CWP NO.10906 of 1988 :1: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 23.9.2008 Babu Ram ...Petitioner VERSUS The State of Punjab and others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.I.P. Singh, Advocate for the petitioner Mr.S.S.Sahu, AAG, Punjab for the respondents Permod Kohli, J. (Oral) The petitioner was serving as a Forest Guard having been appointed on 16.12.1961 in the State of Punjab. On the basis of certain allegations, a charge-sheet was issued upon him on 25.2.1976 and on conclusion of the enquiry, he was dismissed from service vide Order dated 6.3.1985 by the Chief Conservator, Punjab, Chandigarh. An appeal was preferred by the petitioner and the Appellate Authority converted the punishment of dismissal into one for “Censure” only. The Appellate Authority also directed that the period of dismissal be treated as on duty vide his order dated 25.1.1986. Consequently, the petitioner rejoined the service as Forest Guard on 11.2.1986. The respondents, however, treated the CWP NO.10906 of 1988 :2: period from 12.3.1985 to 11.2.1986 as Earned Leave contrary to the order dated 25.1.1986. It is further stated that the petitioner was required to be considered for promotion as Forester in the year 1981 alongwith his batch-mates. However, he was denied such promotion on account of pendency of the disciplinary proceedings against him. Some promotions were made vide order no.29 dated 25.5.1984, but without considering the petitioner. However, the order contains stipulation of reserving one post for the petitioner till the decision of the departmental enquiry. The petitioner has further stated that he has been denied the right to cross the Efficiency Bar on account of pendency of enquiry right from 19776 to 1980. Accordingly, the petitioner made representation for seeking promotion and other relief which came to be rejected vide Letter No.6884 dated 17.6.1988 (Annexure P-4). The petitioner has accordingly filed the present writ petition seeking his promotion as Forester w.e.f. 25.5.1984 when persons junior to him were so promoted and has also prayed for grant of clearance of Efficiency Bar and consequential emoluments on the promotional post with interest at the rate of 12% per annum. In the reply filed by the respondents, it is admitted that the punishment of dismissal of the petitioner was converted as one for “Censure” by the Appellate Authority and thereafter, the petitioner was reinstated in service vide order dated 25.1.1986 (Annexure R- 2). It is also admitted that the period of absence has been treated as Earned Leave vide order dated 16.6.1986 (Annexure R-3). Regarding promotion, it is stated that the petitioner was not found CWP NO.10906 of 1988 :3: fit for promotion as Forester as per the criteria laid down by the Committee, though reservation of one post for the petitioner has been admitted. It is further stated that the petitioner earned adverse reports during the years 1968-69, 1969-70, 1970-71, 1971-72, 1973-74 and 1974-75 and thus, he was not found fit for promotion. It is, however, admitted that the petitioner was allowed to cross Efficiency Bar by the Divisional Forest Officer, Ropar vide order dated 9.12.1988. I have heard learned counsel for the parties and perused the paper-book. The petitioner was reinstated into service on 25.1.1986 pursuant to the order passed by the Appellate Authority and simultaneously, the period he remained out of service was also treated as “on duty”. Without setting aside this order, the respondents treated the period of absence from duty w.e.f. 12.3.1985 to 11.2.1986 as “Earned Leave”. No justification has been given for deviating from the order passed by the Appellate Authority, which order was never set aside by any competent authority. Hence the period from 12.3.1985 to 11.2.1986 has to be treated as “on duty”. It is admitted case of the parties that in the year 1981, the petitioner was entitled to be considered for promotion as Forester. However, on account of pendency of disciplinary proceedings, he was not accorded such consideration. Even in he year 1984, the petitioner was not considered for promotion, though a post was reserved for him. From the reply, it appears that on account of CWP NO.10906 of 1988 :4: adverse reports allegedly earned by the petitioner between the years 1968 to 1975, he was not considered for promotion. No rule has been brought on record or shown to this Court as to whether these adverse reports were required to be taken into consideration for consideration of promotion in the years 1981 and 1984 and also as to for consideration of promotion, the A.C.R of last how many years were to be considered. It is argued that at the time of promotion, A.C.Rs for the last seven years were required to be considered. At the time of promotion in the year 1981, some of the adverse reports contained in the A.C.Rs were within period of seven years. However, in the year 1984 when the petitioner was again considered for promotion, there was no adverse report against him within seven years. Apart from that, it is not known and no averment has been made in the reply whether adverse remarks were communicated to the petitioner at any point of time. Under such circumstances, the petitioner could not have been denied promotion in the year 1984 as one post was reserved for him. In so far as the punishment of “Censure” is concerned, again no rule has been brought to my notice as to punishment of “Censure” can create any impediment for grant of promotion. In the absence of there being any such requirement/rule, the petitioner could not have been denied promotion on account of “Censure” which is admittedly a minor punishment. In view of the above, this writ petition is accordingly allowed with a direction to the respondents to consider the petitioner for promotion w.e.f. 1984 i.e. 11.5.1984 and if on such consideration, CWP NO.10906 of 1988 :5: he is found suitable for such promotion, he may be granted promotion to the post of Forester. The petitioner has retired from service w.e.f. 30.11.1988. He has already crossed the Efficiency Bar also, as per the averments made in the written statement w.e.f. 1.2.1976 vide order no.64 dated 9.12.1988. In the event the petitioner is promoted, he will not be entitled to the monetary benefits, though his salary shall be re- fixed giving him notional benefit of salary and all increments which he might have earned on the promotional post and such emoluments shall be considered for fixation of his retrial benefits. Let the process of consideration for promotion be completed within a period of six months from today and consequently, if the petitioner is promoted, he be granted all benefits including retrial benefits on the promotional post within a period of three months thereafter in the light of observations made here-in-above. (PERMOD KOHLI) JUDGE 23.9.2008 MFK CWP NO.10906 of 1988 :6: