Punjab-Haryana High Court

Santosh Kumari vs State Of Punjab And Others ... on 31 May, 2011

Author:
Permod Kohli

Bench:
Permod Kohli

IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH

1. CWP No. 17450 of 2010 Date of Decision: 31.5.2011.
Santosh Kumari --Petitioner
Versus
State of Punjab and others --Respondents
2. CWP No. 13027 of 2010
Harbhajan Singh --Petitioner
Versus
State of Punjab and others --Respondents
3. CWP No. 12225 of 2010
Jagtar Singh --Petitioner
Versus
State of Punjab and others --Respondents
4. CWP No. 16723 of 2010
Dharam Paul --Petitioner
Versus
State of Punjab and others --Respondents
5. CWP No. 5578 of 2010
Faqir Chand --Petitioner
Versus
State of Punjab and others --Respondents
6. CWP No. 12903 of 2010
Bhagwant Singh --Petitioner
Versus
State of Punjab and others --Respondents
7. CWP No. 16800 of 2010
Surinder Pal --Petitioner
Versus
State of Punjab and others --Respondents

CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI.

Present:- Mr. Kapil Kakkar, Advocate.

Mr. R.K. Arora, Advocate.
CWP No. 17450 of 2010 -2-

Mr. Puneet Gupta, Addl. A.G., Punjab.

***

PERMOD KOHLI.J (ORAL)

In view of the identical facts and common questions of law,

these petitions are being disposed of by this common order.

All the petitioners are working in the Education Department of

the State of Punjab. Petitioners in CWP Nos. 17450 of 2010 and 16723 of

2010 are working as Head Masters, whereas all other petitioners are

working as Lecturers in different disciplines. All the petitioners are

aggrieved of their non-promotion to the post of Principal. In some of the

cases the claims of the petitioners have been rejected/ignored solely on the

ground that they did not achieve the minimum required bench marks for

promotion to the post of Principal. It is admitted case of the parties that

persons junior to the petitioners from the cadre of Head Masters as also

Lecturer have been promoted to the post of Principal, hence, the grievance

of the petitioners in these petitions.

Since the legal issues predominantly decide the controversy in

these petitions, hence the facts of each case are not being dealt with in

details.

Indisputed facts are that there are more than 1500 sanctioned

posts of Principals in Govt. Schools in the State of Punjab and hundred of

posts are lying vacant, some even for a decade. The State-respondent had

earlier expressed its inability to make promotions in view of some directions

from this Court for a considerable period. Later the State was permitted to

make promotions.

Promotion to the post of Principal is governed and regulated by

the statutory rules framed under proviso to
Article 309
of the Constitution

CWP No. 17450 of 2010 -3-

of India namely Punjab Education Service (School & Inspection) Group-A

Service Rules, 2004 (hereinafter referred to as the 2004 Rules). These rules

were notified vide notification dated 22.12.2004. Rule 5 deals with the

method of appointment etc. and reads as under:-

"5. Method of appointment, qualifications and experience-

(1) Appointment to a post in the service shall be made in the manner as

specified against that post in Appendix 'B'.

Provided that if, no suitable candidate is available for

appointment by promotion and by direct appointment, then appointment to

the Service shall be made by transfer of a person holding a similar or an

identical post under a State Govt. of Govt. of India.

(2) No person shall be appointed to a post in the service unless

he possesses the qualifications and experience as specified against that post

in Appendix 'B'.

(3) Appointment to the service by promotion shall be made on

seniority-cum-merit basis, but no person shall have any right to claim

promotion on the basis of seniority alone:

Provided that promotion to the post of Director shall be made

on merit-cum-seniority basis."

The post of Principal is one of the posts borne on the cadre of

the 2004 Rules. By virtue of sub rule (2) of Rule 5, appointment to a post in

the service is to be made in accordance with the qualifications and

experience as specified against that post in Appendix 'B'. Post of Principal

finds mention at Sr. No.3 of Appendix 'B' and is equivalent to some other

posts of the service. These posts are to be filled up 100% by promotion

from three feeding channels. Relevant extract from Appendix 'B' is

CWP No. 17450 of 2010 -4-

reproduced hereunder:-

Sr. Designation of the post Percentage for Qualification
No. appointment and
by experience for
appointment
by
Direct Promotion Direct Promotion
appointment appoint
ment.

1 2 3 4 5 6

3 District Education Officer - Hundred percent - (a) Fifty-five
(Secondary Education), percent from
District Education Officer amongst the
(Elementary Education), Lecturers,
Principal, District Institute of working under
Education and Training, the control of
Principal, Secondary Schools, the Director
Assistant Director, Evaluation who have an
Officer, Subject Matter Expert experience of
(State Council of Education working as
Research & Training), Survey such for a
Officer, Deputy Circle minimum
Education Officer, Deputy period of
District Education Officer, seven years;
District Science Supervisor,
(b) Thirty
Senior Lecturer, Senior
percent from
Guidance Counsellor,
amongst the
Agricultural Advisor, Co-
Head
ordinator (Population
Masters/Mistr
Education), Officer on Special
esses, working
Duty (Works and Planning),
under the
Officer on Special Duty
control of the
(Scholarship) and Co-
Director, who
ordinator.
have an
experience of
working as
such for a
minimum
period of
seven years;
and
(c) Fifteeen
percent from
amongst the
Vocational
Lecturers/
Masters/
Mistresses,
working under
the control of
the Director,
who have an
experience of
working as
such for a
minimum
period of
seven years.

For purposes of the present petitions only two channels of

promotion are relevant i.e. Lecturer and Head Master/Mistress. 55% of

CWP No. 17450 of 2010 -5-

promotional posts of Principal are to be filled up from amongst the

Lecturers working under the control of the Director, who have an

experience of working as such for a minimum period of 7 years, whereas

35% of such posts are required to be filled up from amongst the Head

Masters/Mistresses with experience for a minimum period of 7 years.

All the petitioners are eligible for such promotion being

possessed of requisite experience. They are also under the zone of

consideration on the basis of their seniority as admittedly persons junior to

them have been promoted to the post of Principal. The petitioners have

been denied promotion only on the ground of not achieving the minimum

bench marks as prescribed under the Govt. Instructions dated 6.9.2001

(Annexure P-14) in CWP No.17450 of 2010. The relevant Govt.

Instructions are relied upon by the respondents in the reply filed in CWP

Nos. 12225, 12903 and 13027 of 2010. These instructions relate to setting

up of departmental promotion committees for considering cases of

promotion to Class-I and Class-II posts (now Group A and Group B posts).

The extract relevant for purposes of the present petitions is reproduced

hereunder:-

" (c) It has been decided to retain the numbering systems of
evaluation of A.C.Rs as contained in the instructions dated 29.12.2000
which is as under:-

Outstanding : 4 marks
'Very Good' : 3 marks
'Good' : 2 marks
'Average' : 1 mark

A.C.Rs for the last 5 years are to be taken into consideration for
promotion. The criteria for promotions will be as under:-

1. The case pertaining to the promotion of Head of Departments
would be decided strictly on the basis of merit-cum-seniority.

CWP No. 17450 of 2010 -6-

The minimum marks for promotion for such posts would be
'very good'. The marking system adopted earlier in instructions
dated the 29th 2000 would be followed and a minimum of 15
marks, would be required to be considered as Very Good. The
Officer who is graded as outstanding would supersede the
officer graded as Very Good.

2. For promotion to posts falling in Group 'A' other than Head of
Departments the minimum bench mark will be very good with
at least 12 marks. Amongst those meetings this criteria, there
would be no supersession.

3. In the case of promotion to posts falling in Group 'B' the
minimum bench mark will be 'Good' and there would be no
supersession i.e. Promotions would be made strictly on
seniority-cum-merit.

