Punjab-Haryana High Court

Krishan Kant vs The Punjab State Cooperative ... on 23 February, 2023

Author:
Pankaj Jain

Bench:
Pankaj Jain

Neutral Citation No:=2023:PHHC:033951

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

Reserved on 5th of January, 2023
Pronounced on 23rd February, 2023

CWP No.27527 of 2017

Krishan Kant ....Petitioner

Versus

Punjab State Cooperative Agricultural Development Bank Limited and
others ...Respondents

CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN

Present : Mr. Navdeep, Advocate for
Mr. Manjit Singh Sarao, Advocate for the petitioner.

Mr. Ashwani Prashar, Advocate
for respondent No.1.

None for respondent No.3.

PANKAJ JAIN, J.

Petitioner seeks writ in the nature of mandamus directing

the respondents to consider his claim for promotion as Deputy

Manager w.e.f. 7th of July, 2017 i.e. the date from which his juniors

stand promoted vide Annexure P-1.

2. As per the facts pleaded in the writ petition, petitioner is an

employee of respondent No.1-Bank. He joined the services as Clerk

on 31st of January, 1995. Petitioner claims that he was due for

promotion to the post of Deputy Manager from the post of Assistant

Manager yet he was ignored despite being at Seniority No.48 whereas

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private respondents who were at Seniority Nos.49 and 50 stand

promoted. Petitioner represented to the respondent for assigning reason

for ignoring him from consideration. The representation has been

placed on record at Annexure P-6 which has not been decided as yet.

Petitioner claims that respondent No.1 conveyed through

communication dated 1st of September, 2017 that in ACR for the year

2016-17 he has been assessed as 'Average'. Petitioner claims that the

remarks were never conveyed to him.

3. Ld. Counsel for the petitioner submits that as per the

settled law, ACR not communicated to an employee cannot be read to

defeat his right to be considered for promotion. Reliance is being

placed upon Rajinder Kumar vs. Punjab State Cooperative

Agricultural Development Bank Ltd., CWP No.20465 of 2012,

decided on 13.05.2016; and by the Apex Court in
Dev Dutt vs. Union

of India and others
, 2008(8) SCC 725 and Sukhdev Singh vs. Union

of India and others, 2013(5) SCR 1004.

4. Ld. Counsel representing the respondent No.1 has raised a

preliminary issue w.r.t. the maintainability of the writ petition claiming

that the respondent-Bank is a Co-operative Society registered under

the provisions of
Punjab Cooperative Societies Act, 1961
. Thus, the

same is not amenable to writ jurisdiction. It has been averred that the

Cooperative Society does not fall within the definition of 'State' as

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enumerated under
Article 12
of the Constitution of India and thus, as

per law laid down by Apex Court in
S.S. Rana vs. Registrar

Cooperative Societies and another
, (2006)11 SCC 634 and in

General Manager, Kisan Sahkari Chini Mills Ltd. Sultanpur, U.P.

vs. Satrughan Nishad and others
, JT 2003(8) SC 235 the present

writ petition is not maintainable.

5.
In order to controvert the preliminary objection raised by

respondent, counsel for the petitioner has relied upon AIR 1982 P&H

228 titled as
Pritam Singh Gill vs. State of Punjab and others
and

U.P. State Co-Operative Land Development Bank Ltd. vs.

Chandra Bhan Dubey and others
decided on 18th of December,

1998.

It has been claimed that since the Bank has been constituted

under the Punjab Act No.26 of 1957 titled as 'the Punjab Cooperative

Agricultural Development Banks Act, 1957', the case of the petitioner

would be fully covered by the law
laid down by
Apex Court in
U.P.

State Co-Operative Land Development Bank Ltd.
(supra).

6. I have heard counsel for the parties and have gone through

the records of the case.

7. The issues involved in the present writ petition are :

a) whether Cooperative Society falls within the ambit of 'State' as

enumerated under
Article 12
of the Constitution of India?'.

b) 'whether the writ petition would be maintainable against a

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Cooperative Society despite the fact that it does not fall within the

ambit of 'State'?.

