CWP No. 10308 of 1991 1 In the High Court for the States of Punjab and Haryana at Chandigarh … CWP No. 10308 of 1991 Date of decision: September 22,2008 Bua Ditta Sehgal ..Petitioner. Versus Union of India ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. R.L.Sharma, Advocate for the Petitioner. Mr.D.S.Patwalia, Advocate for the respondents ... Rakesh Kumar Garg,J. Through this writ petition, the petitioner is seeking a direction to the respondents to consider his case for promotion as Assistant (on ad hoc basis) earlier to the respondents 3 to 7 and for quashing of memo. Dated 7.5.1991 (Annexure P-9), whereby representation has been rejected in this regard. The petitioner was appointed as Tax Collector on 26.9.1957 and was confirmed as such in the year 1964. As per averments made in the writ petition,it is submitted that since there was no provision in the rules regarding the pay scales of the employees, as such, a settlement was arrived at between the respondent No.2 and the Cantonment Board Workmen (Employees) of the Cantonment Board on 13.5.1969, which was made effective with effect from 1.9.1967 (Annexure P-1). In the aforesaid settlement, the categories of Clerks, Assistant Accountants, Record Keepers, Typists, Steno-typists, Provident Fund and Pay Clerk, Education Clerk, Tax Collector, General Assistant, Bill Clerk and Conservancy Clerk were designated as Clerks. Their seniority was incorporated and was also equated with that of the Clerks with Deputy Commissioner Office for the purpose of pay scales as applicable to that category. It was also notified CWP No. 10308 of 1991 2 by respondent No. 2 on 4.9.1986 vide Annexure P-2 that the post of Tax Collector Grade I and Store Keeper/Cashier who have been equated with that of Assistant had to be filled up from amongst Clerks and Tax Collectors on the basis of seniority-cum-merit. The petitioner’s name appeared at Serial No.6 in the seniority list of Clerks issued by respondent No.2 as stood on 1.6.1985, whereas the name of respondent Nos.3 to 7 appeared far below in the seniority list. Respondent No.2 promoted respondent Nos.3 to 7 as Assistants on ad hoc basis vide order dated 31.8.1990 excluding the name of the petitioner. Petitioner made representations in this regard. Vide Annexure P-9, it was informed that the post of Assistant is a selection post and the same is made on seniority cum merit. The case of the petitioner was not considered for promotion as the petitioner was not found fit because of the Annual Confidential Report for the year 1989 vide which he was declared not fit. It is further the case of the petitioner that no such Annual Confidential Report, whereby he was declared unfit for promotion was communicated to him before consideration for promotion and the same was communicated to him vide Annexure P-10 on 4.6.1991. Since the action of the respondent is illegal, arbitrary and against the well settled principles of law, hence this writ petition. The writ petition has been contested by the respondents by filing written statement stating therein that for promotion from the post of Clerk to the post of Assistant there are rules called the Cantonment Fund Servants Rules, 1937. The post of Assistant is a selection post and the criteria for promotion from the post of Clerk to the post of Assistant is seniority-cum merit and as per these rules, the appointment to the promotion post is made by the appointing authority on the basis of seniority list maintained for this purpose, subject to rejection of those considered unfit. It has been further submitted in the written statement that the petitioner was duly considered for the post of Assistant but due to his unsatisfactory record, he was not found fit and his case was rejected for promotion to the post of Assistant. The petitioner can have no grievance when CWP No. 10308 of 1991 3 his case was considered for promotion. An employee has a right of consideration only and not of promotion, where the criteria for promotion is seniority-cum-merit. It has further been mentioned that the seniority list on the basis of which, the petitioner is basing his claim has also been declared void and illegal vide judgment dated 29.9.1987 by Sub Judge Ist Class, Jalandhar in Civil Suit No.30/87/285 of 1986 titled as Kehar Singh and others Versus Cantonment Board, Jalandhar, whereby the respondents were directed to prepare a separate seniority list of Clerks and Tax Collectors and therefore, the petitioner can have no grievance at this stage that his juniors have been promoted on the basis of the seniority list (Annexure