4. For making promotion in all the categories there should not be
any adverse remarks in the A.C.Rs under consideration.

2. As a consequence of this decision of the Govt. the appropriate
changes in the Punjab Civil Services (General and Common Conditions of
Service) Rules, 1994 would be made separately.

3. These instructions would be applicable prospectively."

Apart from the above instructions, respondents have heavily

relied upon the Punjab Civil Services (General & Common Conditions of

Service) Rules 1994 (hereinafter referred to as the 1994 Rules) in particular

reference to Rules 18 and 20 thereof. Rules 18 and 20 relied upon by the

respondents are reproduced hereunder:-

" 18. Promotion to Group A and Group B services-(1) (a) For
promotion to the post as Head of Department would be decided
strictly on the basis of merit-cum-seniority as per the
instructions issued by the Govt. from time to time. The
minimum bench mark for promotion for such post would be
'Very Good'. The officer who is graded as 'Outstanding' would
supersede the officer graded as 'Very Good'.

(b) For promotion to post falling in Group 'A' other than
Head of Department the minimum bench mark will be 'Very

CWP No. 17450 of 2010 -7-

Good' as per the instructions issued by the Govt. from time to
time. There shall be no supersession on the basis of merit.

(c) For promotion to post falling in Group 'B' the minimum
bench mark will be 'Good' and there shall be no supersession on
the basis of merit.

Rule 20 reads as under:-

"20. Over riding effect- The provisions of these rules shall
have effect notwithstanding anything to the contrary contained in any rules
for the time being in force for regulating the recruitment and conditions of
service for appointment to public service and posts in connection with the
affairs of the state."

The short grievance of the petitioners in these petitions is that

the service conditions of the petitioners are regulated by the 2004 Rules.

Sub Rule (3) of Rule 5 provides for appointment to the service by

promotion by adopting the rule of seniority-cum-merit, though, seniority

alone cannot be basis for promotion. Based upon aforesaid provision, it is

contended that the petitioners are entitled to promotion on the basis of their

seniority except disqualification on account of any adverse entries or

disciplinary proceedings etc. It is further submitted that introduction of the

minimum bench marks for promotion by virtue of Govt. Instructions dated

6.9.2001 is totally illegal and amounts to supplanting the statutory rules. By

applying the instructions the rule of seniority-cum-merit has been changed

to merit-cum-seniority, which is impermissible in law. In support of their

contention, the petitioners have relied upon a judgement of this Court

reported as 2010(2) RSJ 19 titled as Ravi Dutt Mehra (Dr.) Vs. State of

Punjab & others, wherein the implication of same very Govt. Instructions

dated 6.9.2001 was considered. Relevant observations are as under:-

"6. The statutory rules i.e. Ayurvedic (Group 'A') Service
Rules, 2008 clearly provides for promotion to be made on the principle of
seniority-cum-merit. Petitioner's seniority over and above respondent no.5

CWP No. 17450 of 2010 -8-

is not in dispute. The expression "Seniority-cum-merit" has been
considered and interpreted by various judicial pronouncements.
In the
case of
Haryana State Electricity Development Corpn. Ltd. Vs. Rameshwar
Dass
, 2001 (4) SCT 328, it has been held that the junior person cannot be
promoted unless something is shown adverse to senior or disciplinary
proceedings are pending against him. The seniority cannot be ignored
applying the aforesaid principle. It is equally settled proposition of law
that once the recruitment is regulated by statutory rules and procedure, the
criteria of qualification is prescribed therein and administrative
instructions to the extent the statutory rules are altered/modified or made
redundant cannot be taken into consideration. Admittedly, there was
nothing adverse against the petitioner nor any disciplinary or criminal or
other kind of proceedings were pending against him at the time of
consideration for his promotion to the post in question. The Govt.
instructions dated 6.9.2110 does not in any manner take away the right of
the petitioner for consideration for promotion on the basis of seniority-
cum-merit. If the contention of the respondents regarding the so-called
benchmark is accepted then it amounts to changing the principle/rule from
"Seniority-cum-merit to Merit-cum-seniority". Such a recourse is
impermissible in law."