8. So far as the first issue is concerned Seven Judges Bench

of Apex Court in the case of
Pradeep Kumar Biswas vs. Indian

Institute of Chemical Biology
, (2002) 5 SCC 111 while considering

the test as
laid down in
the case of
Ajay Hasia v. Khalid Mujib

Sehravardi
, (1981) 1 SCC 722 and overruling the view taken in

Sabhajit Tewari vs. Union of India and others
, (1975) 1 SCC 485

observed as under :

"40. The picture that ultimately emerges is that the tests
formulated in Ajay Hasia are not a rigid set of principles so that if
a body falls within any one of them it must, ex-hypothesis, be
considered to be a State within the meaning of
Article 12.
The
question in each case would be - whether in the light of the
cumulative facts as established, the body is financially,
functionally and administratively dominated by or under the
control of the Government. Such control must be particular to the
body in question and must be pervasive. If this is found then the
body is a State within
Article 12.
On the other hand, when the
control is merely regulatory whether under statute or otherwise, it
would not serve to make the body a State."

9. The question w.r.t. Punjab State Co-operative Land

Mortgage Bank being a 'State' or not already stands answered by Full

Bench of this Court in the case of Pritam Singh vs. State (FB), AIR

1982 Punjab and Haryana 228.
The Full Bench following the

principles laid down in
Ajay Hasia
's case (supra) concluded as

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under :-

"25. From the above, the conclusion, therefore, is inevitable that it
has not even remotely been established that respondent No. 3 the
mortgage bank (against which alone the primary relief is claimed),
is an instrumentality or agency of the State. Consequently, it cannot
be deemed to be an authority within the meaning of
Art. 12
of the
Constitution of India and thus not amenable to a writ of certiorari
under
Art. 226
of the Constitution of India, which is the primary
relief sought.

26. Repelled on his primary plank to establish that the mortgage
bank was an instrumentality of the State and consequently
amenable to the writ jurisdiction (despite the fact of its being
registered under the
Co-operative Societies Act
), Mr. Saini made a
tactical retreat to make a flanking attack which seems to be equally
futile. It was forcefully contended that in spite of the fact that the
mortgage bank may not be an authority under
Art. 12
of the
Constitution of India, a writ of certiorari will nevertheless still lie
for quashing the order of the Managing Director of the respondent-
mortgage bank, whereby the petitioner has been compulsorily
retried. This contention might merit some dubious tribute to the
ingenuity of the learned counsel but the same is patently
fallacious."

It needs to be mentioned that in afore-said judgment Full Bench

approved the view taken by Single Bench viz-a-viz the respondent-

Bank in this case holding that it is not 'State'.

10. Being bound by ratio of law
laid down by
the Full Bench

in
Pritam Singh
's case (supra), I have no hesitation in holding that the

respondent-Cooperative Society is not 'State' or instrumentality thereof

and, thus, would not fall within ambit of
Article 12
of the Constitution

of India. Resultantly, the first question framed in Para 7 stands

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answered in favour of the respondent.

11. Now coming on to the second issue. The law has evolved.

Owing to the change post economic liberalization of the country in the

1990s, role of the State is getting limited. Doctrine of laissez-faire is

the norm. However, it has led to creation of a parallel eco-system

wherein bodies of different characters and species are performing

public functions. The Apex Court in the case of
Anadi Mukta

Sadguru vs. V.R. Rudani and others
, (1989) 2 SCC 691 made

following observations :-

"The term "authority" used in
Article 226
, in the con- text, must
receive a liberal meaning unlike the term in
Article 12.

Article 12

is relevant only for the purpose of enforcement of fundamental
rights under
Art. 32.

Article 226
confers power on the High Courts
to issue writs for enforcement of the fundamental rights as well as
non-fundamental rights. The words "Any person or authority" used
in
Article 226
are, therefore, not to be confined only to statutory
authorities and instrumentalities of the State. They may cover any
other person or body performing public duty. The form of the body
concerned is not very much relevant. What is relevant is the nature
of the duty imposed on the body. The duty must be judged in the
light of positive obligation owed by the person or authority to the
affected party. No matter by what means the duty is imposed. If a
positive obligation exists mandamus cannot be denied."

12.
In the case of
St. Mary's Education Society and another

vs. Rajendra Prasad Bhargava and others
, 2022 SCC OnLine SC

1091 while concluding the law w.r.t. maintainability of writ petition

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against the State instrumentality/bodies involved in public functions

held as under :

"(a) An application under
Article 226
of the Constitution is
maintainable against a person or a body discharging public duties
or public functions. The public duty cast may be either statutory
or otherwise and where it is otherwise, the body or the person
must be shown to owe that duty or obligation to the public
involving the public law element. Similarly, for ascertaining the
discharge of public function, it must be established that the body
or the person was seeking to achieve the same for the collective
benefit of the public or a section of it and the authority to do so
must be accepted by the public.

(b) Even if it be assumed that an educational institution is
imparting public duty, the act complained of must have a direct
nexus with the discharge of public duty. It is indisputably a public
law action which confers a right upon the aggrieved to invoke the
extraordinary writ jurisdiction under
Article 226
for a prerogative
writ. Individual wrongs or breach of mutual contracts without
having any public element as its integral part cannot be rectified
through a writ petition under
Article 226.
Wherever Courts have
intervened in their exercise of jurisdiction under
Article 226
,
either the service conditions were regulated by the statutory
provisions or the employer had the status of "State" within the
expansive definition under
Article 12
or it was found that the
action complained of has public law element.

(c) It must be consequently held that while a body may be
discharging a public function or performing a public duty and thus
its actions becoming amenable to judicial review by a
Constitutional Court, its employees would not have the right to
invoke the powers of the High Court conferred by
Article 226
in
respect of matter relating to service where they are not governed
or controlled by the statutory provisions. An educational
institution may perform myriad functions touching various facets
of public life and in the societal sphere. While such of those

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functions as would fall within the domain of a "public function"

or "public duty" be undisputedly open to challenge and scrutiny
under
Article 226
of the Constitution, the actions or decisions
taken solely within the confines of an ordinary contract of service,
having no statutory force or backing, cannot be recognised as
being amenable to challenge under
Article 226
of the
Constitution. In the absence of the service conditions being
controlled or governed by statutory provisions, the matter would
remain in the realm of an ordinary contract of service.

(d) Even if it be perceived that imparting education by private
unaided the school is a public duty within the expanded
expression of the term, an employee of a nonteaching staff
engaged by the school for the purpose of its administration or
internal management is only an agency created by it. It is
immaterial whether "A" or "B" is employed by school to
discharge that duty. In any case, the terms of employment of
contract between a school and non-teaching staff cannot and
should not be construed to be an inseparable part of the obligation
to impart education. This is particularly in respect to the
disciplinary proceedings that may be initiated against a particular
employee. It is only where the removal of an employee of non-

teaching staff is regulated by some statutory provisions, its
violation by the employer in contravention of law may be
interfered by the court. But such interference will be on the
ground of breach of law and not on the basis of interference in
discharge of public duty.

(e) From the pleadings in the original writ petition, it is apparent
that no element of any public law is agitated or otherwise made
out. In other words, the action challenged has no public element
and writ of mandamus cannot be issued as the action was
essentially of a private character."

13. Thus, the proposition that emerges is that for an

establishment to be a 'State' as defined under
Article 12
of the

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Constitution of India, it must pass the tests as enumerated by Apex

Court in
Ajay Hasia
's case (supra) and reiterated by the Constitution

Bench in the case of
Pradeep Kumar Biswas
(supra). In case the

establishment against whom writ has been filed falls within the ambit

of
Article 12
and can be termed as 'State', there would be no doubt

about the same being amenable to writ jurisdiction. However, writ

petition will not be held to be maintainable against a body discharging

public function merely because it does not fall within the definition of

'State'. The test is : whether cause of action pleaded by the petitioner

involves breach of statutory provision? In the case of Cooperative

Society also though it is not 'State' but a breach of statutory Rules

would render it amenable to writ jurisdiction.

14. Even in the case of
S.S. Rana vs. Registrar Co-operative

Societies & Anr.
(2006) 11 SCC 434 Apex Court held as under :-

"8. ....It is not in dispute that the Society has not been constituted
under an Act. Its functions like any other Co-operative Society
are mainly regulated in terms of the provisions of the Act, except
as provided in the bye-laws of the Society. The State has no say
in the functions of the Society. Membership, acquisition of shares
and all other matters are governed by the bye-laws framed under
the Act. The terms and conditions of an officer of the Co-
operative Society, indisputably, are governed by the Rules. Rule
56, to which reference has been made by Mr. Vijay Kumar, does
not contain any provision in terms whereof any legal right as such
is conferred upon an officer of the Society.

9. It has not been shown before us that the State exercises any

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direct or indirect control over the affairs of the Society for deep
and pervasive control. The State furthermore is not the majority
shareholder. The State has the power only to nominate one
director. It cannot, thus, be said that the State exercises any
functional control over the affairs of the Society in the sense that
the majority directors are nominated by the State. For arriving at
the conclusion that the State has a deep and pervasive control
over the Society, several other relevant questions are required to
be considered, namely : (1) How the Society was created ?; (2)
Whether it enjoys any monopoly character ?; (3) Do the functions
of the Society partake to statutory functions or public functions ?;
and (4) Can it be characterised as public Authority ?

10. The respondent No. 1-Society does not answer any of the
afore-mentioned tests.
In the case of a non-statutory society, the
control thereover would mean that the same satisfies the tests
laid
down by
this Court in
Ajay Hasia v. Khalid Mujib Sehravardi
,
(1981)1 SCC 722. [See Zoroastrian Coop. Housing Society Ltd.

v. District Registrar, Coop. Societies (Urban) & Ors., 2005(5)
SCC 632].

11. It is well settled that general regulations under an Act, like

Companies Act
or the
Co-operative Societies Act
, would not
render the activities of a company or a society as subject to
control of the State. Such control in terms of the provisions of the
Act are meant to ensure proper functioning of the Society and the
State or statutory authorities would have nothing to do with its
day-to-day functions.

12. The decision of the Seven Judge Bench of this Court in

Pradeep Kumar Biswas
(supra), whereupon strong reliance has
been placed, has no application in the instant case.

In that case,
the Bench was deciding a question as to whether in view of the
subsequent decisions of this Court, the law was correctly
laid
down in

Sabhajit Tewary v. Union of India & Ors.
, (1975) 1
SCC 485, and it not whether the same deserved to be overruled.
The majority opined that the Council of Scientific and Industrial

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Research (CSIR) was a 'State' within the meaning of
Article 12
of
the Constitution of India. This Court noticed the history of the
formation thereof, its objects and functions, its management and
control as also the extent of financial aid received by it. Apart
from the said fact it was noticed by reason of an appropriate
notification issued by the Central Government that CSIR was
amenable to the jurisdiction of the Central Administrative
Tribunal in terms of
Section 14(2)
of the Administrative
Tribunals Act, 1985.

It was on the aforementioned premises this
Court opined that
Sabhajit Tewary
(supra) did not lay down the
correct law.

This Court reiterated the following six tests
laid
down in

Ajay Hasia v. Khalid Mujib Sehravardi
, (1981) 1 SCC
722 :

"(1) One thing is clear that if the entire share capital of the
corporation is held by Government, it would go a long
way towards indicating that the corporation is an
instrumentality or agency of Government.

(2) Where the financial assistance of the State is so much
as to meet almost entire expenditure of the corporation, it
would afford some indication of the corporation being
impregnated with Governmental character.

(3) It may also be relevant factor ...whether the
corporation enjoys monopoly status which is State
conferred or State protected.

(4) Existence of deep and pervasive State control may
afford an indication that the corporation is a State agency
or instrumentality.

(5) If the functions of the corporation are of public
importance and closely related to Governmental functions,
it would be a relevant factor in classifying the corporation
as an instrumentality or agency of Government.
(6) 'Specifically, if a department of Government is
transferred to a corporation, it would be a strong factor
supportive of this inference' of the corporation being an
instrumentality or agency of Government."

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This
Court further held
:

"This picture that ultimately emerges is that the tests
formulated in Ajay Hasia are not a rigid set of principles
so that if a body falls within any one of them it must, ex
hypothesi, be considered to be a State within the meaning
of
Article 12.
The question in each case would be whether
in the light of the cumulative facts as established, the body
is financially, functionally and administratively dominated
by or under the control of the Government. Such control
must be particular to the body in question and must be
pervasive. If this is found then the body is a State within

Article 12.
On the other hand, when the control is merely
regulatory whether under statute or otherwise, it would
not serve to make the body a State." (Emphasis supplied)

13. As the respondent No. 1 does not satisfy any of the tests
laid
down in

Pradeep Kumar Biswas
(supra), we are of the opinion
that the High Court cannot be said to have commtted any error in
arriving at a finding that the respondent-Bank is not a State within
the meaning of
Article 12
of the Constitution of India.

14. We are, however, not oblivious of a three judge Bench decision
in
Gayatri De v. Mousumi Cooperative Housing Society Ltd. &
Ors.
, 2004(3) RCR (Civil) 204 : (2004) 5 SCC 90, wherein this
Court held a writ petition to be maintainable against the
cooperative society only stating :

"We have, in paragraphs supra, considered the judgments
for and against on the question of maintainability of writ
petition. The judgments cited by the learned Senior
Counsel appearing for the respondents are distinguishable
on facts and on law. Those cases are not cases covered by
the appointment of a Special Officer to manage the
administration of the Society and its affairs. In the instant
case, the Special Officer was appointed by the High Court
to discharge the functions of the Society, therefore, he

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should be regarded as a public authority and hence, the
writ petition is maintainable."

15. The said decision, therefore, is of no assistance to us.

16. Our attention has also been drawn to U.P. State Cooperative
Land development
Bank Ltd. v. Chandra Bhan Dubey & Ors.
,
1999(1) S.C.T. 593 : (1999) 1 SCC 741, wherein the writ petition
was held to be maintainable principally on the ground that it had
been created under an Act.

Reliance has also been placed upon

Ram Sahan Rai v. Sachiv Samanaya Prabandhak & Anr.
, 2001
(2) S.C.T. 231 : (2001) 3 SCC 323, wherein again the appellant
thus was recruited in a Society constituted under the U.P.
Cooperative Land Development Bank Act, 1964 and this Court,
having examined different provisions of rules, bye-laws and
regulations, was of the firm opinion that the State Government
exercised all-pervasive control over the Bank and moreover its
employees were governed by statutory rules, prescribing an entire
gamut of procedure of initiation of disciplinary proceedings by
framing a set of charges culminating in inflicting of appropriate
punishment, after complying with the requirements of giving a
show-cause and an opportunity of hearing to the delinquent.

17. It is, therefore, evident that in
Ram Sahan Rai
(supra) also the
cooperative society was held to be established under a statute.

We
may notice that in
Nayagarh Cooperative Central Bank Ltd. &
Anr. v. Narayan Rath & Anr.
, (1977) 3 SCC 576, this Court was
of the opinion that :

"The High Court has dealt with the question whether a
writ petition can be maintained against a cooperative
society, but we are inclined to the view that the
observations made by the High Court and its decision that
such a writ petition is maintainable are not strictly in
accordance with the decisions of this Court. We would
have liked to go into the question for ourselves, but it is
unnecessary to do so as Respondent 1 by his writ petition,

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was asking for relief not really against a cooperative
society but in regard to the order which was passed by the
Registrar, who was acting as a statutory authority in the
purported exercise of powers conferred on him by the

Cooperative Societies Act
. The writ petition was in that
view maintainable."

18. We may notice in some decisions, some High Courts have
held wherein that a writ petition would be maintainable against a
society if it is demonstrated that any mandatory provision of the
Act or the rules framed thereunder, have been violated by it. [See

Bholanath Roy & Ors. v. State of West Bengal & Ors.
, (1996)
Vol. 1 Calcutta Law Journal 502].

19. The Society has not been created under any statute. It has not
been shown before that in terminating the services of the
appellant, the Respondent has violated any mandatory provisions
of the Act or the rules framed thereunder. In fact, in the writ
petition no such case was made out."

(emphasis supplied)

15. In the present writ petition, the petitioner prays for writ of

mandamus and not for writ of certiorari. Trite it is that in order to

invoke the mandamus jurisdiction, the petitioner is under obligation to

show public or statutory duty laid on the respondent and to

demonstrate an equally clear legal right to enforce the same. On the

aforesaid principle, ratio of law
laid down by
Full Bench of this Court

in
Pritam Singh
's case (supra) is fully in-line with exceptions carved

out in
S.S. Rana
's case (supra). Now the question arises is: whether

the Punjab State Cooperative Agricultural Development Bank Service

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Common Cadre Rules, 1978 are mandatory?.

