CWP No.20103 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 10.1. 2011 Kesar Singh ...Petitioner VERSUS State of Punjab and others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Ramesh Goyal, Advocate for the petitioner Mr.BS Chahal, DAG, Punjab Permod Kohli, J. (Oral) Keeping in view the controversy involved and with the consent of learned counsel for the parties, this petition is being disposed of at motion stage itself without insisting for reply. The petitioner was promoted as Excise & Taxation Officer from the Ministerial Cadre and was assigned seniority from the date of joining w.e.f. 20.5.1992. The next promotion of the petitioner is to the post of Assistant Excise & Taxation Commissioner. The grievance of the petitioner is that the juniors to the petitioner have been promoted whereas the petitioner has been CWP No.20103 of 2009 2 ignored. The annual reports of the petitioner for the years 2004-05 and 2005-06 recorded by the reporting authority were “Very Good” and “Good”, respectively, whereas the same were downgraded by the higher authority and then again the same were upgraded by the then concerned Minister. It is agreed to by the learned counsel for the parties that the issue involved in this petition is no more res integra having been settled by this Court in the case of Ashok Kumar Sood vs. State of Punjab and another, 2006(2) RSJ 83 wherein following observations/directions have been made:- “33.The perusal of the aforestated shows that the Minister-in-Charge is entitled to call for the ACR and also the personal file of an official and is entitled to give the remarks. We have also perused the remarks given by the Minister-in-Charge wherein he has categorically observed that he had the opportunity to observe the work and conduct of the officials concerned and that he does not subscribe to the view of the Secretary Public Works as the work and conduct assessed by the reportintg authorities has been opined as “Outstanding” who had better opportunity to watch the work and conduct of the official concerned. It obviously seems that the Minister-in-Charge has opined on the basis of his personal knowledge and experience vis-a-vis the official concerned. We are CWP No.20103 of 2009 3 of the opinion that as far as reviewing and accepting authority is concerned, the said authority is also subject to the control of the democratic set up propounded under the Constitution of India. In the democratic system the popularly elected person has to have the control upon the administrative authorities as per the rules and regulation and rules of business defined accordingly. We are further of the opinion that the Administrative Secretary while downgrading the ACR has not given the justifiable reasons whereas in the case of both the officials i.e. Shri J.P.Chander and Shri A.K.Sood, the reporting authority has spelt out the consideration of the work and conduct of the officials under various heads and have ultimately opined the assessment in favour of the official concerned as “Outstanding”. Thus, re-writing the report “Good” or “Very Good” would require detailed reconsideration. In the instant case, the perusal of the record shows that the Secretary has not given any reason for differing with the report of the reporting authority. The purpose and object of giving the authority to the Minister-in-Charge is not entitled to give the remarks accordingly. It is true that the rules though provide that the person must be under the control and surveillance of the CWP No.20103 of 2009 4 authority concerned for at least a period of three months. If that be so, the authority entitled to examine the aforestated files would lose the authority if in a given case the Ministry is formed and the Minister-in-Charge remained Minister-in- Charge for a period of 1 ½ months...... 34.Apart from the above, the record shows that the Public Works Minister accepted the difference of opinion vis-a-vis himself and the Administrative Secretary and very fairly sent the same for the consideration of the Chief Minister. The Administrative hierarchy vis-a-vis the interpretation of instructions would always make it imperative that the person who holds the authority amongst the equivalence, shall be the authority to finally opine accordingly. In the present case, the Chief Minister has opined accordingly and as a result thereof, the upgradation of the ACR in the case of the officials has been rightly accepted. 35.In view of the above, the irresistible conclusion is that this writ petition deserves to be disposed of with a direction to the respondents to consider the claim of all the eligible candidates, by being placed before the DPC, who were and are in the zone of consideration for the purpose of filling the posts of Chief Engineers which had fallen vacant CWP No.20103 of 2009 5 during the pendency of the petition and which may fall vacant upto the date of this judgment. No costs.” In view of the ratio of the aforesaid judgment, this petition is disposed of with a direction to the respondents to consider the claim of the petitioner for promotion from the date private respondents were promoted, without disturbing the final grading of ACRs. (PERMOD KOHLI) JUDGE 10.1.2011 MFK CWP No.10585 of 2010 6