The petitioners have also referred to the latest judgement of

Hon'ble Apex Court reported as 2011(3) SCC 422 titled as
Haryana State

Warehousing Corporation and others Vs. Jagat Ram and another
. In

the aforesaid judgement the Hon'ble Supreme Court examined the similar

issue of promotion on the basis of seniority-cum-merit, where an identical

provision i.e. Regulation 8(2) framed by the Haryana State Warehousing

Corporation (Officers & Staff) Regulations, 1994 which is similar to Rule 5

(3) of the above service rules came up for consideration. Regulation 8(2)

reads as under:-

" 8(2). All promotions unless otherwise provided, shall be
made on seniority-cum-merit basis and seniority alone shall not confer any
right to such promotions."

CWP No. 17450 of 2010 -9-

Interpreting the aforesaid regulation the Hon'ble Supreme Court

while following earlier judgements titled as
State of Mysore Vs. Syed

Mahmood
, reported as
AIR 1968 SC 1113, B.V. Sivaiah and others Vs.

K. Addanki Babu and others
reported as 1998 (
6) SCC 720,

K.Samantaray Vs. National Insurance Company Ltd.
reported as 2004

(9) SCC 286, Sant Ram Sharma Vs. State of Rajasthan reported as
AIR

1967 SC 1910, Hargovind Yadav Vs. Reva Sidhi Gramin Bank
reported

as 2006 (6) SCC 145 held as under:-

" There is nothing on record to indicate that Jagat Ram was
not capable of discharging his functions in the promoted post of Assistant
Manager (Administration). He was denied promotion only on the ground of
the superior assessment that had been made in favour of Ram Kumar,
which, in our view, runs contrary to the concept of seniority-cum-merit.

Controverting the contentions raised on behalf of the

petitioners, the State has relied upon amended Rule 18 of the 1994 Rules.

Reliance is placed upon Clause B of Rule 18 introduced vide amendment

notification dated 18.12.2001, however, this amended rule was made

applicable w.e.f. 6.9.2001. Clause B of Rule 18 deals with the promotion to

the posts falling in Group-A other than Head of the Department. By virtue

of the amended Rule 18 the concept of minimum bench marks was

introduced for promotion to Group-A posts other than the Head of

Department and the minimum bench mark provided was 'Very Good' as per

the Govt. Instructions issued by the Govt. from time to time. The Rule

further provides that there will be no supersession on the basis of merit.

The purpose for introduction of amendment in Rule 18 retrospectively from

6.9.2001 is to adopt the Govt. Instructions dated 6.9.2001, earlier issued by

the Govt., whereby the concept of minimum bench mark was

CWP No. 17450 of 2010 -10-

introduced without any statutory backing. Rule 6 of 1994 Rules which is

also relevant, is reproduced hereunder:-

"6. Qualifications etc.- Subject to the provisions of these rules,
the number and character of posts, method of recruitment and educational
qualifications and experience for appointment to a post or posts in a Service
and the departmental examination, if any, shall be such as may be specified
in the Service Rules made for that service.

Original rules were amended vide Notifications No. G.S.R.
115/Const./Art.309/Amd.(6) 2001 and No.G.S.R.117/Const./Art.309/Amd.
(7)/2001. Vide these notifications, following amendments have been
introduced:-

"The 18th December, 2001
NO.G.S.R.115/Const./Art.309/Amd. (6)2001.

2. In the preamble of the Punjab Civil Services (General
and Common Conditions of Service ) Rules, 1994 for the figures, sign and
words "Class I, Class II and Class III, the sign and words "Group 'A', Group
'B' and Group 'C' shall be substituted.

The 18th December, 2001
No.G.S.R.117/Const./Art.309/Amd. (7)/2001)

(ii) They shall be deemed to have come into force on and

with effect from the 6th day of September, 2001."

This rule clearly provides that character of post, method of

recruitment and educational qualifications and experience for appointment

to a post in a service etc. shall be as may be specified in the service rules.

