CWP No. 4226 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 4226 of 2009 Date of decision: 25.7.2011 Dr.Rajinder Kumar ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS.JUSTICE RITU BAHRI Present: Mr.PS Goraya, Advocate for the petitioner Mr.Ram Lal Gupta, Additional Advocate General, Punjab *** RITU BAHRI, J.(Oral) The petitioner was appointed as Agricultural Inspector (now Agriculture Development Officer) by the Director, on the recommendation of the Departmental Selection Committee. He joined as such on 21.11.1989 Sh.Rajinder Kumar petitioner completed his 8 years service in the cadre on 20.11.1997. As per Instructions dated 13.9.2001 of the Personnel Department, his case for grant of higher scale after 8 years service was required to be considered. Petitioner did not pass the departmental examination, therefore, he was not found eligible for higher pay scale w.e.f. 20.11.1997, as per Punjab Government's Instructions. He passed departmental examination in accounts on 26.5.1999. As per Instructions dated 25.9.1998 and its clarification dated 10.1.2000, at the time of grant of higher scale, record of the officer should be good i.e. his 50% reports should be good and out of the last three reports, two may be good. CWP No. 4226 of 2009 2 The gist of ACRs of the petitioner is as under:- 1 1989-90 Good 2 1990-91 Good 3 1991-92 No report certificate 4 1992-93 Good 5 1993-94 Good 6 1994-99 No report certificate 7 1995-96 No report certificate 8 1996-97 No report certificate 9 1997-98 Average 10 1998-99 Average 11 1999-2000 Good 12 2000-2001 Very Good For considering his case for higher pay scale from 26.5.1999, the last three reports (for the years 1996-97, 1997-98 and 1999-2000) were considered. Out of these three reports, two were average and in one, certificate regarding no report was received. Hence, he was not found eligible for higher pay scale from 26.5.1999. At the time of grant of higher pay scale w.e.f. 26.5.2001, his last three reports i.e. 1998-99, 1999-2000 and 2000-2001 were considered. Out of these three reports, two were good and one was average and therefore, he was found eligible and was placed in the scale of Rs.10025-15100/-. In the order dated 10.9.2008 (Annexure P-1) passed by the Commissioner, Development, Punjab, it has been admitted that the there were no adverse remarks in his ACRs. CWP No. 4226 of 2009 3 As per Clarification dated 10.1.2000 regarding instructions dated 25.9.1998, placement in the higher scale and proficiency step-up shall be granted only to those employees whose over all service record is adjudged as 'Good'. As per clause 2 of the Clarification dated 10.1.2000, the terms of over all service record will mean as under:- “This matter has been considered in consultation with the Department of Finance and it is clarified that the term overall service record is adjudged as 'Good' will mean that 50% reports should be 'Good' and above including at least two of the last three reports. The rest of the reports may be Satisfactory / average.” To avail the benefit of higher pay scale, 50% service record of an employee should be good and out of the last three reports, at least 2 reports should be 'Good'. As per the said Clarification, if last 2 reports are average, the department will dis-entitle to an employee for grant of higher pay scale. The object of the higher scale after 8 years is to remove stigma in the service career of an employee, average report should not be taken as adverse remarks, but when Satisfactory/ average dis-entitles to an employee for grant of promotional scale then it casts the duty on the employer to communicate these remarks to the employee. It is not disputed that these remarks were not communicated to the petitioner when his case for higher pay scale was considered in the year 1999 and was rejected as his two reports were average and one report was not received. CWP No. 4226 of 2009 4 The grievance of the petitioner is that out of the entire ACR record, only two reports are average, four reports have not been communicated to him and 6 reports are good/ very good. These reports on account of being not communicated, could not affect his claim for ACP Grade. Learned counsel for the petitioner on placing reliance on the judgment delivered by the Hon'ble Supreme Court in case Abhijit Ghosh Dastidar vs. Union of India and others (2009) 16 Supreme Court Cases 146 has contended that un-communicated remarks cannot affect his right to claim ACP Grade, as he had earned in the last 8 years. Therefore, non- communication of these reports violates Article 14 of the Constitution. Learned counsel for the respondents-State has not been able to dispute the settled proposition of law set up by the Hon'ble Supreme Court. In view of the above, the present writ petition is allowed. Order dated 10.9.2008 (Annexure P-1) is quashed. The petitioner is held to be entitled for the grant of ACP Grade w.e.f. 26.5.1999 with all consequential benefits. 25.7.2011 (RITU BAHRI) gsv JUDGE