CWP No. 3725 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 3725 of 2009 Date of Decision 02.06.2011 Tarsem Chand -----Petitioner Versus The Chandigarh Administration and others ---Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. N.D. Achint, Advocate for the petitioner. None for respondent Nos. 1 and 2. 1. To be referred to the Reporters or not? yes 2. Whether the judgment should be reported in the Digest? yes M.M. KUMAR, J. 1. The petitioner has remained unsuccessful in persuading the Chandigarh Bench of the Central Administrative Tribunal, Chandigarh (for brevity 'the Tribunal') where he prayed for promotion from the post of Safaiwala- cum-Chowkidar to that of Peon because the Tribunal found that according to the criteria adopted for promotion, the work and conduct of the employee is seen from his ACR. If 50% ACRs out of last 5 reports are found 'Good' then subject to fulfillment of the requirement of the seniority, such employee is recommended for promotion by the DPC. The Tribunal has recorded the aforesaid view after perusing the CWP No. 3725 of 2009 -2- minutes of the DPC held on 11.02.2005, which is discernible from the following paras of its judgment which reads thus: “8. After perusal of the pleadings and affidavit of the respondents, it is revealed that promotion to the post of Group 'C' and 'D' posts are made as per provisions of Service Regulations of 2001 notified by Chandigarh Administration. Vide Annexure R/3, dated 7.11.2000, Chandigarh Administration had decided to record Annual Confidential Reports (ACRs) of Class IV employees. At the time of promotion, work and conduct of employees is seen from their ACRs and if 50% of ACRs out of last 5 reports are found 'Good' then on the basis of seniority, the employee is recommended for promotion by DPC. The case of applicant along with two other officials was considered on the basis of seniority and ACRs. Since, the applicant had not earned 50% Good ACRs, he was not found fit for promotion by the DPC. No doubt preference is to be given to the senior employee but only if he has earned 50% ACRs as 'Good' out of the last five reports. Letter of appointment of applicant, CWP No. 3725 of 2009 -3- Annexure A/1, also envisages that his service conditions are to be regulated by rules and regulations applicable to the temporary employees of the Union Territory of Chandigarh. 9. We have also perused minutes of DPC held on 11.2.2005 in which the case for his promotion to the post of Peon (Group 'D') was considered. After considering the service record/ ACRs of the applicant and two other employees, the name of respondent No.4 was recommended by DPC for promotion to the post of Peon. Thus, we find no infirmity in the action of the respondents while promoting Respondent No. 4 to the post of Peon and ignoring the applicant whose record was not found to be up to the mark. 10. For the reasons mentioned above, this OA is found to be devoid of merits and the same is dismissed with no order as to costs. 2. Brief facts of the case may first be noticed. The petitioner was appointed as Safaiwala-cum-Chowkidar on 09.05.1989 and he belongs to reserved class of citizen being CWP No. 3725 of 2009 -4- SC caste. On 15.09.2004, two posts of peon were advertised in the English daily 'The Tribune', which were to fill up through promotion quota. The petitioner had duly applied against the aforesaid post but his junior, namely, Shri Shamsher Singh has been promoted. The representation dated 11.08.2005 made by the petitioner for promotion to the post of peon was disposed of on 19.01.2007. Accordingly, he filed an Original Application before the Tribunal, which has been dismissed on 03.10.2008. 3. The stand of the respondent before the Tribunal as well as before this Court is that the service conditions of the Group 'B' and 'C' posts including Sweeper and Peon are regulated by Regulations framed under Section 24-B(ii) read with Section 24-B(2) of the Consumer Protection Act, 1986 (for brevity 'the Act'), which are known as Chandigarh State Commission and District Forum, Union Territory, Chandigarh Group ('C' & 'D') Service Regulations, 2001 (for brevity 'the 2001 Regulations'). The 2001 Regulations were silent with respect to the method of appointment by promotion to Group 'D' Post, yet a promotion to higher post would involve an assessment of the past record of service. It has also been pointed out that the respondent-Administration follows the Rules and Regulations framed by the Punjab Government. In that regard reliance has been placed on