In the High Court of Punjab and Haryana at Chandigarh C.W.P. No. 12358-CAT of 2004 Date of Decision: May 26, 2008 B.R. Ahir …Petitioner Versus Central Administrative Tribunal, Chandigarh and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MRS. JUSTICE SABINA Present: None for the petitioner. Mr. Ashwani, Talwar, Advocate, for respondent Nos. 2 to 4. JUDGMENT M.M. KUMAR, J. 1. The instant petition is directed against order dated 13.1.2004 (P-5), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’), dismissing the Original Application No. 153-PB-2002, filed by the petitioner seeking a direction to the official respondents to consider his case for promotion to Senior Administrative Grade (SAG) of ITS/TTS Group-A on ad hoc and temporary basis by convening a review meeting of the Departmental Promotion Committee (DPC) and to promote him from the date his juniors, namely, Sarvshri Satish C.W.P. No. 12358-CAT of 2004 Kumar Oberai, Gopal Dutt and Dev Raj Pal, have been promoted, with all consequential benefits. 2. Brief facts of the case are that the petitioner, who belongs to Scheduled Caste Category, was initially selected and appointed by the then Post Master General, Punjab Circle, Ambala, as Engineering Supervisor, Phones at Jalandhar, under the erstwhile Telegraph Division, Ambala, where he joined on 16.5.1964. In the year 1973, the petitioner passed the departmental qualifying examination of TES Group ‘B’ and consequent upon his promotion as TES ‘B’, was posted as Sub Divisional Engineer, Telegraphs, Shimla. In August 1982, he was further promoted in the Senior Time Scale of ITS Group ‘A’ and posted as Divisional Engineer in Bombay Telephone Circle, where he remained upto 1986. In June 1986, the petitioner was transferred to Punjab Circle and posted as Divisional Engineer at Ludhiana in the Senior Time Scale. On 29.11.1994, the petitioner joined the post of Deputy General Manager, Telecom, Amritsar, consequent upon his further promotion to Junior Administrative Grade of ITS/TTS Group ‘A’ on regular basis. In April 1996, the petitioner was transferred and posted as Deputy General Manager, Telecom Jalandhar, from where he retired from service on attaining the age of superannuation on 31.3.2002. 3. It is claimed that as per the Blue Book printed by the Department of Telecom, which contains the seniority and staff numbers allotted to Group ‘A’ Officers, the petitioner is senior to private respondent Nos. 5, 6 and 7. The name of the petitioner figures 2 C.W.P. No. 12358-CAT of 2004 at Seniority No. 29, whereas the names of private respondent Nos. 5, 6 and 7 appears at Seniority Nos. 31, 88 and 102 respectively (P-3). Further promotion from the post of Junior Administrative Grade of ITS/TTS Group ‘A’ (for brevity, ‘JAG’) is to the post of Senior Administrative Grade of ITS/TTS Group ‘A’ (for brevity, ‘SAG’). It has been claimed that the petitioner is having excellent and unblemished service record because nothing adverse has ever been communicated to him, thus, he was required to be considered for promotion to the post of SAG by the Departmental Promotion Committee alongwith his juniors i.e. respondent Nos. 5 to 7. On 71.2002, the respondent Department promoted Shri Satish Kumar Oberai-respondent No. 5 and by order dated 15.1.2002, Sarvshri Gopal Dutt and Dev Raj Pal-respondent Nos. 6 and 7, were promoted to the post of SAG (P-1 & P-2). Feeling aggrieved, the petitioner approached the Tribunal by filing Original Application No. 153-PB- 2002 and the same has been dismissed vide order dated 13.1.2004, which is subject matter of challenge in the instant petition. 4. In the written statement filed on behalf of respondent Nos. 2 to 4 the stand taken is that promotion to the post of SAG is made purely on merit and the merit is the sole criteria for promotion. It has been asserted that respondent Nos. 5 to 7 were found more meritorious than the petitioner by the Selection Committee and accordingly they were promoted ahead the petitioner. It has further been mentioned that in the meeting of Screening Committee held on 20.12.2001, the case of the petitioner alongwith his juniors was 3 C.W.P. No. 12358-CAT of 2004 considered for adhoc promotion to SAG, however, the candidature of the petitioner could not be assessed for want of ACRs. In the next meeting of the Screening Committee held on 29.1.2002, his case was considered but he was not found fit for promotion. It has been pointed out that as per the instructions issued by the Government of India for recording the Annual Confidential Report, only adverse remarks are required to be communicated to the concerned officer and good or average remarks need not to be communicated. It has been admitted that the petitioner had neither earned any adverse remarks nor the ACRs earned by him were ever downgraded and as such there was no need to communicate such ACRs. 5. The petitioner filed Original Application No. 153-PB- 2002 before the Tribunal and the claim made by the petitioner for promotion to the post of SAG on ad hoc and temporary basis was rejected. The argument of the petitioner was rejected by the Tribunal that his ACRs below the bench mark of Very Good was required to be communicated to him and in the absence of communication, such ACRs could not have been considered. The observations of the Tribunal reads thus:- “……Indubitably the applicant has not even cared to approach the competent authority or a competent court of law for improvement in the grading given to him which may be below the bench