Kewal Singh vs State Of Himachal
2021 Latest Caselaw 5823 HP

          IN THE HIGH COURT OF HIMACHAL PRADESH,
                          SHIMLA
                ON THE 20th DAY OF DECEMBER, 2021
                              BEFORE




                                                      .
               HON'BLE MR. JUSTICE AJAY MOHAN GOEL





    CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 4654 OF
                             2019
    Between:





    KEWAL     SINGH,  S/O   SH.
    PHUMAN RAM, R/O VILLAGE 45-
    MILE, P.O. LADAWARA, TEHSIL
    SHAHPUR, DISTRICT, KANGRA,





    H.P.
                                                    ....PETITIONER.
    (BY SH. SURINDER SHARMA, ADVOCATE)
    AND


    1.  STATE    OF   HIMACHAL
    PRADESH, THROUGH PRINCIPAL
    SECRETARY FINANCE TO THE


    GOVERNMENT OF HIMACHAL
    PRADESH AT SHIMLA-2.

    2. THE SECRETARY TECHNICAL




    EDUCATION      TO      THE
    GOVERNMENT OF HIAMCHAL
    PRADESH SHIMLA-2.





    3. THE DIERCTOR LOCAL AUDIT
    DEPARTMENT, H.P. SHIMLA 171





    009.

    4.  SH.     DINESH    CHANDRA
    LAKHANPAL, S/O SH. ONKAR
    CHAND,      SECTION    OFFICER
    (GRADE-II),         Y.S.PARMAR
    UNVERSITY, NAUNI.

    5.   SH. SANJEEV KUMAR, S/O
    SH. PREM CHAND, SECTION
    OFFICER    (GRADE-II) AUDIT
    CIRCLE     SIRMAUR    HEAD
    QUARTER AT NAHAN, DISTRIT
    SIRMOUR, H.P.




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                                       2




                                                     ....RESPONDENTS.




                                                             .
    (BY SH. ADARSH SHARMA, SH. SUMESH RAJ, SH. SANJEEV





    SOOD, ADDITIONAL ADVOCAT GENERALS, FOR
    RESPONDENTS NO.1 TO 3

    SH. SANKET SANKHYAN, ADVOCATE, FOR RESPONDENT





    NO.4

    SH. ASHOK KUMAR VERMA, ADVOCATE, FOR RESPONDENT
    NO.5.





    SH. MANJEET, ASSISTANT DIRECTOR, H.P. STATE AUDIT
    DEPARTMENT SHIMLA PERSENT IN PERSON).

    Whether approved for reporting?1 Yes

          This petition coming on for orders this day, the Court passed the

    following:

                             JUDGMENT

The controversy involved in this Writ Petition is in a very

narrow campus. The petitioner herein is aggrieved by notification

dated 5th August, 2014 (Annexure PE), vide which the private

respondents stood promoted to the post of Section Officer (Class-II

Gazetted), in the pay band of Rs.10300-34800+5000 Grade Pay with

immediate effect.

2. The case of the petitioner is that the post of Section

Officer is a selection post which in terms of notification dated 6th

November, 2009 (Annexure PA), is filled up by way of promotion from

amongst Class-III officials of the Local Audit Department who have

passed both parts of SAS examination of the Local Audit Department.

In terms of Annexure PD, which is a tentative seniority list of Junior

Auditors (Class-II non-gazetted), the name of the petitioner is

reflected in the same at serial No. 18, whereas the names of the

private respondents are reflected at serial No. 19, 21 and 22

.

respectively. The contention of the petitioner is that ignoring the fact

that he was senior to the private respondents, vide impugned

promotion order, the respondents have been erroneously promoted to

the post of Section Officer before the petitioner and this has resulted

on account of the consideration of those ACRs of the petitioner by the

DPC which ACRs were never conveyed to the petitioner. To be more

precise, in Para 9 of the petition, it has been mentioned that the

respondents conveyed only three ACRs to the petitioner i.e. ACRs of

the year 2010-11, 2011-12 and 2012-13 and the petitioner was not

aware of his previous ACRs grading and it was incumbent upon the

respondents to convey the ACRs of the petitioner prior to the year

2010 also. Primarily, it is on this ground that the impugned

promotion order has been challenged on the contention that non-

communicated ACRs of the petitioner have been taken into

consideration while assessing the suitability of the petitioner for the

post in question.

