CWP No.17603 of 2004 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.17603 of 2004 Date of decision: 01.07.2010 K.K. Vashishat, Superintending Engineer .. Petitioner Versus The State of Punjab through the Secretary .. Respondent CORAM: HON'BLE MR.JUSTICE AJAY TEWARI a). Whether Reporters of Local Papers may be allowed to see the judgment ? b). To be referred to the Reporters or not ? c). Whether the judgment should be reported in the Digest ? Present:- Mr.R.D.Bawa, Advocate with Mr.Samuel Gill, Advocate for the petitioner. Mr.Kirat Singh Sidhu, DAG, Punjab. . . . AJAY TEWARI, J. (ORAL) By this petition, the petitioner has challenged the action of the respondent in not promoting him as Chief Engineer while promoting his juniors. The ground taken was that at the time when the DPC was conducted, there were two average reports (each for the period of 6 months) as well as two pending vigilance enquiries as a consequence of which the petitioner was superseded. Learned counsel has argued that the said enquiries were subsequently dropped. As regards the two ACRs, two arguments have been raised. First is that none of these ACRs was ever communicated to the petitioner. The second is that in both the ACRs the reporting and reviewing authorities had graded the petitioner as good/very good but the accepting authority had downgraded the petitioner to average. Learned counsel has relied upon Ashok Kumar Sood CWP No.17603 of 2004 ::2:: Vs. State of Punjab and another, 2006(1) S.C.T. 637, wherein a Division Bench of this Court held as follows:- “33. ..... We are further of the opinion that the Administrative Secretary while downgrading the ACR has not given the justifiable reasons, whereas in the case of both the officials i.e. Shri J.P.Chander and Shri A.K.Sood, the reporting authority has spelt out the consideration of the work and conduct of the officials under various heads and have ultimately opined the assessment in favour of the official concerned “Outstanding”. Thus, re-writing the report “Good” or “very good” would require detailed re-consideration. In the instant case, the perusal of the record shows that the Secretary has not given any reason for differing with the report of the reporting authority.......” Learned counsel has very vehemently argued that a Government servant may not have a right to be promoted but definitely has a right of fair consideration. In the present case, the petitioner had almost 35 years of unblemished service and should have been allowed to retire with grace at the rank of Chief Engineer which was due to him. On instructions from his client, learned counsel has further stated that his client would not claim any consequential benefits but is agitating to have his honour restored. Learned Deputy Advocate General, Punjab, has fairly conceded the factual aspect. He has admitted that the enquiries/charge- sheets issued to the petitioner had been dropped. He is also not in a position to deny that the accepting authority did not record any reasons for differing with the assessment of the reporting authority. Learned Deputy Advocate General has also urged that the petitioner had earlier filed CWP CWP No.17603 of 2004 ::3:: No.8305 of 1999 which was dismissed by this Court. However, it cannot be denied that there is a sea-change in the factual position since the enquiries which were pending at that time were subsequently dropped. This fact would, in my opinion, give an independent cause of action to the petitioner. Thus, the dictum of the Hon'ble Division Bench in Ashok Kumar Sood (supra) would apply with full force, and then it would have to be held that the two ACRs in question have been wrongly downgraded to average. In this view of the matter as well as the fact that no financial implication would be foisted on the respondents, I deem it appropriate to allow this petition and direct the respondents to reconsider the case of the petitioner for promotion after ignoring the facts that there were any charge-sheets/enquiries pending against him and after ignoring the un-communicated ACRs for the periods i.e. from 15.07.1992 to 08.01.1993 and from 04.11.1997 to 31.03.1998. However, it is made clear that in case this exercise is not conducted within next 6 months, the petitioner would not be held bound to his undertaking that he does not claim consequential benefits, and in that eventuality he would be entitled to all consequential benefits also. This petition is allowed in the above terms. (AJAY TEWARI) July 01, 2010 JUDGE sukhpreet CWP No.17603 of 2004 ::4::