CWP No.4844 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.4844 of 2007 Date of Decision: 15.1.2008. Jagrup Singh ............. Petitioner Versus State of Haryana and others. ..............Respondents. CORAM: HON'BLE MR.JUSTICE JASBIR SINGH. HON'BLE MR.JUSTICE JASWANT SINGH. Present:- Mr.KL Arora, Advocate for the petitioner. Mr.Harish Rathee,Sr.D.A.G.Haryana for respondents 1 to 3 . ***** JASWANT SINGH, J. The present writ petition has been filed by the petitioner seeking quashing of the impugned order dated 25.1.2006 (Annexure P-5) vide which his case for promotion to the post of Deputy Superintendent in the respondent department w.e.f. 28.3.1986, in compliance of the order dated 29.11.2004 passed in LPA No. 654 of 1996, has been rejected. He further seeks a direction to the respondent authorities to objectively consider and promote the petitioner to the post of Deputy Superintendent from 28.3.1986 alongwith all consequential benefits. Brief facts of the case, taken from the pleadings of the parties are that the petitioner, who belongs to scheduled caste category, joined the service in the respondent department on 3.11.1971 as Clerk. He was promoted as an Accountant on 17.12.1976 in view of his consistent good service record and on the basis of promotion criteria of seniority-cum-merit. Attar Singh-respondent no.4, who also belongs to scheduled caste category, was promoted as an Accountant on 24.12.1979. He, however, was promoted as Deputy Superintendent w.e.f. 28.3.1986 by ignoring the CWP No.4844 of 2007 2 petitioner. The petitioner filed CWP No.847 of 1987, challenging the said action of the respondent department in ignoring him for promotion to the post of Deputy Superintendent w.e.f. 1984 and 1986, which was dismissed by the learned single Judge on 14.2.1996. Aggrieved against the same, petitioner filed Letters Patent Appeal No.654 of 1996, which was partly allowed vide judgment and order dated 29.11.2004 (Annexure P-2). The judgment of the learned single Judge was set aside; promotion of Attar Singh-respondent no.4 as Deputy Superintendent w.e.f. 28.3.1986 was quashed; and the respondent-department was directed to consider the case of the petitioner for promotion as Deputy Superintendent from 28.3.1986 alongwith all consequential benefits. It was further directed that if the petitioner is found suitable then he shall be given retrospective promotion from 28.3.1986 and respondent-Attar Singh shall make room for the petitioner. It was also added that if the petitioner was found unfit for promotion, then the promotion of Attar Singh shall remain undisturbed. Respondent State filed Special Leave Petition in the Hon'ble Supreme Court against the order dated 29.11.2004 passed by the LPA Bench, which was dismissed on 15.7.2005. Thereafter, the petitioner filed contempt petition no.1241 of 2005 and during the pendency of the same the impugned order dated 25.1.2006 (Annexure P-5) was passed by the respondents. The Contempt Petition was ultimately dismissed as withdrawn with permission to challenge the impugned order dated 25.1.2006. The respondent State has justified the impugned order on the ground that the Hon'ble LPA Bench vide its judgment dated 29.11.2004, while directing the consideration of the case of the petitioner for promotion w.e.f.. 28.3.1986, also observed that if petitioner was not found fit for CWP No.4844 of 2007 3 promotion then the promotion of Attar Singh-respondent no.4 was not to be disturbed, meaning thereby that while considering his case for promotion on the basis of over all grading of his ACRs for the relevant years, the observations recorded by the reporting officer in the column relating to “Fitness for Promotion” could also be looked into. It is further the case of the respondents that since in the ACRs for the years 1982-83, 1983-84 and 1984-85, against the column of “Fitness for Promotion” the remarks were “Needs experience”,the petitioner was not considered fit for promotion although his over all assessment/grading for the said three years was recorded as “Good”. It is also the case of the respondent-department that the SLP filed by it on 9.5.2005 challenging the order dated 29.11.2004 passed by a Division Bench of this Court, was disposed of vide order dated 15.7.2005, having been dismissed as withdrawn by the counsel for the respondent department and that