mark of ‘Very Good’. Once he has himself accepted the grading given by the competent authorities in his ACRs, he cannot be allowed to raise an 4 C.W.P. No. 12358-CAT of 2004 argument that such accepted grading should not be considered by the DPC to asses his fitness or otherwise for promotion to the higher post. Not only this, it is specific stand of the respondent department that applicant had lodged a claim for his consideration by review DPC as he was not considered in the meeting held on 20.12.2001 due to non availability of ACRs for the relevant period. Thereafter in the DPC held on 29.1.2002, his case has been considered but he was not found fit for promotion. Despite such specific stand, the applicant has again not cared to challenge his unfitness as assessed by the DPC. In the absence of any challenge to his unfitness as assessed by the DPC, he cannot be allowed any relief. His, unwillingness to file even a rejoinder makes it amply clear that the applicant has accepted his fate.” 6. The other argument raised on behalf of the petitioner that he was entitled to be promoted on the basis of reservation available to the members of the Scheduled Caste was also rejected with the observation that there was no reservation for making promotion to the post of SAG. Emphasising that according to the rules, promotion to the post of SAG is made purely on merit, the Tribunal went on to observe as under:- “8. It is accepted positions that promotion to the SAG of IIT/TTS Group A is purely on merit. Primacy is to be 5 C.W.P. No. 12358-CAT of 2004 given to merit. A junior person in the feeder category having superior grading may be preferred to his senior for being placed is the select list. The issue of assessment made by the selection committee cannot ordinarily be agitated, sifted or gone into by the Courts have been considered in a number of cases. ……” 7. After hearing learned counsel for respondent Nos. 2 to 4 and perusing the paper book, we are of the considered view that this petition deserves to be allowed. It is conceded position that the petitioner is senior to private respondent Nos. 5, 6 and 7, as his name figures at Seniority No. 29 whereas the names of respondent Nos. 5, 6 and 7 appears at seniority Nos. 31, 88 and 102 respectively (P-3). We have perused the original record produced by the respondents, which shows that the petitioner has not earned all the reports as Very Good during the last ten years. Those reports are being considered as inadequate to his promotion. It is also evident that the ACRs of the petitioner were below the bench mark fixed for promotion to the post of SAG and those ACRs were never communicated to him. The question as to whether only adverse ACRs are required to be communicated or all the ACRs have to be communicated to an employee has come up before Hon’ble the Supreme Court in the case of Dev Dutt v. Union of India and others (Civil Appeal No. 7631 of 2002, decided on 12.5.2008). It has now been held that all the ACRs including ‘Good’ or ‘Very Good’ are also required to be communicated. The only exception made is in the case of military 6 C.W.P. No. 12358-CAT of 2004 officers because of their distinct position, as per clarification given by Hon’ble the Supreme Court in the case of Union of India v. Major Bahadur Singh, (2006) 1 SCC 368. After noticing that a public servant is entitled to make a representation against any of his ACR and also get a chance to improve his performance, their Lordships’ have observed as under:- “45. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. 46. In view of the above, we are of the opinion that both the learned Single Judge as well as the learned Division Bench erred in law. Hence, we set aside the judgment of the Learned Single Judge as well as the impugned judgment of the learned Division Bench.” 8. After laying down the aforementioned law, Hon’ble the Supreme Court issued directions in Dev Dutt’s case (supra), where the public servant has also retired as in the present case, in para 48, which reads thus:- 7 C.W.P. No. 12358-CAT of 2004 “48. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment.” 9. The view of the Tribunal that there was no reservation provided for this post deserves to be upheld because there is no rule or instructions providing for reservation in promotion for the post of SAG. 10. In view of the above, the writ petition succeeds. A direction is issued to respondent Nos. 2 to 4 to communicate to the petitioner all his ACRs, which have been taken into consideration by the Departmental Promotion Committee within a period of two months from the date of receipt of certified copy of this judgment. Thereafter the petitioner may make a representation against the said entry within a period of two months and such representation made by 8 C.W.P. No. 12358-CAT of 2004 him shall be decided within next two months. If his entries are upgraded then the petitioner shall be considered for promotion retrospectively by the Departmental Promotion Committee with effect from the date persons junior to him i.e. respondent Nos. 5, 6 and 7 were promoted. The Departmental Promotion Committee shall meet within a period of three months thereafter. If the petitioner is selected for promotion with effect from the date persons junior to him were promoted then he would be given higher pension with arrears of pay and interest at the rate of 8% per annum till the date of payment. 11. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE (SABINA) May 26, 2008 JUDGE Pkapoor 9