the CWP No. 3725 of 2009 -5- circular letter dated 10.01.2000, envisaging that an employee would be eligible for Assured Career Progression Scheme (for brevity 'the ACP Scheme'), if his overall service record was adjudged as 'Good'. The yardstick of assessment of past service record cannot be given a go by. Therefore, the petitioner cannot be granted benefit of the ACP Scheme because he did not have 50% good service record in the year 2005 and the benefit could be granted only in 2008 instead of 1998 after his service record was assessed to be good. It has been urged that the record of the petitioner for the last five years would show that he has less than 50% of good reports. 4. The short issue which arises for determination in these proceedings is whether the petitioner deserves to be promoted with less than 50% of good ACRs for the last five preceding years or respondent No.3 who fulfilled the criteria would become entitled to promotion. 5. After hearing learned counsel for the petitioner, we are of the view that the instant petition is devoid of merit and is, thus, liable to be dismissed. It is appropriate to make a reference to the minutes of the meeting of the DPC which was comprised of a former Judge of this Court namely, Hon'ble Mr. Justice K.K. Srivastava being President State Commission, Major General S.P. Kapoor, Member, State Commission and Shri M.S. Saini, Under Secretary (Home) Member of the DPC. The DPC has met CWP No. 3725 of 2009 -6- on 11.02.2005 to consider the promotion on the vacant post of Peon (Group 'D') in the pay sacle of ` 2520-4140. The name of the petitioner along with S/Shri Fakir Chand and Shamsher Singh were considered. The DPC opined 'after carefully considering the service record / ACRs, the DPC recommends the selection of the following official against one vacant post of Peon, namely, Sh. Shamsher Singh, Sweeper-Cum-Chowkidar'. 6. It has remained undisputed that the service record of the petitioner was average/ satisfactory when compared to that of selected candidate. The position of five reports from 01.01.2000 to 31.12.2004 in respect of the petitioner and the selected candidate are reproduced hereunder in a tabulated form: Year of Annual Confidential Report Tarsem Chand, Sweeper-cum- Chowkidar (joining date 9.5.1989) Shamsher Singh, Sweeper-cum-Chowkidar (joining date 4.7.1997) 1.1.2000 to 31.12.2000 Just Satisfactory Not written 2001 Satisfactory Very Good 2002 Average Good 2003 Average (also censured for negligence in performing duty) Average 2004 Good Very Good 7. A perusal of the aforesaid table would show that the petitioner had only one good report and rest of the reports were either satisfactory or average. The petitioner has also censured for negligence in performing duty in the year 2003. Therefore, it cannot be concluded that when CWP No. 3725 of 2009 -7- considering the case for promotion to Class 'D' post, no reliance could be placed on ACRs, in the absence of guidance available in the Regulations. Moreover, the guidance is available in the instructions dated 10.01.2002 (R-2/1,2). The aforesaid circular issued by the Punjab Government and duly adopted by the respondent- Administration would rely upon para 4 of the earlier circular issued on 25.09.1998. The aforesaid para being relevant to the controversy in hand deserves to be considered and the same reads as under: “Placement in higher scale and proficiency steps up under this policy shall be granted only to those employees whose overall services record is adjudged as 'good'. If a departmental test is prescribed or acquisition of higher qualification is a pre- requisite for promotion to the higher level than only those employees who clear such test or acquire such qualifications would be eligible for benefits under this Scheme.” 8. It is, thus, evident from perusal of the aforesaid para that even the benefit of the ACP Scheme is to be given to those employees whose overall services record was adjudged as 'good'. In other words, the criteria of 50% adopted by the DPC for adjudging the suitability of the CWP No. 3725 of 2009 -8- petitioner for promotion cannot be regarded as arbitrary or violative of Article 14 and 16(1) of the Constitution. Therefore, we are of the view that the opinion expressed by the Tribunal does not suffer from any legal infirmity warranting interference of this Court. In our view the Tribunal has adopted correct approach and the same deserves to be upheld. 9. Accordingly, the writ petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE June 02, 2011 Atul