IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 17786 of 2007 Date of Decision: 3.3.2009 Ms. Rajni Mahajan ---Petitioner Vs. State of Punjab and others ---Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Kamal Sehgal, Advocate for the petitioner. Ms. Charu Tuli, Sr. D.A.G, Punjab. Mr. Hari Om Sharma, Advocate for respondent no.3. *** PERMOD KOHLI.J (ORAL) The validity of order dated 8.11.2007 (Annexure P-8) ordering reversion of the petitioner is in question in the present writ petition. The following are the admitted factual aspects of the case. Petitioner as also the respondent no.3 were serving as Lecturers. The next promotion in the hierarchy of the service is to the post of Senior Lecturer. A post of Senior Lecturer in the discipline of Chemical Engineering became available on 31.5.2006. On the same day a Departmental Promotion Committee (for short the 'DPC') was ordered to be convened on the same day. However, no decision was taken and the decision was deferred. The DPC, thereafter, again met on 31.8.2006 without the agenda for the promotion of Senior Lecturer in the discipline of Chemical Engineering. Respondent no.3 filed CWP No. 17076 of 2006 seeking a direction for consideration of respondent no.3 for promotion to CWP No. 17786 of 2007 -2- the post of Senior Lecturer in Chemical Engineering. A notice of motion was issued in the said writ petition, however, the same is still pending. The department convened DPC on 15.3.2007 to consider the eligible persons for promotion to the available vacancy of Senior Lecturer in the discipline of Chemical Engineering. Petitioner as also respondent no.3 were eligible at the relevant time. On the basis of the bench marks fixed by the Committee and taking into consideration the seniority and other relevant factors the petitioner herein was ordered to be promoted on the same day. The petitioner joined the post on 17.3.2007. While the petitioner was serving as Senior Lecturer a show cause notice was issued for withdrawal of the promotion earlier granted to the petitioner. The petitioner seems to have submitted the interim reply to the show cause notice on 17.9.2007. On consideration of the reply of the petitioner the impugned order came to be passed on 8.11.2007. It is relevant to notice the reasons for withdrawing the promotion of the petitioner, which reads as under:- “ In view of the above decision, the ACRs of Smt. Rajni Mahajan for the year 1998-99 and 1999-2000 wherein adverse remarks were expunged but her overall grading was rated as Average. Accordingly, she did not fulfill the required bench marks. Based on the above, Shri Manoj Jindal is considered fit for promotion as Senior Lecturer but Smt. Rajni Mahajan in her interim reply to the show cause notice had stated that her final reply will be submitted later. But it is felt that there is no ground other than what she has stated in her reply to the show cause notice. Therefore, ignoring the show cause notice, Smt. Rajni Mahajan is reverted from the post of Senior Lecturer and Shri Manoj Jindal is promoted as Senior Lecturer against the post subject to the outcome of the decision of the CWP No. 17786 of 2007 -3- Hon'ble High Court in CWP No. 17076 of 2006.” From the aforesaid paragraph it is apparent that not only the promotion of the petitioner was withdrawn but the respondent no.3 was also ordered to be promoted against the resultant vacancy. From the above mentioned paragraph it also appears that the promotion of the petitioner was withdrawn on the solitary ground that the petitioner had earned average grading for the years 1998-99 and 1999-2000. The main ground on which the impugned order has been assailed in the present petition is that the competent authority has taken into consideration irrelevant material of grading for withdrawing the promotion which was withdrawn on the recommendations of the DPC. The Govt. has issued instructions for laying down the criteria for promotion. Instructions were issued on 29.12.2000 and on 16.9.2001. Under the first instructions dated 29.12.2000 the ACRs of the official are to be graded with the numbering system of evaluation in the following manner:- Outstanding : 4 marks Very good : 3 marks Good : 2 marks Average : 1 mark It also provides that the ACRs for the last 5 years are also to be taken into consideration for promotion. It is admitted case of the parties that the ACRs for preceding 5 years were taken into consideration while recommending the case of the petitioner for promotion. The department forwarded the service profile of the petitioner which includes the ACRs for the preceding 5 years, which are as under:- CWP No. 17786 of 2007 -4- Summary of ACRs for last five years 2001-2002 Average=1 2002-2003 Good =2 2003-2004 V.Good =3 2004-2005 V.Good =3 2005-2006 Outstanding=4 13 Marks It is also admitted position that the petitioner was at Sr. No.1 in the seniority list of Lecturers in the relevant discipline, whereas respondent no.3 was at Sr. No.2 in the seniority list. Instructions dated 6.9.2001 also provided that a candidate should earn minimum 12 bench marks for promotion to the 'A' category post which includes the post of Senior Lecturer. On the basis of the ACRs for the preceding 5 years the petitioner earned 13 marks, so was the position with respondent no.3, who had 14 bench marks as on the date of consideration and the seniority-cum-merit. The petitioner was promoted in the meeting held on 15.3.2007. The impugned order is totally based upon misconstruction of the rules, rather the period which was not within the reckoning has been taken into consideration to revert the petitioner. Learned counsel appearing for the respondent no.3 has vehemently argued that the petitioner was not eligible as on 31.5.2006 when the vacancy acrrued and the first meeting of the DPC was convened. According to him petitioner's ACRs for the period 2005-2006 had not been written and thus the petitioner had only 12 marks which were less than the bench marks of respondent no.3 and thus the petitioner was not eligible for promotion. I am not convinced with the aforesaid arguments. On the basis of the instructions the relevant period for consideration of the ACRs is five years preceding the date of consideration. Admittedly the consideration CWP No. 17786 of 2007 -5- took place on 15.3.2007 and the petitioner was fully eligible and qualified as on the said date and all his ACRs had been duly written. The petitioner has also earned outstanding in the last ACR. No rule or law has been shown which provides for the ACRs of preceding 5 years from the date of accrual of the vacancy or otherwise also writing of the ACRs is not in the hands of the official. It is for the authorities to write the ACRs. If for some reasons, ACRs are not written by the authorities, petitioner cannot be made to suffer for that. Non-consideration of the petitioner on that count itself amounts to violation of Article 14 and 16 of the Constitution. In any case the grounds urged by respondent no.3 in the reply cannot help or come to his rescue as promotion of the petitioner has not been withdrawn on these counts. The only ground on which the promotion has been withdrawn is the consideration of the ACRs for the period from 1998-99 and 1999-2000, which was not relevant at all for purposes of according consideration for promotion. It is settled law that the grounds in the impugned order cannot be supplemented in the written statement. Reference can be made to Mahinder Singh Gill's case AIR (1978) SC 851 In view of the factual and legal position, this petition succeeds. The impugned order is hereby set aside and consequently the petitioner shall be deemed to have been promoted to the post of Senior Lecturer w.e.f. 15.3.2007. Petitioner shall also be entitled to all the consequential benefits. (PERMOD KOHLI) JUDGE 3.3.2009 lucky