HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 281 of 2010 (S/B) Ashok Kumar Gairola. ……..Petitioner Versus State of Uttarakhand and another. …….Respondent Mr. I.P. Gairola, Advocate for the petitioner. Mr. H.M. Raturi, Standing Counsel for the State/respondents. Dated: January 5, 2011 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Barin Ghosh,C.J. (Oral) No counter affidavit has been filed. Accordingly, it has not been disputed that the confidential remarks given to the petitioner for the years 1999-2000 to 2008-2009 were not communicated to the petitioner. Those remarks were considered by the Departmental Promotion Committee for the purpose of ascertaining suitability of the petitioner for promotion. On the basis of such remarks, in accordance with law made by the State, Departmental Promotion Committee gave marks and on such marks, petitioner did not come within merit for promotion. But at the same time, many a juniors to the petitioner were promoted. According to law thus made, a remark “Achchha” i.e. satisfactory, earns no marks. Petitioner obtained Achchha in the years 2000-2001, 2004-2005 and 2005-2006. As a result, petitioner scored no marks for the said three years. Petitioner also obtained ‘good’ and ‘very good’ remarks for some of the years. He got only one remark of ‘outstanding’. If the petitioner had received ‘outstanding’ remarks for all the years, it was not a requirement to let the petitioner to know about the 2 same, inasmuch as by obtaining ‘outstanding’ remarks, he achieved the best possible and, accordingly, became entitled to the highest marks. However, when the petitioner obtained ‘satisfactory’ or ‘good’ or ‘very good’ remarks, he should have been told that he has been adjudged ‘satisfactory’ or ‘good’ or ‘very good’ and, accordingly, he has not been able to achieve the best and that, he should thrive to do best for future progression in his life. A similar matter of the same department has been dealt with by us in writ petition no.115 of 2010 (S/B). While dealing with the matter, we have also taken note of the judgment of the Hon’ble Supreme Court rendered in the case of Dev Dutt Vs. Union of India & others (2008)8 SCC 725. 2. We, accordingly, conclude the present matter and hold that the petitioner, having not been told his achievement during the relevant years and, accordingly, having not been told that there is still scope for improvement, petitioner was put to a disadvantageous position when his case for promotion was considered and, accordingly, petitioner was handicapped for no fault on his part, as he was not told that there is scope of improvement in his achievement. We, accordingly, quash the decision not to select the petitioner. Let a Departmental Promotion Committee be constituted for reconsideration of the case of the petitioner. The Departmental Promotion Committee, however, cannot look into any of those remarks by which the petitioner had been awarded ‘satisfactory’. On the average of the marks obtained on the remaining remarks, including the remarks for the year 2006-2007 to the effect ‘very good’, the Departmental Promotion Committee shall assess 3 whether petitioner has scored marks equivalent to the marks obtained by his junior already promoted, and to make a recommendation to promote the petitioner. 3. Let the above exercise be completed as soon as possible, but not later than three months from the date of service of a copy of this order upon respondent no.1. (V.K. Bist, J.) (Barin Ghosh, C.J.) 05.01.2011 NCM: