Civil Writ Petition No. 6042 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 6042 of 1991 Date of decision: 14.09.2011 Mohan Lal ...Petitioner Versus The State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. H.N. Mehtani, Advocate for the petitioner. Mr. Sunil Nehra, Sr. DAG, Haryana for the State. ***** RANJIT SINGH J. The petitioner was working as Assistant Sub Inspector of Police and had approached this Court for his promotion to the post of Sub Inspector and for quashing the order, Annexure P-9 whereby the claim of the petitioner for promotion was rejected. After being recruited as Constable on 27.11.1962, the petitioner did lower school course in March 1974 and was promoted as Head Constable on 26.04.1974. The petitioner was confirmed as Head Constable on 20.06.1980. The name of the petitioner was shown in seniority list at serial No. 151 whereas respondents No. 5, 6 and 7 were shown junior to him being at Nos. 156, 157 and 222 respectively. The petitioner passed intermediate course in March 1985 and continued to perform his duties diligently. The petitioner, however, was suddenly conveyed certain adverse remarks relating to the years 1978-79, 1979-80, 1980-81, 1981-82 and 1982-83 on Civil Writ Petition No. 6042 of 1991 2 17.01.1985. The petitioner complains that all the adverse entries were totally illegal and contrary to the facts. The petitioner had filed a representation for expunging the above said adverse remarks on 16.07.1985. The petitioner claims that the Commandant, 2nd Battalion HAP, Madhuban vide his order dated 02.01.1986 expunged all the adverse remarks relating to the period from 1978-79 to 1980-82 except for the remarks endorsed in report for the year 1984-85. The order in this regard is annexed with the petition as Annexure P-3. As per the petitioner, after expunging the adverse remarks, the petitioner was graded as 'Good'. Thus, only one entry remained in his report for the year 1984-85 where he was described as careless in the parade ground on 01.07.1983. As per the petitioner, this entry cannot be treated as an adverse in any manner or does not reflect anything in regard to the integrity and conduct of the petitioner. While the representation filed by the petitioner was under consideration, the petitioner was promoted as Assistant Sub Inspector on 29.10.1985. Since the adverse entries in the Annual Confidential Reports of the petitioner except for one year were expunged, the petitioner made an representation to reconsider his case for promotion as Assistant Sub Inspector and for bringing his name on the list 'D' w.e.f. 12.04.1985. This was the date on which his batch mates were brought on list 'D'. The petitioner claimed promotion for the post of ASI from the date his juniors were so promoted. The representation filed by the petitioner was replied on 20.01.1987 and the name of the petitioner was brought on list 'D' Civil Writ Petition No. 6042 of 1991 3 w.e.f. 12.04.1985 instead of 30.09.1985. The order was also passed promoting the petitioner as officiating Assistant Sub Inspector w.e.f. 16.06.1985. It is stated in the petition that some of the officers were promoted as Sub Inspector. Accordingly, the petitioner filed representation on 17.02.1987 that he be also given due promotion to the post of Sub Inspector and his name be brought on List 'E' w.e.f. 02.08.1986. The petitioner claims that the representation was accepted and it was ordered that the name of the petitioner was brought to the promotion list 'E' we.f. 02.08.1986. The promotion of the petitioner as officiating Sub Inspector was also directed w.e.f. 06.08.1996. The petitioner alongwith respondents No. 5 to 7 was also sent for Upper School Course starting w.e.f. 01.04.1987. The petitioner and respondents No. 5 to 7 were not confirmed as Sub Inspectors but all were sent for the said course as Assistant Sub Inspectors. After completion of the course, the petitioner was posted as Assistant Sub Inspector in 2nd Battalion, HAP Madhuban alongwith respondents No. 5 to 7. The State Government disbanded 6th Battalion of HAP in December, 1987 and the petitioner and respondents No. 5 to 7 allocated to the Districts in Haryana and were posted in the districts as Assistant Sub Inspector. After being posted in Rohtak, the petitioner was transferred to Sirsa District in Hissar range. There respondents No. 5 to 7 were also posted. There the petitioner learnt that respondents No. 5 to 7 were promoted as Sub Inspector in November, 1988. The petitioner, thereafter, met respondent No. 2 and explained his grievance and sought promotion to the post of Sub Civil Writ Petition No. 6042 of 1991 4 Inspector, Hisar Range. At that stage, the petitioner was apprised that his character roll had not received and he would be considered for promotion on receipt of character roll. The petitioner again met respondent No. 2, who apprised him that the decision in regard to promotion is to be taken. The petitioner again made a grievance on the ground that his juniors were promoted whereas the petitioner had not been so promoted. Respondent No. 2, however, rejected the claim of the petitioner on 05.02.1991 on the ground that 70% of the ACRs of the petitioner for the last 10 years were not good and, thus, he cannot be promoted as Sub Inspector. The petitioner has challenged the order being illegal and arbitrary and has prayed for promotion to the rank of Sub Inspector from the date his juniors were so promoted. Counsel for the petitioner, thus, submits that the impugned order is totally illegal as the petitioner had requisite record of the service to show once the adverse ACRs had been quashed. Written statement on behalf of respondents No. 1 to 4 is on record. In the reply, the respondents have denied the averment made by the petitioner that he had been performing his duty diligently and honestly. Reference is made to the adverse remarks relating to the year from 1978-79 to 1984-85. It is not denied that the petitioner had made representation against the remarks endorsed in his ACRs and order dated 02.01.1986 was passed. The averment that all the reports except one were expunged is denied. It is stated that only adverse remarks for the year 1978-79 was treated as 'No report' and consequently was expunged. All the adverse remarks were maintained vide order dated 27.12.1985, Annexure R-1 and still Civil Writ Petition No. 6042 of 1991 5 stand in the service record of the petitioner. It is also denied that the grading of the petitioner is rated 'good', as averred by him. Plea is that only entry for the year 1979-80 was expunged. The respondents would also dispute if the entries in