IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 84 of 2008 Judgment reserved on: 30.12.2010 Date of decision: 21.2.2011 Ravinder Kumar …Petitioner. Versus H.P. State Electricity Board and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Ms. Kiran Dhiman, Advocate vice Mr. Onkar Jairath, Advocate. For the Respondents : Mr. Trilok Jamwal, Advocate for respondent No.1. Kuldip Singh, Judge The petitioner has prayed for quashing of office order No. 260 dated 28.5.2008 vide which respondents No.2 to 5 have been promoted as Assistant Engineer (Electrical). A prayer has also been made that respondent No.1 may be directed to promote the petitioner as Assistant Engineer (Electrical) from the date his juniors have been promoted with all consequential benefits such as arrears and seniority. 2. The brief facts of the case are that the petitioner after having completed diploma in Draughtsman (Civil) from ITI, Chamba and on the basis of his qualification, was initially appointed as Junior 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Draughtsman in Himachal Pradesh State Electricity Board (for short ‘Board’) and joined as such on 10.10.1974. The petitioner was promoted as Draughtsman in June, 1978 and then as Head Draughtsman in February, 1985. He was promoted as Circle Head Draughtsman in September, 2003. The work and conduct of the petitioner was always appreciated by his superiors. The Board has framed the Recruitment and Promotion Regulations for the post of Assistant Engineer (Electrical) under Section 79 read with Section 15 of the Electricity Supply Act, 1947 and all other enabling provisions under Electricity Act, 2003. The Recruitment and Promotion Regulations (for short ‘Regulations’) were notified vide notification dated 17.4.2007. 3. The next promotional post for the Circle Head Draughtsman is Assistant Engineer (Electrical). The feeder categories for the promotion to the post of Assistant Engineer (Electrical) are Junior Engineers and Drawing Staff. The petitioner belongs to the category of Drawing Staff. The regulations provide 36% posts of Assistant Engineers are to be filled up by direct recruitment and 64% by way of promotion. The promotional quota has further been divided, 52% posts are to be filled up from Junior Engineers category and 12% from Drawing Staff. As per the regulations, 4% posts are to be filled in from Circle Head Draughtsman possessing diploma in Electrical Engineering or Diploma certificate of Draughtsmanship from a recognized institute having five years service in the grade failing which ten years service as Draughtsman / Head Draughtsman/ Circle Head Draughtsman and failing both total 15 years service in the 3 Draughtsman cadre. The petitioner is fully eligible and qualified to be promoted to the post of Assistant Engineer (Electrical) as per regulations. The petitioner has never been conveyed any adverse entries in the ACRs. 4. The post of Assistant Engineer (Electrical) has been classified as selection post which is required to be filled up on the basis of merit-cum-seniority on the basis of recommendation of duly constituted departmental promotion committee. The Board has circulated its provisional seniority list of Circle Head Draughtsman as it stood on 1.1.2008. In that seniority list, the petitioner is at serial No.2 and respondents No.2 to 5 at serial Nos. 3 to 6. The provisional seniority list has been finalized as it is. 5. It has been alleged that many posts of Assistant Engineers (Electrical) were lying vacant which were required to be filled in by way of promotion from the feeder categories. The Board initiated the process for filling the posts of Assistant Engineers (Electrical) from the categories of Junior Engineers as well as drawing staff. The Departmental Promotional Committee was constituted, complete service record i.e. ACR dossiers, integrity certificates and other relevant information regarding qualification and experience of the petitioner and others were collected. 6. The petitioner on the basis of good service record was legitimately expecting that he would be promoted to the post of Assistant Engineer (Electrical), but he was surprised when respondents No.2 to 5 , who are junior to the petitioner, have been promoted to the post of Assistant Engineers (Electrical) vide office order dated 28.5. 2008. The petitioner has been superseded and 4 grave injustice has been done to the petitioner. The petitioner submitted representation dated 2.6.2008 to the Board but the representation of the petitioner remained unattended. 7. It has been alleged that petitioner is senior to respondents No.2 to 5 and petitioner has been wrongly superseded by respondents No.2 to 5 for promotion to the post of Assistant Engineer (Electrical). The respondent No.1 has wrongly, illegally, arbitrarily ignored the petitioner for promotion to the post of Assistant Engineer (Electrical). The action of respondent No.1 for denying the promotion to the petitioner is wrong, illegal and in violation of Articles 14 and 16 of the Constitution of India. 8. The impugned notification dated 28.5.2008 whereby the respondents No.2 to 5 have been promoted is not sustainable inasmuch as every ACR is required to be communicated to the public servant and if not communicated, then the same cannot be used against the employee for denying the promotion. The respondent No.1 did not communicate the ACRs to the petitioner which have been relied by respondent No.1 for denying promotion to the petitioner. The action of respondent No.1 in not promoting the petitioner is arbitrary and malafide. The petitioner is fully eligible and entitled for promotion as Assistant Engineer (Electrical) in accordance with rules. 9. The respondent No.1 has contested the petition by filing short reply. It has been stated that as per the Recruitment and Promotion Regulations the post of Assistant Engineer (Electrical) is a selection post and the selection principle inter alia envisages that the officer assessed as ‘Outstanding’ will supersede the officer 5 assessed as ‘Very Good’ and the officer assessed as ‘Very Good’ will supersede the officer assessed as ‘Good’ only when difference of length of service in the feeder grade between two officers is not more than two years. The ACR of the eligible officers for the last five years are to be taken into consideration. 