The service rules further defined in 1994 Rules means a Class-I, Class-II

and Class-III service constituted in connection with the affairs of the State

under Rule 2(g) of 1994 Rules. However, the application of service rules is

again made subject to the provisions of 1994 Rules as Rule 6 starts with the

expression "subject to the provisions of these rules". This means that even

in the matter of qualification, experience and method of recruitment as may

be provided in the service rules will again be subject to the 1994 Rules.
In

CWP No. 17450 of 2010 -11-

addition to Rules 6 and 18
,
referred to above
, Rule 20 further gives

overriding effect to 1994 Rules in respect to the recruitment and conditions

of service for appointment to public service.

It is also noticed that Rule 8 of the 2004 Rules further makes

1994 Rules applicable to the extent not specifically provided for in the

service rules. Rule 8 reads as under:-

"8. Application of the Punjab Civil Services (General and
Common Conditions of Service) Rules, 1994-(1) In respect of the matters,
which are not specifically provided in these rules, the members of the
service shall be governed by the provisions of the Punjab Civil Services
(General & Common Conditions of Service) Rules, 1994 as amended from
time to time."

Thus, from the conjoint reading of Rules 6, 18 and 20 of the

1994 Rules and Rule 8 of 2004 Rules, it appears that in all those matters,

where there is no provision in the service rules of 2004 and there is any

specific/additional provision under 1994 Rules, predominantly 1994 Rules

will operate and service rules will remain subservient to the 1994 Rules,

though, these rules generally deal with the conditions of service. It is in the

light of the aforesaid statutory provision the applicability of Govt.

Instructions dated 6.9.2001 is to be construed. By virtue of amended Rule

18 the concept of minimum bench marks has been introduced and Rule 18

further refers to the Govt. Instructions issued from time to time. Thus, the

Govt. Instructions issued, form part of the Rule 18 of the 1994 Rules.

In the given scenario of the statutory provisions particularly by

virtue of Rule 18 (b) minimum bench mark could be provided particularly in

absence of any challenge to Rule 18 (b). It is not a case, where by issuing

the executive instructions simplicitor the statutory rules are being over ruled

CWP No. 17450 of 2010 -12-

or altered. When the judgement in Ravi Dutt Mehra's case (supra) was

delivered by this Court, it was not brought to the notice of the Court that

Rule 18 was made applicable w.e.f. 6.9.2001 when the Govt. Instructions

were issued and thus the validity of the Govt. Instructions was examined

considering the same to be in the realm of simply executive instructions.

This was particularly in view of condition no.2 of instructions dated

6.9.2001 which required amendment of statutory rules. However, in view of

the fact that amended Rule 18 itself adopts the Govt. Instructions dated

6.9.2001 the notification dated 6.9.2001 ceases to be a simplicitor executive

instruction but attain the status of statutory provision by virtue of amended

Rule 18 (b). Thus, the judgement in Ravi Dutt Mehra's case (supra) does

not help the petitioners in the present case.

Even if, it is presumed that the Govt. Instructions dated

6.9.2001 cannot be pressed into service to introduce minimum bench marks,

Rule 18 (b) is self sufficient to introduce the concept of minimum bench

marks as the Rule 18 itself speaks of minimum bench mark i.e. 'Very Good'.

Govt. Instructions dated 6.9.2001 has only introduced grading of the A.C.Rs

and nothing more. The minimum bench marks are introduced by virtue of

Rule 18(b) itself. Even in absence of the Govt. Instructions the concept of

bench marks does exist under Rule 18 (b) i.e. 'Very Good'. Grading of

A.C.Rs is prerogative of employer and is well within its right to adopt any

grading method for introduction of the bench marks contemplated by Rule

18(b).

I have no hesitation in saying that all the relevant aspects and

statutory provisions were not thoughtfully considered while deciding the

case of Ravi Dutt Mehra (supra).