the ACRs for the year 1984-85 cannot be treated as adverse. As per the respondents, mere entry in the List 'E' would not confer any right of selection to the petitioner for promotion. In this regard, reference is made to Rule 13.1 of Punjab Police Rules. It is otherwise stated that the case of the petitioner was duly considered for promotion but he could not be promoted, as the petitioner did not have 70% good reports in ACRs. The petitioner was, accordingly, directed to do better. The respondents, thus, plead that there is no merit in the pleas of the petitioner and the writ petition be dismissed, accordingly. On the basis of rival submissions made before me, the issue that would arise for consideration is whether the adverse remarks recorded in the ACRs of the petitioner were expunged vide order Annexure R-1, copy of which is also on record as Annexure P-3. Mr. Mehtani would read Annexure P-3 to show that it clearly indicates that all the reports for the years 1978-79, 1979-80, 1980- 81, 1981-82, 1982-83 and 1984-85 were expunged. On the other hand, Mr. Nehra seriously disputes this fact and states that only one report i.e. for the year 1979-80 was termed as 'No report', as per Annexures R-1 or P-3 and not that the other ACRs of the petitioner were also expunged. I have minutely examined the order Annexures R-1 or P-3 with an aim to clearly understand the order, I had called for the original copy of the order passed and I have perused the file Civil Writ Petition No. 6042 of 1991 6 alongwith the notings. It can be said that counsel for the petitioner is not right in reading the order Annexure P-3 as stated by him. It appears that the counsel has not understood the distinction between the adverse remarks, which as per instructions were required to be conveyed and the average ACR which were then not being considered adverse. Annual Confidential Report is overall assessment containing various shades of recommendation whereas adverse remarks may be made in any particular quality in the ACR. The reports of the petitioner for all these years were as under:- Year Adverse Remarks 1978-79 “Average Type” 1979-80 “His integrity is doubtful while posted as incharge, fruit-shop run by the welfare, there are numerous complaints about him. Work not satisfactory.” 1980-81 “Average” 1980-81 “Just an average one” 1981-82 “An average HC” 1982-83 “Continues to be same” 1984-85 “He showed carelessness in parade ground ground on 1-7-1983 while he was deputed as weapon Instructor. Otherwise a good experienced Head Constable.” It would be noticed that in the report for the year 1978-79, the petitioner was assessed as 'Average Type'. In the report for the year 1979-80 his integrity was doubted. Again, in the report for the Civil Writ Petition No. 6042 of 1991 7 years 1980-81, 1981-82 and 1982-83, the petitioner was just assessed as an average officer. Again some adverse remarks were endorsed in the Annual Confidential Reports for the year 1984-85 where it was mentioned that he showed carelessness in the parade ground on 01.07.1983. Whether the average report was required to be communicated to the petitioner on the ground that it was an adverse report may be an incidental issue arising in this case. Certainly, if any adverse remarks are made in the ACRs, that is required to be conveyed to an employee. There may not be a need to convey average grading being not considered adverse at the relevant time. The background in which order Annexure P-3 was passed can very well be made out from the notings, which is also perused by me. After making mention to the reports as noted above, it was recorded that the circulated instructions regarding ACRs provide that no notice should be taken of the adverse remarks if these had not been conveyed. It is also recorded that where competent authority does not convey adverse remarks to the concerned officers, the Commission will be treated as discriminatory action in this regard. The average report till then were not being treated as adverse. Treating the average report as adverse was in view of the instructions issued on 16.08.1983. It is clearly recorded in the note that before issuance of instructions dated 16.08.1983, the average remarks were not being communicated to the concerned officer. It was then noticed that the remarks for the year 1979-80 could not be considered against the petitioner as these were not conveyed within the appropriate time and it would not be fair to take note thereof after Civil Writ Petition No. 6042 of 1991 8 conveying these after 5 years. The opinion was to take this as 'No report'. So far as report for the year 1984-85 is concerned, comments of the reporting officer was obtained. Thereafter, order, Annexure P-3 was passed. Thus, the clear intention was that only one report was required to be conveyed to the petitioner where some adverse remarks were endorsed. This report was for the year 1979- 80. Reading Annexure P-3, in this context, would clearly show that there was no requirement of conveying the average assessment made in respect of the petitioner in all these reports where the petitioner was so assessed as average officer. In view of this and reading of Annexure P-3/R-1 would clearly show that only report for the year 1979-80 was treated as no report and the remaining reports were not expunged. This is the stand reflected in the reply. Accordingly, the submission that all the reports were expunged vide Annexure P-3 cannot be accepted and this submission is not factually correct. The order may not be happily worded to clearly indicate the same but the order when read alongwith the record, which is perused by him, would leave no hesitation in mind to hold that the intention was only to set aside that report contained adverse remarks, which had not been conveyed but not those reports where assessment of the petitioner was average. As a result, it is seen that the petitioner certainly did not have 70% good record of service to earn his promotion. The petitioner was, thus, rightly not promoted in view of his record of service. The submission by the counsel for the petitioner that the Civil Writ Petition No. 6042 of 1991 9 petitioner had been promoted as ASI after expunging the remarks would also not be much relevant. The promotion to the post of Assistant Sub Inspector may be on different consideration than for promotion to the post of Sub Inspector. The action of the respondents does not suffer from any illegality, which would call for interference in exercise of writ jurisdiction. The writ petition is, accordingly, dismissed without being any merit. September 14, 2011 ( RANJIT SINGH ) rts JUDGE