59 1 CWP No19688 of2009 1 Inthe HighCouit of Punjaband Haiyanaat Chandigarh Dateof decisionl 2042010 AniI Kumar Petitioner Versus PEC Universityof TechnologySector4 2 and others Respondents 0 0 CORAM HONBLE MR JUSTICE PERMOD KOHLI I 40 I Present MriS Saini Advocateforthepetitioner Mr RSBains Advocatefor respondent Nosl and 2 Z Mruresh MankotiaAdvocate for respondent Nos and4 2 PERMOD KOHLI J I The is aggrieved of the of respondent Z No and the recommendationsof respondent No for placinghim on the m panelof as also his own bytheespondents for mmm thepostof WorkshopInstructorvide the impugned order dated 2102009 Z Ll AnnexurePe51 stated the factual Ieadingto the Olingof l thepresentlritpetitionis noticed hereinafter de The petitioner was initiallyappointedas Model Maker on 061986 He was to the post of WorkshopMechanic with effectfrom 151993 and was funher promotedas Tec CateNll on 29112002 in the of Workshoj Vide subsequentorder N762 dated 0382009 the petitionerwas allowed benefit of ACP Scheme on of four years of service as Tech CateNll with Batra Amit 2014.04.22 10: 17 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 60 CWP No9688 of 2009 2 l61 effect from 291 2006 lnnexure Pe11 Next from the postof Tech CatemVllis to thepostof WorkshopInstructorwhich is governed and by Statutoryrules namely Punjab College Service Recruitment RuIes 1974 Minimum eligibility criteria Iaiddown under the rules is three yearsregularservice in a gradeafter on regularbasis This postisclassiOed as Classll to GroupvClSince the petitioner was substantivelyappointed L as Tecl CateNll on 291 2002 and thus on completion of three years 0 0 servicehe became eligible for promotionto the post of Workshop I Instructorin December2005A Promotion Committee was C5 I convenedin 2009 for accordingconsideration to the eligible candidatesfrom the feeding channelagainstthree postsbecomingvacant Z on account of retirementsof KuldeepSinghWml Joginder C RamW4 and SD Sharma W1 It is stated that out of these three posts I one post was reservedfor ScheduledCaste candidate and two were Z availablefor General Candidates The petitioner is admittedly a General Candidate The petitioners namewas also included in C0 the candidatesfor considerationfor to the postof 7 Z Instructoras is evident from theAgendaItem No 7 which was to Il beplacedbefore the PromotionCommittee The petitioner is shownat serial No7 in order of seniorityamongstGeneral Category it seems that thirteenomcials includingtwo candidates from ScheduIedCastes categorywere considered In the AgendaItem it is 4 mentionedthat IqbalSingh Charan Singh and Anil Kumar are in the feeder cadre on regularbasis and there is no omcial available in the Scheduled Caste category Thus Scheduled Caste is stated to be carried forward The petitionerhas placedon Batra Amit 2014.04.22 10: 17 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 61 4a CWP No9688 of2009 record Certificate of all these candidates and none of them have eamed adversecomments The DPC comprised of Ove members The DPC two persons namelyCharan Dass and Daulat Ram being flt for whereas no candidate beingavailableunder the ScheduledCaste categoryno was madelbal Singh IS senior to the petitioner but he was found not Otfor because of average gradingin the year 200304 as is evident from the recommendations P51 made by the DPC These 0 0 recommendationswere by the Director The petitioner was I communicatedvide Ietter dated 101 2009 Pe61 C5 I abouthis noneselectiondue to average ACRs The DPC while of two General Categorycandidates also Z respondentNo for Ill future The 0 of the DPC with regardto placementof respondent I No in the panelare also beingassailedin the presentwrit petition Z Thecontentionof the petitioner is that the petitioner has been ignoredbythe DPC bytakinginto considerationunecommunicated CO ACRs for theyear 200304 whereinthe petitioner was awarded average 1 em0 Z It is further the case of the petitioner that these ACRs could not Qm have been takeninto considerationbeingbeyondpreceding Ove years fromthe date of considerationbythe DPC As regardsthe 1 ofrespondent No is concerned thegrievanceof the petitioner is that the DPCmade its recommendations even when no third vacancy was 6ev available thusthe of respondentNo 4 was againsta future for which the petitionerhas a better and claim of as and when next DPC takes placeIt is further submitted that in such eventuality even theACRs for the periodof 200304 cannot Batra Amit 2014.04.22 10: 17 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 62 1l t41 r CWP No9688 of2009 4 come in the way of the petitionerThe have Iaid down for from one categoryto another These norms were notified by the Administration The relevant norms for are as followsle 62 l Confidential Rolls are the basic inputson the basis of which assessment is to be made by each m DC The evaluation of CRs should be fair justand Hencel 0 0 al The DPC should consider CIs for equalnumber I of years in respectof all officers considered for C5 I subjectto cl below bl The DPC should assess the suitabilityof the Z officersfor on the basis of their seivice record and with referenceto the Cs for 5 preceding I yearsHowever in cases where the requiredsetviCe IS Z more than5 years the DPC should see the record with reference to the Cs for the years equalto 00 the requiredqualifying service