10. The DPC for promotion to the post of Assistant Engineer (Electrical) was held on 28.4.2008. As per memo submitted for consideration of DPC, a select panel of 8 officers was required to be drawn for promotion as Assistant Engineers (Electrical) from drawing cadre against which only 17 eligible officials belonging to drawing cadre were included in the zone of consideration against vacancies for which select panel was to be drawn. The name of the petitioner was appearing at serial No.1 in the said zone of consideration. 11. The petitioner was assessed as ‘Good’ by the DPC meeting held on 28.4.2008. The respondents No.2 to 5 , who were junior to petitioner were rated as ‘Very Good’ by the DPC. The difference in length of service in feeder grade between petitioner and respondents No.2 to 5 was less than two years, therefore, in view of application of selection principles the petitioner could not find his place in the select panel despite good grading. The respondents No.2 to 5 and some other officials, who were junior to petitioner, were included in the select panel in view of better grading awarded to them by DPC. In these circumstances, the petitioner is not entitled to any relief. 12. The petitioner has filed rejoinder. It has been stated that the case of the petitioner for promotion to the post of Assistant 6 Engineer (Electrical) has been wrongly and illegally ignored. The petitioner has never been communicated ‘Good’ entry recorded in the ACR and had he been communicated such entry, he would have an opportunity of making a representation for upgrading the entry from ‘Good’ to ‘Very Good’. The respondent No.1 has erred in considering the ACRs of petitioner which were not communicated to the petitioner. 13. I have heard the learned counsel for the parties. The record of the DPC was also perused. On behalf of the petitioner, it has been submitted that the respondent No.1 was required to communicate every ACR to the petitioner so as to give an opportunity to the petitioner to improve his grading. It has also been submitted that respondent No.1 could not consider uncommunicated ACRs of the petitioner for promotion. The learned counsel for the petitioner has relied Dev Dutt vs. Union of India and others (2008) 8 SCC 725. The learned counsel for respondent No.1 has reiterated the stand taken by respondent No.1. 14. The petitioner has not disputed the grading of respondents No.2 to 5 in the relevant ACRs. The petitioner has also not disputed his grading of ACRs. He has also not challenged the criteria of promotion. The case of the petitioner is that he is senior to respondents No.2 to 5 and, therefore, he is entitled to promotion to the post of Assistant Engineer (Electrical) from the date his juniors respondents No.2 to 5 were promoted. The added case of the petitioner is that the comparative merit of the petitioner with respondents No.2 to 5 could not be assessed by respondent No.1 on the basis of un-communicated ACRs of petitioner. It has been 7 contended assuming that petitioner was given ‘Good’ and respondents 2 to 5 ‘Very Good’ assessment on the basis of ACRs but the petitioner was not given any opportunity to improve the grading of his ACRs which has caused prejudice to the petitioner. In these circumstances, the petitioner is also entitled to promotion as Assistant Engineer (Electrical) from the date his juniors respondents No.2 to 5 were promoted as Assistant Engineer (Electrical). 15. The learned counsel for the petitioner has relied Dev Dutt (supra) on the point that every entry must be communicated to the employee concerned so that he may have an opportunity to make a representation against it if he is aggrieved. In Dev Dutt (supra) the Supreme Court has held as follows:- “9. In the present case the benchmark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have “very good” entry for the last five years. Thus, in this situation the “good” entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a “good” entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. 10. Hence, in our opinion, the “good’ entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-1994 should be upgraded from “good” to “very good”. 8 Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the “good” entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the “good” entry, which was not done in this case. Hence, we are of the opinion that the non- communication of the “good” entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable.” 16. In Dev Dutt (supra) bench mark was laid down for promotion to the post of Superintending Engineer and a candidate was required to have “very good” entry for the last five years. In that context, “good” entry was held to be adverse entry because it eliminates the candidate from being considered for promotion. In the present case, it has not been shown that such bench mark was fixed for promotion, nor the petitioner has relied any rule, regulation, instructions for communication of ACRs which are not adverse. 17. The petitioner was found less in merit in comparison to respondents No.2 to 5 on the basis of ACRs. The petitioner has pleaded that no ACR was ever communicated to him but he has not pleaded that he was not aware of his entries in the ACRs. In Annexure A-4 representation dated 2.6.2008 the petitioner has raised no grievance regarding his ACRs or non-communication of his ACRs. The only grievance raised in representation Annexure A-4 is that juniors of the petitioner were promoted whereas petitioner 9 was not promoted. Thus, seen from any angle, the petitioner has failed to make out any case. 18. The result of the above discussion, the petition fails and is accordingly dismissed. ( Kuldip Singh ), February 21, 2011 Judge. (GR)