IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/S) NO. 1042 of 2009 Satish Kumar (Staff No. 1561642) …………..Petitioner. Versus State of Uttarakhand and others ……Respondents. Present: Mr. Lalit Kumar, Advocate for the petitioner. Mr. B.P. Nautiyal, Advocate for respondent nos. 2 to 5. Hon’ble Sudhanshu Dhulia, J.(Oral) Heard Mr. Lalit Kumar, Advocate for the petitioner and Mr. B.P. Nautiyal, Advocate for respondent nos. 2 to 5. Counter affidavit filed on behalf of respondent nos. 2, 3, 4 and 5 and the rejoinder affidavit filed by the petitioner today in the Court is taken on record. The petitioner is an employee in Bharat Heavy Electricals Limited (from hereinafter referred to as BHEL). He is working in the Supervisory Cadre. Now there are various grades in the Supervisory Cadre, in BHEL, which are different grades. These grades stretch from grade S-1 to grade S-7. BHEL has framed Rules for promotion from one grade to another. These Rules are known as “Promotion Policy and Rules”. As per Rule 6, one of the criteria on which the Departmental Promotion Committee (from hereinafter referred to as DPC) is constituted to promote persons working in one grade to another. 75 per cent of the persons working in S-3 are promoted to S-4 in one DPC. For this a DPC was constituted and the DPC was to consider various factors for promoting a person from S-3 to S-4 grade. The marks had to be given under the following heads: Qualification 10 marks ACR Rating (year 2006-07) 20 marks, 2 ACR Rating (year 2007-08) 20 marks ACR Rating (year 2008-09) 20 marks Experience 10 marks. Sub total 80. Apart from the above, 20 marks are again given for a criteria, which the Department describes as “suitability”. The petitioner has filed along with the Misc. Application a document supplied to him through an application moved by him under the Right to Information Act, which shows the marks obtained by each of the candidates and the break ups given to each such candidates. This is annexed as Annexure-SA 1 to the Supplementary Affidavit. The veracity of this document has not been challenged by BHEL. An examination of this document shows that whereas the petitioner has got for the year 2006-07 “very good” entry with 11 marks, for the year 2007-08, he has got “outstanding” entry with 17 marks and for the year 2008-09 “outstanding” entry with 18 marks. It also appears from a perusal of the record that from the recent years there were more marks than previous years, for e.g. inasmuch as if one has been given outstanding for the year 2008-09 then he would get 18 marks out of 20, and if one has been given outstanding for the year 2007-08, he would get only 17 marks. The sub-total of the petitioner out of 80 marks was 55. Now persons who have got sub total much less than the petitioner have been selected. The difference is created by the marks given by DPC after the Sub-total has been calculated for a criteria known as “suitability”. A perusal of the mark-sheet would show that whereas DPC has awarded even 19, 18 and 17 mark and the lowest being 8 marks to other candidates, who have all been selected, 3 the same DPC has awarded only 2 marks to the petitioner. On the last occasion, this Court had pointedly asked the counsel representing BHEL as to what were the governing guidelines before DPC on which they could award marks to a candidate under the column “suitability”. In the counter affidavit filed by BHEL, this factor has not been explained. It is an admitted case of the parties that none of the candidates appeared before the DPC. In other words, there was no viva voce. Therefore, what were there before DPC were only the past service records of the candidates, including the petitioner. Logically therefore, apart from judging the candidates on the basis of their past performance, there was no other objective criteria on which a candidate could be measured. After being asked by this Court as to explain the criteria of “suitability”, the counsel for BHEL filed an affidavit before this Court, in which he has tried to explain what “suitability” is. In paragraph 4, where it is done, is reproduced below:- “4. That in reply of the amended prayer added in writ petition where in a prayer to strike down the allotment of 20 marks for suitability by declaring the same as illegal, arbitrary, ultra-vires and unconstitutional. It is being respectfully submitted that the said prayer is not only impermissible but also against the rules and promotion policy applicable in the case of promotion of the petitioner. As per rules and procedure it is provided that: “Promotion will be considered by Departmental Promotion Committees (DPC) to be constituted at the unit level for various grades falling under the purview of the Unit Management. The criteria adopted by the DPC for considering promotion will broadly include factors such as qualifications, performance, general suitability and potential for higher responsibility.” 4 As it is evident, the paragraph explains nothing as to what were the guidelines for adjudging a candidate on the criteria of “suitability”. As such nothing has been produced before this Court to show that there was any application of mind on behalf of DPC while giving marks on “suitability” on which the candidate was measured. It is therefore a considered view of this Court that apart from the past service record of a candidate there was nothing before DPC to measure or judge a candidate. Even under the bracket of “suitability”, what could be seen were the past record of the petitioner. It is again nobody’s case that there was anything adverse in the service book of the petitioner. Therefore, awarding the petitioner only “2” marks on “suitability” appears to be arbitrary, particularly when the petitioner seems to have been singled out for this, as all others have scored very high. This Court has been informed that during the pendency of the writ petition, the petitioner has also reached the age of superannuation and has retired from service on 24th September, 2009. The Court holds, on the basis of what has been stated above, that promotion from grade S-3 to grade S-4 was denied to the petitioner on no just criteria but on wholly arbitrary reasons. After appreciating the records of the petitioner, this Court is of the opinion that awarding “2” marks to the petitioner under the criteria of “suitability” was wholly arbitrary. From the records, it is clear that the candidate having one more mark than the petitioner has been promoted. This Court hereby holds that the petitioner shall be treated to have been promoted 5 from S-3 to S-4 and shall be given all consequential benefits thereof. The writ petition stands allowed. No order as to costs. (Sudhanshu Dhulia, J.) 9.5.2011 Rathour