IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 197 of 2011 Jauhari Lal ….…… Appellant. Versus State of Uttarakhand and others ………. Respondents Mr. M.C. Pant, Advocate for the appellant. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the State / respondent Nos. 1, 2 and 4. Mr. B.D. Pande, Advocate holding brief of Mr. B.D. Kandpal, Advocate for respondent No. 3. Mr. Manoj Tiwari, Senior Advocate with Mr. Sandeep Adhikari, Advocate for the interveners. Date of Judgment: 02.09.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. BARIN GHOSH, C.J. (ORAL) Admit. 2. Heard learned counsel for the parties as well as the interveners. 3. We do not think that any of the rights of the interveners were sought to be affected by presenting the writ petition. The purpose of the writ petition was to obtain a review of the DPC, held in the years 2007, 2008 and 2009. 4. It is the contention of the appellant that since he was awarded ‘good’ for the years 1999, 2001, 2002, 2003, 2004 and 2005, he missed out the opportunity of being promoted, when the DPC was held in the years 2007, 2008 and 2009. It is the contention of the appellant that in as much as he was awarded ‘good’ during those years, the same had an adverse effect on the chance of his promotion and, therefore, those entries were required to be communicated to the appellant. 5. In support of the said contention, appellant relied upon the judgment of the Hon’ble Supreme Court, rendered in the case of Dev Dutt Vs. Union of India and others, JT 2008 (7) SC 463. There is no dispute that during the years, referred to above, appellant was awarded ‘good’ entries. There is also 2 no dispute that those entries were not communicated to the appellant. At the same time, there is also no dispute that because ‘good’ entries earn 5 marks, ‘very good’ entries earn 8 marks and ‘excellent’ entries earn 10 marks and because the next higher post is available only on merit and, accordingly, whoever scores more marks, is regarded more meritorious for being promoted to the next higher post, appellant lost because during those years, namely, during 6 years out of 10 years, he obtained ‘good’ entries. Appellant came to know the reason why he was not adjudged meritorious enough to be promoted to the higher post when DPC was held in the years 2007, 2008 and 2009, only when, upon exercise of Right to Information, he came to learn on 31st August, 2009 that he has obtained ‘good’ entries during the said 6 years. 6. In that background, the real object of the writ petition was to direct the employer to serve the said 6 ‘good’ entries to the appellant, so as to enable him to make a representation in regard thereto, in terms of the rules made by the employer and thereafter, in the event there is any alteration in such entries, upon consideration of such representation of the appellant, to direct holding of review DPC of the years 2007, 2008 and 2009. The writ court, while dealing with the writ petition, felt that the same is not permissible in the absence of those who have been promoted in the years 2007, 2008 and 2009. 7. We are of the view that the learned Judge failed to take note of the fact that a right, recognized by the Hon’ble Supreme Court, was interfered with by the employer by failing to discharge its obligation to communicate, on time, to the appellant what grade he has obtained while serving the employer during those 6 years, in order to give him an opportunity to make a representation, if any, in respect thereof. 8. We, accordingly, set aside the judgment and order under appeal. It appears that during the years 2006, 2007 and 2008, appellant was awarded ‘excellent’, while for the year 2000, he was awarded ‘very good’. We direct the employer to furnish to the appellant entries of ‘good’ and ‘very good’, 3 awarded to him during the relevant years, as quickly as possible, but not later than one month from the date of service of a copy of this order upon respondent No. 4. Within 15 days therefrom, appellant shall be entitled to make representation against those entries, if he is so advised. In the event such representations are made, those must be decided in accordance with law and in terms of law made by the State Government in that regard. 9. In the event, accepting the representations to be made, the entries are altered and, accordingly, appellant becomes entitled to receive more marks, the employer of the appellant must immediately re-constitute review DPC and ascertain whether the appellant has obtained the minimum marks, which entailed promotion in course of DPC, held in the years 2007, 2008 and 2009. In the event it appears that the appellant has, in fact, obtained such marks, it shall be obligatory on the part of the employer to give promotion to the appellant treating him to have succeeded in the DPC of either of the years 2007, 2008 or 2009, in which the appellant has crossed the marks as above. The promotion, pursuant to the above direction, will be effective from the date of promotion to be given, but notional benefit of such promotion will be accorded to the appellant from the date the other person in course of DPC held in any of the years 2007, 2008 or 2009, whose mark is equal or less than the marks obtained by the appellant, was given promotion. 10. The appeal is, accordingly, allowed. (V.K. Bist, J.) (Barin Ghosh, C.J.) 02.09.2011 02.09.2011 Amit