16. It need not look far as the said issue also stands concluded

by Full Bench of this Court in
Jasbir Singh vs. Commissioner

(Appeals), Jalandhar Division and others
, 2011(4) RCR (Civil) 1,

wherein it has been held that :-

"37. There are three categories of Service Rules which can be
framed to regulate the conditions of service of the employees of
the Society. In first category, a registered Society under the

Societies Act
can frame its own Service Rules to regulate the
service conditions of its employees. The Rules may be binding
between the Society and its employees. The second category of
the Rules is those rules which are formulated under Section 85(2)
(xxxviii), which empower the Government to frame Service Rules
for any Co-operative Society or for class of societies with regard
to qualifications for employees of a Society or class of society and
the conditions of service subject to which persons may be
employed by Societies. Such Rules so framed have the force of
Statute and are deemed to be incorporated as a part of the Statute,
whereas this principle does not apply to the first category of Rules
framed by the Society because those Rules merely govern the
internal management, business or administration of a society.
They are of the nature of the Articles of Association of a
Company incorporated under the
Companies Act
. They may be
binding between the persons affected by them, but they do not
have the force of a statute. But the second category of Rules is the
Statutory Rules and they have the force of the statute. Similarly,
there is third category of Rules known as Common Cadre Rules.
These rules could have been framed under Section 84-A of the
Punjab Act which provide that an apex society may suo motu and
when required to do so by the Registrar shall constitute a common
cadre of all, or specified class of employee in the service of that
society or in the service of the central societies which are

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members of the apex society or in the service of the primary
societies which are members of the apex society. Sub-section (2)
further provides that when a common cadre of employee is
constituted under sub-section (1), the Registrar shall
notwithstanding anything contained in any law for the time being
in force or any agreement, settlement or award determine the pay
scales and allowances admissible to such employees and Apex
Society shall make rules for the regulation of recruitment and
conditions of service of such employees with the prior approval of
the Registrar. Therefore, the Common Cadre Rules framed under
sub-section (2) by the Registrar are also having the statutory
colour and stand on the same footing as that of the Statutory
Rules."

17. Thus Full Bench of this Court has already held that the

Common Cadre Rules are mandatory in nature and, thus, the writ of

mandamus to enforce the same would be maintainable in view of

settled law.

18. In the present case admittedly, the service conditions of the

employees of the Bank are governed by the Punjab State Cooperative

Agricultural Development Bank Service Common Cadre Rules, 1978

which are statutory in nature. The petitioner claims right to be

considered for promotion on the basis of the said Rules. Thus, writ

petition is held to be maintainable. The petitioner claims that the

action of the authorities in relying upon un-communicated ACRs ought

not have been considered to deny him promotion. On merits the

respondent-Bank in its written statement has not denied that the

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Average ACRs were never communicated to the petitioner. As per

counsel for the petitioner the matter is squarely covered by ratio of law

laid down by
this Court in the case of
Rajinder Kumar vs. Punjab

State Agricultural Development Bank Limited - CWP No.20465
of

2012, decided vide order dated 13th of May, 2016 in which this Court

held as under :

"The said stand taken by the Bank, cannot be accepted. It
has been time and again held that ACRs, whether good or
adverse, have to be communicated to the employee so that he can
improve his performance. The Apex Court in
Dev Dutt Vs. Union
of India & others
2008 (8) SCC 725 held to that effect.

The said
view has further been approved by a three-Judge Bench of the
Apex Court in
Sukhdev Singh vs. Union of India and others
,
2013 (5) SCR 1004. The relevant portion reads as under:-

"8. In our opinion, the view taken in Dev Dutt that every
entry in ACR of a public servant must be communicated to
him/her within a reasonable period is legally sound and
helps in achieving threefold objectives. First, the
communication of every entry in the ACR to a public
servant helps him/her to work harder and achieve more
that helps him in improving his work and give better
results. Second and equally important, on being made
aware of the entry in the ACR, the public servant may feel
dissatisfied with the same. Communication of the entry
enables him/her to make representation for upgradation of
the remarks entered in the ACR. Third, communication of
every entry in the ACR brings transparency in recording
the remarks relating to a public servant and the system
becomes more conforming to the principles of natural
justice. We, accordingly, hold that every entry in ACR -
poor, fair, average, good or very good - must be
communicated to him/her within a reasonable period. 9.