P-3), which has already been declared null and void. The petitioner has concealed this fact that vide resolution No.9 dated 29.10.1987, the respondents have prepared a separate seniority list of Clerks, Tax Collectors Grade I and II respectively from the knowledge of this Court and has placed reliance on the seniority list of 1985 which stands quashed by the Civil Court and therefore, the writ petition is liable to be dismissed. Learned counsel for the petitioner has vehemently argued that in the seniority list as on 1.6.1985, the petitioner was admittedly senior to respondent Nos.3 to 7. The promotion to the post of Assistant has to be taken on seniority-cum-merit basis. The petitioner was eligible to be promoted as Assistant when respondent Nos.3 to7 were promoted. There was no adverse entry in his Annual Confidential Report and therefore, he was entitled to be promoted. Even otherwise, his Annual Confidential Report for the year 1989 wherein the petitioner has been alleged to be not fit for promotion was communicated on 4.6.1991 when respondent Nos. 3 to 7 stood promoted as Assistants, no opportunity for representing against the said adverse remarks was given to the petitioner as the alleged Annual Confidential Report was never communicated to him at that time. Thus, the un-communicated Annual Confidential Report could not be used against him. On the other hand, learned counsel for the respondents has argued that the petitioner cannot claim promotion on the basis of a seniority list which CWP No. 10308 of 1991 4 has already been declared void and illegal. He has also brought to the notice of this Court the fact that no effective relief can be granted to the petitioner now as he has already retired from service on attaining the age of superannuation on 30.4.1997 as the petitioner had only a right of consideration for promotion. Learned counsel for the respondents has also taken a stand that the judgment and decree of the Civil Court dated 29.9.1987 in the case of Kehar Singh and others Versus Cantonment Board Jalandhar has culminated into RSA No.450 of 1991, which has been decided by this Court on 4.9.2008 vide which this Court has directed the respondents to prepare a fresh joint seniority list of all the categories of employees who were equated as Clerks and the department is taking steps to implement the said judgment and if on the basis of the fresh joint seniority list. If any grievance of the petitioner remains on the basis of such seniority, his case will be considered and necessary relief, if available, will be given. I have heard learned counsel for the parties and gone through the record of the case. As far as the proposition of law regarding taking into consideration the un-communicated adverse entries in the Annual Confidential Reports at the time of consideration for promotion of an employee is concerned, there is no dispute. It is well settled that un communicated adverse entries cannot be taken into consideration and the employee cannot be ignored from consideration. However, the facts of the present case are peculiar as in the present case, the seniority list as on 1.6.1985, the very basis of the petitioner’s claim is not existing as undisputedly the said seniority list was set aside by the Civil Court vide judgment and decree dated 29.9.1987 and this fact was not disclosed by the petitioner while filing this writ petition. Undisputedly, the seniority of the petitioner vis a vis the private respondents has remained in a state of efflux till his retirement, i.e., 30.4.1997 and therefore, it cannot be said whether the petitioner was senior to the private respondents and therefore, he had a right of consideration for promotion earlier to the private respondents. In the facts and circumstances, now at this stage, in my view, the CWP No. 10308 of 1991 5 petitioner cannot be given any effective relief as claimed in the writ petition. Moreover, the counsel for the respondents has very fairly stated that as per the directions of this Court passed in RSA No.450 of 1991 decided on 4.9.12008, department is taking effective steps to prepare a fresh joint seniority list of all such employees including the petitioner and in case any grievance of the petitioner survives on the basis of said seniority list as claimed in the writ petition, the same shall be considered and necessary relief will be granted if the petitioner is found entitled to on the basis of such consideration. Thus, in view of this fact, the writ petition has become infructuous and is dismissed accordingly. September 22, 2008 (RAKESH KUMAR GARG) nk JUDGE