If morethan one C 7 Z hasbeen writtenfor a particular year all the CIs for the relevantyear shall be considered together as the C for one yearl cl XX Xx xx C dl XX XX XX el The DPC should not be guidedmerelyby the overallgradingif any that may be recorded in the CRs butshould make its own assessment on the basis of the Batra Amit 2014.04.22 10: 17 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 63 e CWP No9688 of2009 5 entries in the CRs because it has been noticed that some times the overall gradingIn a Rs may be inconsistent with the gradingunder vanous parameters or attributes viiilXX Xx Xx ixl XX Xx Xx m xl XX XX xx 0 0 xil Because furtheras per guidelines I approvedbythe Administration conveyed C9 I vide Ietterdated 992002 to the respondentNo1 para Nol ofwhich reads as under Z 1 1 Onlyclear vacancies arisingout due to death retirement resignation may be putbefore the DPC I This rule furtherIaysdown the criteriafor making L3 Z in respectto the Bench Mark The relevant conditions are contained in paragraph 61 which are as followse C0 63l The Iist of candidates considered by the DPC m7 Z and the overall gradingassignedto each candidate Om would form the basis for of the panelfor promotionby the DPC The followingprinciplesshould be observed in the preparation of the panel il Havingregardto the Ievelsof the poststo which Gaa promotions are to be made the nature and imponance of duties attached to the postsa bench mark grade would be determined for each categoryof posts for which promotions are to be made by selection method Batra Amit 2014.04.22 10: 17 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 64 1 r CWP No9688 of 2009 8 For all GroupC Group B and GroupA postsupto and excludinglthe Ievel of R37005000 excepting for induction to GroupA postsor services fromIowergroups the bench mark would be Good All officerswhose overallgradingis equalto or betterthan the bench mark should be included in the panelfor W to the extent of the number of vacancies They will be arrangedin the order of their inter se 0 0 seniorityin the Iowercategorywithout reference to the overallgradingobtained by each of them provided that C5 I each one of them has an overallequalto or betterthan thebench mark of Good Z From the procedureand the criteria prescribedunder the 0 referred to above it appearsthat for promotionormallyACRs I five years of the date of considerationshould form the basis for Z a candidate for It is further Iaiddown that minimum bench mark for should be good gradingof the ACRs QO the petitionerhad one average gradingin the year 2003m04 7 The DPC was held on 221020094hat means ACRs for the precedingOve yearse upto200405 should have been taken into consideration During these years the petitionerhad at Ieast good grading This fact is apparent from the respondentsreplyand the impugnedorder whereunder the petitionerhas been denied promotionfor havingthe average ACRs 1 duringthe period200304 which means that for subsequentyears the petitionerwas havinggood or above gradingThe relevant Ove years preceding the date of DPC considerationshould be 200405 200506 200607 200708 and 200809 and not 200304 ve Batra Amit 2014.04.22 10: 17 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 65 1 CWP No9688 of2009 e7 The contention of the petitioner is that an average grading IS an adversentry and the same havingnot been communicatedto him shouldnot have been taken into considerationfor purposes of according to the petitionerIt is settled Iegalpositionthat un adverse ACRs couid not be relied upon for consideration for In suppoitof this contention the petitioner has referredto 1 variousjudgments of this Court and the Honble SupremeCoun r In AbhijitGhosh Dastidar Vs Union of India 80rs Civil 0 0 No2270f 20081decided on 2 102008 Honble the Supreme I Courtheld that uncommunicateddown gradedentryof ACRs cannot be C5 I takeninto consideration for purpose of Promotion In this case also the had earlier earned very good repotsand thereafter good Z Takinginto consideration the goodgradingthe employeewas denied 2 0 Honble the SupremeCourt set aside the order of nona I and directedthat the be deemedto have been given Z from the date hisjuniorwas InDev Dutt Vs Union of India 80rs 2008 31SCT 429 ao the Honble Court has held that all kinds of entries in the 7 Z goodor adverse should be communicatedto the public confidential Qm The relevant obseivationsare containedin paragraph 14 and 20 ofthisjudgmentwhich are as followsle 14 Inour opinioneveiy entry and not merelya poor or adverseentrylrelatingto an under the State or an of the State whether in civil policeor other service exceptthe militatylmust be communicatedto him within a reasonableperiod andit makes no difference whether there is a bench Batra Amit 2014.04.22 10: 17 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 66 1 91 CWP No9688 of2009 a markor not Even if there is no bench mark non of an entIymay adverselyaHect the chances of or getting some other because when merit is being consideredfor some other benefitl a personhavinga good or average or Ufair entry 1 has Iess chances of beingselected than a r person havinga very goodor entry 0 0 20 Thus it is not onlywhen there is a bench mark I butin all cases that an entry vhether it is poor fair C5 average good or verygoodlmust be communicatedto a publicservant othetwise there is