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CWP No.27527 of 2017 18

The decisions of this Court in
Satya Narain Shukla vs.
Union of India
and others10 and
K.M. Mishra vs. Central
Bank of India
and others11 and the other decisions of this
Court taking a contrary view are declared to be not laying
down a good law."

Similarly, in
Dr.Gurdev Singh Bhardwaj vs. State of
Punjab and others
2013 (1) RSJ 474, it was held that adverse
entry needs to be communicated to the employee and is liable to
be ignored while determining the bench marks. The relevant
portions read thus:-

"12. Following the dictum
laid down by
the Apex Court, it
is clear that the average report relating to the year 2005- 06
which clearly had an adverse effect insofar as
consideration of the petitioner for purposes of promotion to
the higher post of Senior Medical Officer, was required to
be conveyed to him. Accordingly, it is held that the ACR
for the year 2005- 06 having not been communicated to the
petitioner was liable to be ignored while determining the
bench mark.

13. That apart, I find that the respondent-authorities have
acted arbitrarily in not considering the ACR of the
petitioner for the year 2007-08. The right of an employee
to be considered for promotion is a fundamental right
under
Article 16
of the Constitution of India. It is not just a
right of consideration but, in fact, an obligation cast upon
the employer to afford a fair consideration to an employee
in terms of the principles of service jurisprudence. It has
been admitted that the petitioner had been graded 'very
good' for the year 2007-08 and such report had been duly
received but was not available at the time of preparation of
agenda submitted before the Departmental Promotion
Committee. This cannot be a basis for denying to the
petitioner the grading in terms of assigning three numbers
for such 'very good' report for the year 2007- 08. 14.
Learned counsel appearing for the petitioner would bring
to my notice that the petitioner has since retired on

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CWP No.27527 of 2017 19

29.2.2012, having attained the age of superannuation. 15.
Accordingly, I allow the present petition in terms of
directing the respondent-authorities to reconsider the claim
of the petitioner for promotion to the post of Senior
Medical Officer in terms of determining the bench mark
afresh by ignoring the ACR for the year 2005-06 and in
terms of taking into account the five previous ACRs i.e.
for the years 2008-09, 2007- 08, 2006-07, 2004-05 and
2003-04. It is further directed that if in pursuance to such
exercise, which shall be concluded positively within a
period of three months from the date of receipt of a
certified copy of this order, the petitioner fulfils the
requisite bench mark, then orders shall be issued
promoting the petitioner to the post of Senior Medical
Officer on a notional basis. The petitioner in such
eventuality would also be held entitled to notional pay
fixation on the post of Senior Medical Officer as on the
date of his superannuation and would be released the
revised pensionary/retiral benefits accordingly."
Accordingly, keeping in view the settled position of law,
the present writ petition is allowed...."

19. The same approved by the Division Bench holding that :-

"11. However, if the appellant-bank introduced the element of
'selection' for promoting its officials, then it cannot adopt the rule
of seniority-cum-merit. In that even, the bank needs to amend its
rules and insert the criteria of 'merit-cum-seniority' or 'selection'.
The fact remains that as per the existing provisions of the rules, the
respondent having earned all the favourable annual confidential
reports, was entitled to be promoted on seniority-cum-merit basis.
Denial of such benefit to him was undoubtedly violative of
Article
& 16
of the Constitution. Hence, the interference made by
learned Single Judge is fully justified."

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CWP No.27527 of 2017 20

20. Thus, in view of the fact that the Division Bench has

already held that denial of promotion at the hands of the Punjab State

Cooperative Agricultural Development Bank Limited by considering

un-communicated ACR would be violative of
Articles 14
and
of the

Constitution of India in view of law
laid down by
Apex Court in the

case of Dev Dutt.
vs.
Union of India and others
(supra) as approved

by Three-Judges Bench in the case of
Sukhdev Singh vs. Union of

India and others
(supra), the claim of the petitioner merits

acceptance.

21. Accordingly, present writ petition is allowed. Respondents

are directed to promote the petitioner from the date his juniors were

promoted i.e. 7th of July, 2017 as Deputy Manager and the financial

benefits due to the petitioner be disbursed accordingly. Needful be

done within a period of three months from the date of receipt of

certified copy of this order.

February 23, 2023 (PANKAJ JAIN)
Dpr JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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