now a review petition against the said order dated 15.7.2005 has been filed by the respondent State. The date of filing of review petition, its stage or fate has not been disclosed even at the time of arguments. The summary of ACRs of the petitioner since 1971-72 till 2002-03 including for the relevant 10 years prior to the relevant date i.e. 28.3.1986 has been annexed as Annexure R-2 with the written statement. It was contended by the learned counsel for the petitioner that the impugned order dated 25.1.2006 (Annexure P-5) suffers from non- application of mind and is thus arbitrary and illegal as it is not based on objective consideration of service record of the petitioner as per the selection criteria of seniority-cum-merit, prescribed vide instruction dated 1.7.1991 (Annexure P-6) and thus is liable to be quashed. Learned Senior Deputy Advocate General on the other hand CWP No.4844 of 2007 4 has argued that the impugned order has been passed after proper application of mind and in due compliance of judgment and order dated 29.11.2004 passed by a Division Bench in the LPA, and is thus legal and valid. We have heard learned counsel for the parties and have perused the record. A perusal of the instructions dated 1.7.1991 (Annexure P-6) shows that the earlier instructions dated 9.5.1985 laying down the criteria for promotion of the employees to higher posts wherein the criteria was seniority-cum-merit had been modified. For ready reference, the same is reproduced hereunder:- “I have been directed to draw your attention to letter No.2/10/85-2 G.S.I. Dated 9.5.85 vide which the requirement was for obtaining 70% good reports instead of 50% good reports. Against these instructions some of the employees had gone before the High Court and in view of the directions given by the Hon'ble Court, the Govt. have again examined the matter. The Govt., have, after considering the mater, has decided that the instructions shall be applicable from 9.5.85 and while examining the cases of promotion, the ACRs for 10 years shall be taken into consideration. 50% reports should be good upto the year 1984-85 and thereafter the reports should be 70% good or more than that.....” A Division Bench of this Court while deciding the LPA No.654/1996 vide order dated 29.11.2004 (Annexure P-2), allowed the claim of the petitioner for promotion to the post of Deputy Superintendent w.e.f. 28.3.1986, the date when his junior namely Attar Singh-respondent CWP No.4844 of 2007 5 no.4 was promoted. The Hon'ble Division Bench directed the consideration of the case of the petitioner for retrospective promotion w.e.f. 28.3.1986 with all consequential benefits. The operative part of the judgment and order is reproduced hereunder:- “In the result, the appeal is partly allowed. The order of the learned Single Judge is set aside. The promotion of respondent no.4 to the post of Deputy Superintendent, District Industries Centre is declared illegal and order dated 28.3.1986 issued by respondent no.2 is quashed so far as it relates to respondent no.4. Respondent no.1 to 3 shall, within 3 months from the date of submission of certified copy of this order, consider the candidature of the appellant for promotion to the posts of Deputy Superintendent, District Industries Centre, which were available in the year 1986. If he is found suitable, then he should be given retrospective promotion w.e.f. 28.3.1986 with all consequential benefits. In that event, respondent no.4 will have to make room for the appellant. However, the State Government may accommodate respondent no.4 by creating supernumerary post. If the appellant is not found fit for promotion to the post of Deputy Superintendent, District Industries Centre, then the promotion of respondent no.4 shall remain undisturbed.” It is clear from the facts narrated above that the promotion to the post of Deputy Superintendent in the respondent department as per the rules was based on the criteria of seniority-cum-merit. It is matter of common knowledge that in all services there is invariably a hierarchy of CWP No.4844 of 2007 6 posts comprising of higher posts and lower posts and as we go towards the higher posts, while considering cases for promotion seniority loses importance and merit gets primacy. Ordinarily, for appointment by way of promotion to lower posts, seniority-cum-merit is always the