IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.11366 of 2007 Date of Decision: February 25, 2009 K.P. Joshi & Others .....PETITIONER(S) VERSUS Chandigarh Administration, Chandigarh & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. H.S. Saini, Advocate, for the petitioners. None for respondent Nos.1 and 3 to 7. Mr. Harsh Aggarwal, Advocate, for respondent No.2. . . . AJAI LAMBA, J (Oral) CWP No.11366 of 2007 [2] In this civil writ petition, the petitioners claim promotion from the post of Commis-III to Commis-II. Learned counsel for the petitioners states that the petitioners are eligible and are required to be promoted to the post of Commis-II. It has further been contended that the criteria adopted by the respondents is arbitrary. The respondents have categorised the post of Commis-II into sub specialisations. The promotion post is of common cadre and therefore, no such specialisation/ categorisation is permissible. Learned counsel for respondent No.2 has pointed out that as per the policy circulated by the Punjab Government in September 2001, Annual Confidential Reports (for short, `ACRs’) for the last five years are required to be considered for assessment of each official. The Selection Committee laid down criteria by way of awarding the following marks:- “(1) Outstanding 4 marks (2) Very Good 3 marks (3) Good 2 marks (4) Average 1 mark” Learned counsel for the respondent has further contended that minimum bench-mark for promotion has been fixed at 12 marks. The promotion was to be done while adopting criteria of merit –cum- seniority. CWP No.11366 of 2007 [3] Contention of learned counsel for the respondent is that all the persons were subjected to the same criteria and therefore, there has been no discrimination. The respondents have the right to fix criteria to consider inter-se merit, for promotion. The criteria itself is not arbitrary in any manner. It has further been contended that the promotion post of Commis-II has also been sub categorised as is evident from the relevant rules. I have heard the learned counsel and have considered the documents towards which attention of the Court has been drawn. The stand of respondent No.2 in the written statement, as given out in Para 1 of the preliminary objections, is the following:- “A DPC was constituted in the year 2006 for filling up 5 vacant posts of Commis-II by promotion from Com- mis-III. The 5 vacant posts were as under:- 1. Commis-II (Tandoor) 2 2. Cimmis-II (Continental) 2 3. Commis-II (Chinese) 1 Petitioner no. 1. 2 & 6 holding the post of Commis-III (Continental), Commis-III (Continental) and Commis-III (Tandoor) respectively were eligible for promotion and were considered. However, they could not achieve the minimum bench mark of 12 marks whereas petitioners no. 3, 4 & 5 who working as Commis-III (Indian) were not eligible for being considered for promotion against the post of Commis-II (Tandoor) as they were not from the field of Tandoor. Therefore, they were not considered for promotion. Thus, the minutes of the meeting of DPC held on 25.8.2006 and 27.8.2006 for making selection for promotion is perfectly valid & justified and hence the promotion order dated 9.10.2006 (Annexure P-5) passed on the basis of the said minutes is legal and valid.” CWP No.11366 of 2007 [4] From the above, it transpires that petitioner Nos.3, 4 and 5 were working as Commis-III (Indian). Promotion to the post of Commis-II was required in the trade of Tandoor, Continental and Chinese. Under these circumstances, petitioner Nos.3, 4 and 5 were not even eligible for being considered for promotion. Issue in this regard now arises as to whether sub categorisation is permissible under the rules or not. The Schedule IV in relation to professionally operational posts, as reproduced in Para 12 of the petition makes it clear that Commis-II has been sub categorised as ‘Indian/ Continental/ Chinese/ Pantry/ Tandoor/ South India/ Halwai/ Bakery’. In Column No.6 of the Schedule, educational and other qualifications required for direct recruitment have been given in which also it has been clarified that the person is required to have “one year relevant experience”. In Column No.10 in relation to recruitment by promotion/ deputation/ absorption, grades from which promotion/ deputation/ absorption to be made, the following has been provided:- “Promotion: Commis-III (Indian/ Continental/ Chinese/ Pantry/ Tandoor/ South India/ Halwai/ Bakery) with 7 years regular service in the respective grade.” Consideration of the rules, therefore, makes it evident that even for the post of CWP No.11366 of 2007 [5] Commis-II, specialisation/ categorisation has been provided. Because no post for promotion was available from Commis-II (Indian) category, petitioner Nos.3, 4 and 5 who were working as Commis-III (Indian) were clearly not eligible for being considered for promotion. Case of petitioner Nos.3, 4 and 5, therefore, has no merit and is accordingly dismissed. On a collective consideration of the relevant provisions in context of the case of the petitioner Nos.1, 2 and 6, it transpires that they were from the relevant specialisations required for promotion to Commis-II i.e. from Tandoor/ Continental and Chinese trades. They were eligible for promotion and were considered in the context of the criteria i.e. merit –cum- seniority. The said petitioners, however, could not achieve the minimum bench-mark of 12 marks. Learned counsel for the petitioners states that adverse entries were not conveyed to the petitioners and therefore, the action taken by the respondents in not promoting the petitioners is vitiated. I have considered the contentions of the learned counsel in the context of petitioner Nos.1, 2 and 6. It is the admitted case that the petitioners were eligible and therefore, were considered for promotion. The contention of the CWP No.11366 of 2007 [6] petitioner that entries in the ACRs were not conveyed to the petitioners, is not relevant in the context of their claim for promotion. A benchmark of 12 marks was fixed by the Selection Committee as the criteria for promotion among Commis-III in the relevant specialisations. It is not the case of the respondents that the entries in the ACRs of the petitioners were adverse and therefore, they were not considered. An employer surely is entitled to consider the best persons on the promotion post merit being the first criteria. A benchmark of 12 marks has been kept which has been achieved by the persons selected. The criteria itself is merit –cum- seniority. In this view of the matter, the petitioners cannot get any help from the cited judgments of the Hon’ble Supreme Court of India in the cases of Dev Dutt vs. Union of India & Others, 2008(3) SCT 429 and Abhijit Ghosh Dastidar vs. Union of India & Others, Civil Appeal No.6227 of 2008 (arising out of S.L.P.(C) No.26556 of 2004), decided on 22.10.2008. Another reason why the petitioners cannot get any benefit from the judgments is that as per Policy circulated and referred to in earlier part of the judgment, entries in ACRs ranging from outstanding to average were all assigned marks. For a good entry in ACR, 2 marks have been assigned. All the candidates were subjected to the same criteria. Under these circumstances, no prejudice can be said CWP No.11366 of 2007 [7] to have been caused to the petitioners for the reason that it is not the respondents’ case that the petitioners have not been selected because they had adverse entries in ACRs. Rather the case set up by the respondents is that petitioner Nos.1, 2 and 6 could not achieve the benchmark of 12 marks as per criteria laid down. Since persons with higher merit were available, therefore, they have been promoted. In this view of the matter, I do not find any illegality in the action of the respondents. In view of the above, the petition is dismissed. (AJAI LAMBA) February 25, 2009 JUDGE avin