CWP No. 17450 of 2010 -13-

The concept of rule of seniority-cum-merit has also been

considered by the Hon'ble Supreme Court in some recent judgements in case

of
Rajendra Kumar Srivastava and others Vs. Samyut Kshetriya

Gramin Bank and others
, reported as 2010 (1) SCC 335. In this case,

Hon'ble Supreme Court considered the principle of seniority-cum-merit as

distinct from seniority alone and merit-cum-seniority. While considering the

principle of seniority-cum-merit, following observations have been made:-

"11. It is also well settled that the principle of seniority-cum-
merit, for promotion, is different from the principle of `seniority' and
principle of merit-cum-seniority'. Where promotion is on the basis of
seniority alone, merit will not play any part at all. But where promotion is
on the principle of seniority-cum-merit, promotion is not automatic with
reference to seniority alone. Merit will also play a significant role. The
standard method of seniority-cum-merit is to subject all the eligible
candidates in the feeder grade (possessing the prescribed educational
qualification and period of service) to a process of assessment of a
specified minimum necessary merit and then promote the candidates who
are found to possess the minimum necessary merit strictly in the order of
seniority. The minimum merit necessary for the post may be assessed either
by subjecting the candidates to a written examination or an interview or by
assessment of their work performance during the previous, or by a
combination of either two or all the three of the aforesaid methods. There is
no hard and fast rule as to how the minimum merit is to be ascertained. So
long as the ultimate promotions are based on seniority, any process for
ascertaining the minimum necessary merit, as a basic requirement, will not
militate against the principle of seniority-cum- merit.

13. Thus it is clear that a process whereby eligible candidates
possessing the minimum necessary merit in the feeder posts is first
ascertained and thereafter, promotions are made strictly in accordance
with seniority, from among those who possess the minimum necessary merit
is recognised and accepted as complying with the principle of `seniority-
cum-merit'. What would offend the rule of seniority-cum-merit is a process

CWP No. 17450 of 2010 -14-

where after assessing the minimum necessary merit, promotions are made
on the basis of merit (instead of seniority) from among the candidates
possessing the minimum necessary merit. If the criteria adopted for
assessment of minimum necessary merit is bona fide and not unreasonable,
it is not open to challenge, as being opposed to the principle of seniority-
cum-merit. We accordingly hold that prescribing minimum qualifying
marks to ascertain the minimum merit necessary for discharging the
functions of the higher post, is not violative of the concept of promotion by
seniority-cum-merit."

In case of
Haryana State Warehousing Corporation
(supra)

reported as 2011 (9) SCC 422 the Hon'ble Mr. Justice Cyriac Joseph while

concurring with the conclusion of Hon'ble Mr. Justice Altamas Kabir

separately considered the principle of seniority-cum-merit and observed as

under:-

" 22. Thus it is the settled position that the criterion of
seniority-cum-merit is different from the criterion of merit and also
the criterion of merit-cum-seniority. Where the promotion is based on
seniority-cum-merit, the officer cannot claim promotion as a matter
of right by virtue of his seniority alone. If he is found unfit to
discharge the duties of the higher post, he may be passed over
and an officer junior to him may be promoted. Seniority-cum-merit means
that, given the minimum necessary merit required for efficiency of
administration, the senior, though less meritorious, shall have priority
in the matter of promotion and there is no question of a further
comparative assessment of the merit of those who were found to have the
minimum necessary merit required for efficiency of administration.
For assessing the minimum necessary merit, the competent authority
can lay down the minimum standard that is required and also
prescribe the mode of assessment of merit of the employees. Such
assessment can be made by assigning marks on the basis of appraisal of
performance on the basis of service record and interview and
prescribing the minimum marks which would entitle a person to
be considered for promotion on the basis of seniority-cum-merit.

CWP No. 17450 of 2010 -15-

The concept of "seniority-cum-merit" postulates the requirement of
certain minimum merit or satisfying a benchmark previously fixed
and, subject to fulfilling the said requirement, promotion is based
on seniority. There is no further assessment of the comparative merits of
those who fulfil such requirement of minimum merit or satisfy the
benchmark previously fixed. On the other hand, the principle of
"merit-cum-seniority" puts greater emphasis on merit and ability and
seniority plays a less significant role. Seniority is given
weightage only when merit and ability are more or less equal
among the candidates considered for promotion."