prescribed criteria, which postulates that given the minimum necessary merit requisite for efficiency of administration, the senior even though less meritorious shall have priority and a comparative merit of assessment is not required to be made. Merit would inter-alia comprise of many features like past performance, punctuality, job knowledge, growth potential, relation with superiors, fitness for promotion. For assessing the necessary minimum merit the Government of Haryana has laid down, by way of instructions, the minimum standard that is required and also prescribed the mode of assessment of merit of the employees who are eligible for consideration for promotion where the prescribed criteria is seniority-cum-merit. Government of Haryana had issued instructions which were in force till 9.5.1985, which provided that a person had to get 50% or above good reports. This criteria was changed to 70% w.e.f. 9.5.1985. The same was however, modified vide instructions dated 1.7.1991 (Annexure P-6) reproduced hereinabove. The respondent department while considering the case of the petitioner for promotion as Deputy Superintendent w.e.f. 28.3.1986 have considered his ACRs for the period from 1976-77 to 1985-86. The same are as under:- S.No. Year Overall assessment Fitness for promotion Adverse remarks, if any. 1 1976-77 Average Not fit - 2 1977-78 Good Not fit - 3 1978-79 Average Yes - 4 1979-80 Average Yes - 5 1980-81 Average Yes - CWP No.4844 of 2007 7 S.No. Year Overall assessment Fitness for promotion Adverse remarks, if any. 6 1981-82 Above Average Fit - 7 1982-83 Good Needs experience - 8 1983-84 Good Needs experience - 9 1984-85 Good Needs experience - 10 1985-86 Good May be considered Adverse remarks conveyed regarding Handwriting and neatness, acquaintance with rules and orders, accuracy in work and promptness in work. The requirement as per instructions dated 1.7.1991 (Annexure P-6) is to see the over all grading of an employee, which obviously is arrived at by taking into consideration the remarks recorded by the Reporting Officer under various columns before arriving at the final over all assessment. It cannot be, by any stretch of imagination, said that the remarks recorded in the column of “Fitness for Promotion” will determine the entitlement fitness of an employee for promotion while considering his case on the basis of criteria based on seniority-cum-merit. Accordingly, there is absolutely no basis in the instant case for the stand that for assessing merit the remarks under the column “Fitness for Promotion” have been prescribed or have to be seen. If such an approach is accepted it would obviously deviate the focus from principle of seniority-cum-merit. The summary of the ACRs of the petitioner for the relevant years, as reproduced CWP No.4844 of 2007 8 above, would show that he fulfills the above said criteria as per instructions dated 1.7.1991 (Annexure P-6) as he possesses more than 50% / 70% good reports for the relevant period and thus rejection of his claim vide order dated 25.1.2006 (Annexure P-5) cannot be sustained in the eyes of law, as looking into column of “Fitness for Promotion” , we find the aforesaid laid down criteria has not been correctly followed. Hence the writ petition is allowed, the impugned order dated 25.1.2006 (Annexure P-5) is quashed. Resultantly, we find that the claim of the petitioner for promotion to the post of Deputy Superintendent w.e.f. 28.3.1986 is justified. Ordinarily, in view of the above, we would have directed fresh consideration of his case for promotion, but due to the fact that the petitioner is about to retire on 31.3.2008 and has been litigating on the issue since last more than 20 years, and we have found hereinabove that he fulfills the promotion criteria, we proceed to allow this writ petition with the direction to respondents to promote the petitioner as Deputy Superintendent w.e.f. 28.3.1986, i.e. the date when his junior namely Attar Singh- respondent no.4, was promoted with all consequential benefits. In that event respondent No.4-Attar Singh (as already held by the LPA Bench vide its judgment dated 29.11.2004 shall make room for the petitioner). The needful be done within a period of two months from the date of receipt of a certified copy of this order. (Jaswant Singh) Judge 15.1.2008. (Jasbir Singh) joshi Judge CWP No.4844 of 2007 9