Civil Writ Petition No.9828 of 1992 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 22.4.2009 (i) Civil Writ Petition No.9828 of 1992. Dr. Vijay Kumar Sharma ......Petitioner Versus State of Punjab and others .......Respondents (ii) Civil Writ Petition No.16556 of 1992 Dr. Vijay Kumar Sharma ......Petitioner Versus State of Punjab and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Sanjeev Sharma, Advocate, for the petitioner. Ms. Madhu Dayal, Additional AG, Punjab. HEMANT GUPTA, J (Oral). This order shall dispose of Civil Writ Petition Nos. 9828 and 16556 of 1992, both filed by Dr. Vijay Kumar Sharma. Challenge in CWP No. 9828 of 1992 is to the order of reversion dated 28/30.3.1992 from PCMS Class-I to Class-II. In CWP No. 16556 of 1992, the petitioner seeks issuance of direction to the respondents to promote the petitioner from Civil Writ Petition No.9828 of 1992 (2) the date his juniors in the cadre of PCMS Class-I, were promoted to the post of Deputy Director and grant of consequential benefits. The petitioner joined as PCMS Class-II on 16.2.1963. The petitioner was permitted to cross his first efficiency bar on 16.2.1969 and second efficiency bar on 1.8.1976. The petitioner was promoted as PCMS Class-I vide order dated 25.1.1979. The petitioner sought promotion with effect from 17.2.1978 i.e. the date from which, his juniors were promoted. The civil suit filed by the petitioner to claim promotion from the said date, was dismissed as infructuous, when a statement was made that the petitioner has been promoted with effect from 17.2.1978. Subsequently, the petitioner has been reverted vide the order impugned in the writ petition. It is asserted by the respondents that a show- cause notice was served upon the petitioner before reverting the petitioner from the date of PCMS Class-I to Class-II vide on 28.4.1992. The impugned order Annexure P.19 has been passed on the ground that the case of the petitioner for promotion was sent to the Punjab Public Service Commission for necessary approval and the Punjab Public Service Commission has not approved the promotion of the petitioner on the basis of adverse Annual Confidential Reports for the period 1966-67, 1972-73 and 1979-90 and consequently, the promotion order has been rightly withdrawn. In the written statement filed by the Punjab Public Service Commission, reference has been made to the record of previous five years of the petitioner prior to the consideration of the claim of the petitioner for promotion. Promotion to PCMS Class-I, is governed by the Punjab Civil Medical Service (Class-I) Rules, 1972. Rule 9(3) contemplates that all promotions whether from one grade to another or from one class or service Civil Writ Petition No.9828 of 1992 (3) to another, shall be made by selection on the basis of merit-cum-seniority and seniority alone shall not give any right of appointment. There is no adverse entry in the preceding five years Annual Confidential Reports from the date of consideration of the petitioner for promotion. The petitioner is shown to be graded below average in the year 1979-80. As per the petitioner, even the said remarks have been expunged vide order dated 16.11.1983. Even otherwise, the record of the year 1979-80 was not relevant for consideration of promotion of the petitioner when his juniors were promoted with effect from 17.2.1978. The record of the year 1979-80 is subsequent to the relevant date of consideration. The annual confidential report of the year 1966-67 does not pertain to the integrity of the petitioner. The petitioner was assessed to be below average for general performance, intelligence and efficiency. Such remarks are not relevant as they pertain to a period of more than 5 years. Admittedly, remarks for the year 1972-73 were not conveyed. Therefore, such remarks could not have been taken into consideration. In view of the above, the writ petitions are allowed. The impugned order dated 28/30.4.1992 (Annexure P.19) is set aside. The respondents are directed to consider the claim of the petitioner for further promotion in the cadre of PCMS Class-I, from the date his juniors, if any, were promoted in accordance with law. In case, the petitioner is found entitled to further promotion, he shall be entitled to all consequential benefits, except payment of arrears of pay. (HEMANT GUPTA) JUDGE 22.4.2009 ds