violation of the Z of fairness which is the soul of naturaljustice CC Even an entiy should be communicated I thatwouid boost the morale of the employeeand Slnce Z makehim work harder In view ofthe dictum of the aforesaidjudgments that not onlythe OO adverse ACRs but even goodand above rated ACRs are also to be 17 Z to the concerned 0Mcial to enable him to know abOut hiS On vinuesand weaknesses A similarview has been expressedby a own Iatest of the Honble SupremeCoun in the case of Indu BhushanDwivedi V State of Jharkhand and another 2010 31SCT 4e 343 wherein it is held as follows 18 The Iaid down in the above noted judgmentrepresents one of the basic canons of justice thatno one can be condemned unheard and no order affectingany person can be passedby a Batra Amit 2014.04.22 10: 17 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 67 44ee CWP No9688 of2009 public authoritywithout affordinghim reasonable to defend himself or representhis cause As a generalrule an authority entrustedwith the task of decidingiis between the paniesor empoweredto make an order which affects the rightsof any individualor visits him with civil consequences is bound 1 to act in consonance with the basic rules of natural rL justiceincluding the one that materialsoughtto be used 0 0 againstthe concerned person must be disclosed to him and he should be givenan to explainhis 5 positionThis unwrittenrightof hearingis fundamental to a just decision which forms an integralpartof the Z conceptof rule of Iaw This righthas its roots in the 0 notion of fair procedure I If the employeruses some material adverse to the Z employee about which the Iatteris not givennotice the final decision getsvitiatedon the groundof the violation m of the ruleof audi alteram partem 11 m2 Z The petitionerhas been deprivedpromotiononlyon account of 0 one ACR which was rated as average In the reply in paragraph4 it IS specificallypleadedthat even priorto years 20022003 the petitioners 1 gradingwas averaget is admittedpositionthat this periodis not relevant for consideration The rules governing the promotionalso deal with the questionof average ACRs Rule 6Al reads as underl 611 Government also desires to clear the misconceptionabout Average performance While Average may not be taken as adverse remarks in Batra Amit 2014.04.22 10: 17 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 68 P CWP No9688 of 2009 1 0 respectof an officer at the same time it cannot be regardedas to the officer as average should be regardedas routine and It is only that is above average and that is really which should entitle an officer to recognitionand suitable rewardsin the matterof Il L 0 U Under this rule even thoughthe average reportis not an I adverse report however at the same time the of the C5 I beyondaverage should be taken into consideration for promotior ln view of this rule average ACRs even ifnottaken as Z adverse are still requiredto be communicatedfor the simplereason that l an averagereponin an is capableof deprivinghim of C V I chances of and in keepingin view the spritof this rule the 0 4 4e Z gradinghas to be termed as adverse for purpos of ln viewof the Iaw Iaiddown in Dev Dutts case lpraland the rules referred QO to hereinabovethe petitioner was requiredto be communicated adversel 1m Z average gradingfor whatever years Without communication of such 0m the same cannot be pressedintoservice to deny to the Thus non of the petitioner on this groundalone is not sustainablein IawbeingviolativeofArticle 14 ofthe Constitutionof India Thispetitionhas to succeed on anothergroundas well raised by the petitioner It is admitted positionthat only two vacancies were availablebut respondentNo has been empaneledfor promotionfor a futurevacancy RespondentNo 4 is juniorto the petitioner It IS notthe case of the that the petitioneris not entitled to be Batra Amit 2014.04.22 10: 17 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 1 69 1 CWP No9688 of2009 11 l Y consideredforfuture vacancy and thus the rightof passes on tothe next candidate The still has the rightto be consideredfor future vacancy and in that eventuality his ACRs for the precedingve years are to be examined Ifhe earns goodor above ratingin the futureACRs le is bound to earn as ACRs for the relevant yearswould be and above By respondentNo the petitioners e chances for future have been not only cunailed rather CC This seems to be a device to overtakethe petitioner and thus to 0 0 deny him his rightof considerationfor against a future vacancy I it is a clearcase of violationof petitioners civil rightand arbitrary exercise t5 I of authoritybyDPC It amounts to violation of Anicle 14 of the Constitutionof India Z Promotion of No 3 and of No againstfuture vacancy vide impugnedorder dated I 2102009 AnnexureP51 is herebyquashed case IS t Z remittedback to theDPC to reconsider of the petitioner and Nos and 4 alongwith other candidates within zone of CO ignoringuIcommunicatedACRs of petitionerIf on such e7 Z considerationpetitioneris unable to earn he shall be Om for againstfuture vacancy as and when accrues along with other eligiblecandidates in accordancewith ruleslIo costs 44 2042011 PERMOD KOHLII BLS JUDGE l veO Notel VVhether to be referredto theReporter7YES DfA r lSrS 914 61 e 1 l Batra Amit 2014.04.22 10: 17 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document