The above principle
laid down by
the Hon'ble Supreme Court

even emanate from Rule 5 (3) of 2004 Rules which inter alia mentions that

seniority alone will not be basis for promotion. Thus, even when the

principle of seniority-cum-merit applies, there is some element of merit

which the officer may be required to possess for bringing efficiency in the

service. It is in this view of the matter that seniority alone has not been

considered as the sole basis for promotion even under Rule 5 (3). A

distinction is to be drawn between principle of seniority alone and seniority-

cum-merit as observed by the Hon'ble Supreme Court in the above

mentioned judgement. There is another relevant aspect, even Rule 18 of

1994 Rules whereby the minimum bench marks have been introduced

clearly provides that there shall be no supersession on the basis of merit.

The concept of this expression is that where the employees are required to

achieve minimum bench marks, there cannot be any further comparison of

merit between such employees who acquire minimum bench marks. After

the employee achieved the minimum bench marks then rule of seniority has

to prevail which is the objective and logical principle underlining the rule of

seniority-cum-merit and perhaps could be the only realistic purpose of this

principle.

This view has been adopted by this court in CWP No. 14309 of

CWP No. 17450 of 2010 -16-

2010 titled as
Dr. Darshan Singh vs. State of Punjab & others
decided on

11.5.2011.

It is lastly contended on behalf of the petitioners that they have

been deprived of their right of consideration by not communicating their

adverse reports and thus all such adverse reports cannot be relied upon to

deny them the promotion.

As a matter of fact, there are no adverse reports against the

petitioners. They have not been graded below 'Good'. Though, some of

them have been graded as 'Very Good' also for some years. To support their

contentions, petitioners have relied upon a judgement of Hon'ble Supreme

Court reported as J.T 2008 (7) SC 463 titled as
Dev Dutt Vs. Union of

India & others
. In this case the Hon'ble Supreme Court issued directions

for making available all the entries in the A.C.Rs of a public servant. The

relevant directions read as under:-

"14. In our opinion, every entry (and not merely a poor or
adverse entry) relating to an employee under the State or an instrumentality
of the State, whether in civil, judicial, police or other service (except the
military) must be communicated to him, within a reasonable period, and it
makes no difference whether there is a bench mark or not. Even if there is
no bench mark, non-communication of an entry may adversely affect the
employee's chances of promotion (or getting some other benefit), because
when comparative merit is being considered for promotion (or some other
benefit) a person having a `good' or `average' or `fair' entry certainly has
less chances of being selected than a person having a `very good' or
`outstanding' entry.

15. In most services there is a gradation of entries, which is
usually as follows:

(i) Outstanding
(ii) Very Good
(iii) Good

CWP No. 17450 of 2010 -17-

(iv) Average
(v) Fair
(vi) Poor

A person getting any of the entries at items (ii) to (vi) should be
communicated the entry so that he has an opportunity of making a
representation praying for its upgradation, and such a representation must
be decided fairly and within a reasonable period by the concerned
authority.

16. If we hold that only `poor' entry is to be communicated,
the consequences may be that persons getting `fair', `average', `good' or
`very good' entries will not be able to represent for its upgradation, and
this may subsequently adversely affect their chances of promotion (or get
some other benefit)."

Relying upon the aforesaid observations, it is contended that

the petitioners have been deprived of making a representation against their

A.C.Rs and on account of no communication, they have not been able to

improve, thus, there has not been fair consideration of their claims for

promotion. This judgement was delivered on 12.5.2008. Prior to the

aforesaid judgement, the only concept known to service jurisprudence was

communication of adverse A.C.Rs. However, by virtue of the directions

contained in the aforesaid judgement, it has become obligatory upon the

authorities/public employer to communicate all A.C.Rs. This judgement is,

however, prospective in nature and cannot be applied retrospectively for the

period prior to the judgement. However, where the A.C.Rs of petitioners

after delivery of the judgement have been taken into consideration for

determining the bench marks without communicating the same to them,

perhaps they may have a grievance of non-communication of their A.C.Rs.

