation dated 5.4.1999 (Annexure P-3) but neither the acceptance nor the rejection thereof was communicated to the petitioner till he retired on superannuation on 31.7.1999. The non adjudication of the representation, either way, impelled him to file Civil Writ Petition No.16149 of 2003 which was disposed of on 16.10.2003 by a Division Bench of this Court with a direction to the respondents to decide the representation within four months from the date of order in that petition. On consideration, respondent no.2 rejected the representation filed by the petitioner. The Civil Writ Petition No. 4791 of 2006 -2- **** essential premise forming the foundation of rejection was adverse entries which appeared in the Annual Confidential Report for the period 1991-92. It is noticed in the impugned order Annexure P-4 itself that adverse remarks aforementioned had been communicated to the petitioner vide registered letter dated 15.1.1999 (“the petitioner Musadi Lal was conveyed about his adverse remarks in confidential report of the year 1991-92 vide registered A.D.letter bearing No.34/7/97-98 PS.(4)603 dated 15.1.1999”). In response to the grievance of the petitioner, the respondents re-iterated that promotion had been denied to the petitioner on account of the 1991-92 adverse ACR entry. The further averment, in the context was that in compliance with the orders dated 16.10.2003 passed by a Division Bench of this Court, the representation filed by the petitioner had been disposed of within the indicated period of four months. Yet another averment in the context is that disposal of that representation came about after affording an opportunity of a hearing to the petitioner. I have heard Mr. Sumeet Goel, learned counsel for the petitioner and Mr. Surinder K.Bishnoi, learned Deputy Advocate General, Haryana and have carefully perused the file. It is apparent, from a conjunctive perusal of the pleadings of the parties that the promotion was denied to the petitioner on account of the adverse ACR entry for the period 1991-92 which came to be communicated to him in the year 1999. The petitioner was considered for promotion, which was otherwise denied to him, in the year 1998 (15.1.1998) but ignored on account of 1991-92 adverse ACR entry. In view of the pleadings-related consensual factual position, there is no escape from the conclusion that the averred 1991-92 adverse ACR entry had not been communicated to the petitioner till the time he was considered for promotion. Learned State counsel, when confronted with the facts-based Civil Writ Petition No. 4791 of 2006 -3- **** position aforementioned, had no option but to concede that the aforesaid factual premise is born out by the record and he cannot deny it. There is plethora of law that uncommunicated adverse entry cannot be used against the employee because the user thereof to the detriment of the employee would be a flagrant violation of the principles of natural justice and fair play and also the acknowledged legal proposition that none can be condemned unheard. The position that, thus, emerges from the above discussion is that promotion had been denied to the petitioner on the basis of adverse ACR for the period 1991-92 which had not been communicated to him till his name was considered for promotion and further that that adverse entry came to be communicated to him vide letter dated 15.1.1999; while the promotion was denied to him in the year 1998. The only inference which validly follows is that the denial of promotion to the petitioner on the basis of uncommunicated adverse entry was legally in appropriate and unsustainable. The petition shall stand allowed accordingly. The impugned order dated 13.7.2004(Annexure P-4) shall stand quashed. The petitioner is held entitled to promotion as Head Clerk/Accountant with effect from the date otherwise due. It will be for the respondents to conclude the consideration exercise in the light of the observations made by this Court within one month from the date of receipt of a certified copy of the order of this Court. On the grant of an order of promotion, the petitioner shall be entitled to all the consequential benefits (monetary or otherwise) thereof. September 22, 2009 (S.D.Anand) Pka Judge