This aspect shall be examined by the respondents and where the A.C.Rs

have not been communicated for the period under consideration for

promotion, such of the petitioners will be communicated their all A.C.Rs

CWP No. 17450 of 2010 -18-

irrespective whether there is anything adverse or not and after seeking their

explanation, after providing them an opportunity to represent and on

consideration of such representations, their cases may be re-considered.

In so far the introduction of minimum bench marks while

applying the principle of seniority-cum-merit is concerned is not contrary of

any rule, thus, cannot be faulted with. This is in particular reference to the

Education Department, where the teachers are to produce the students, who

are the future of the nation. The education in any country is necessary for

the development of the country as a whole as the education has great role to

play in personality development of an individual, irrespective of the field to

which he belongs or may ultimately join. The relevance and importance of

the education has been considered by the Hon'ble Supreme Court in a recent

judgement reported as 2011 (3) SCC 436 titled as State of Orissa and

another Vs. Mamata Mohunty. While dealing with the significance and

importance of education the Hon'ble Supreme Court observed as under:-

"33. In view of the above, it is evident that education is
necessary to develop the personality of a person as a whole and in totality
as it provides the process of training and acquiring the knowledge, skills,
developing mind and character by formal schooling. Therefore, it is
necessary to maintain a high academic standard and academic discipline
along with academic rigour for the progress of a nation. Democracy
depends for its own survival on a high standard of vocational and
professional education. Paucity of funds cannot be a ground for the State
not to provide quality education to its future citizens. It is for this reason
that in order to maintain the standard of education the State Govt. provides
grant-in-aid to private schools to ensure the smooth running of the
institution so that the standard of teaching may not suffer for want of
funds."

CWP No. 17450 of 2010 -19-

Similarly dealing with the experience of teaching staff the

Hon'ble Supreme Court observed as under:-

"34.
Article 21-A
has been added by amending our
Constitution with a view to facilitate the children to get proper and good
quality education. However, the quality of education would depend on
various factors but the most relevant of them is excellence of teaching staff.
In view thereof, quality of teaching staff cannot be compromised. The
selection of the most suitable persons is essential in order to maintain
excellence and the standard of teaching in the institution. It is not
permissible for the State that while controlling the education it may
impinge the standard of education. It is, in fact, for this reason that norms
of admission in institutions have to be adhered to strictly."

The post of Principal is a significant post for variety of reasons.

The Principal is not only an administrative head of an institution but also is

concerned with the academic excellence in the institution. It is with this

objective that the post of Principal has been brought under Group-A post

not merely for purpose of salary but for bringing efficiency and excellence

in the institution itself. Thus, higher standards of excellence is demanded

from an incumbent who occupies the post of Principal, who heads the

institution for its overall monitoring, supervision and academic excellence.

Introduction of minimum bench marks in Group-A post is not only needed

but in fact is imperative.

In the above factual and legal background, action of the

respondents to introduce minimum bench marks cannot be interfered with.

In any case Rule 18 of 1994 Rules is not under challenge. These writ

petitions are, accordingly, disposed of with a direction to the State-

respondents to re-consider the cases of such of the petitioners who have not

been communicated their A.C.Rs for the period in question, if, such period

falls after 12.5.2008 i.e the date of delivery of judgement in
Dev Dutt
's case

(supra). However, wherever the petitioners have been communicated their

CWP No. 17450 of 2010 -20-

A.C.Rs for the period under consideration for purposes of their promotion,

the writ petitions shall stand dismissed.

Copy of this judgement be placed on each connected file.

(PERMOD KOHLI)
JUDGE
31.5.2011.

lucky

Whether to be reported? Yes.