3. In order to verify the correctness of the allegations so

contained in the Writ Petition, the respondents/State was directed to

produce before the Court the proceedings of the ACRs on the

recommendation of which the impugned promotion order was passed

as also the previous ACRs of the petitioner. This record has been

produced today by the learned Additional Advocate General. A

perusal of the Minutes of the Meeting of the Departmental Promotion

Committee held on 15th July, 2014, demonstrates that it considered

the names of 9 candidates who were in the zone of consideration for

.

promotion to the post of 3 Un-Reserved Vacancies (2 clear cut & 1

anticipated) and it took into consideration the Annual Confidential

Reports for the relevant five years i.e. from 2008-2009 to 2012-13, for

assessing the merit/suitability of the candidate and also to satisfy

that no vigilance/departmental inquiry etc., was pending against him.

4.

On the strength of the said assessment, the DPC gave the

final assessment of "Good" to the petitioner and "Very Good" to the

private respondents. These recommendations culminated into the

issuance of the impugned promotion order.

5. Learned Additional Advocate General has made available

to the Court the Annual Confidential Reports of the petitioner from

2008-2009 to 2012-13, perusal of which demonstrates that in all

these ACRs, the petitioner was assessed as "Good". It is the admitted

case of the petitioner that he was communicated the ACRs for the

years 2010-11, 2011-12 and 2012-13. Thus, in other words, two

ACRs which have been gone into by the DPC which were not

communicated to the petitioner pertained to the year 2008-09 and

2009-2010. This is an admitted case and there is no need to further

dwell upon it. However, on the asking of the Court, learned Additional

Advocate General also made available to the Court the ACRs of the

petitioner pertaining to the year 2006-07 and 2007-2008. In these

two ACRs, the petitioner has been graded as "Very Good". It is settled

law that in case the DPC has taken into consideration certain un-

communicated ACRs, then either the eligibility of the candidate has

to be assessed by way of Review DPC by taking into consideration

.

only those ACRs which were communicated or in case previous

communicated ACRs are available, then the same can taken into

consideration. In this case as already mentioned hereinabove the two

ACRs of the petitioner prior to the year 2008-09, demonstrate that in

those two ACRs the petitioner was over all graded as "Very Good".

6.

Therefore, in these circumstances, this Court, as agreed,

deemed it fit that rather than remanding the matter back for a Review

DPC, it may undertake the exercise as per the instructions which

have been issued by the Department of Personnel pertaining to

promotion to a selection post to assess as to whether by giving the

benefit of the said two ACRs, in which he was over all graded as Very

Good can he be considered for promotion or not.

7. As is contained in the Hand Book On Personnel Matters

Vol-1, the assessment which a DPC makes while considering the

candidature of a person for promotion is by granting marks for each

type of assessment i.e. Outstanding 5 marks, Very Good 4 marks,

Good 3 marks and Fair 2 marks.

8. The DPC has graded the overall assessment of the

petitioner as "Good". By giving benefit of the two "Very Good" ACRs to

the petitioner pertaining to the year 2007-08 & 2008-09 and then by

taking into consideration the three communicated ACRs of the

petitioner pertaining to the year 2010-11 and 2011-12 and 2012-13,

the overall assessment of the petitioner worked out as 9+8 = 17, 17/5

= 3.4.

9. In terms of the Hand Book On Personnel Matters after

.

total evaluation is made, average marks are to be worked out by

dividing the total marks by the same number as the number of year

for which Confidential Reports have been considered. Officer who gets

average marks of 4.5 or above shall be considered of Exceptional

Merit. One getting an average marks of 3.5 or above but below 4.5

10.

r to shall be classified as "Very Good" and one getting an average of 2.5 or

above but below 3.5 marks shall be classified as "Good."

Thus, from the above, it is evident that even after giving

the benefit of the two "Very Good" ACRs to the petitioner, his overall

grading in terms of the instructions issued in this regard by the

Department of Personnel works out "Good" only because the marks

he gets after undergoing this entire process is 3.4 only.

11. In this view of the matter, as the private respondents who

were assessed as "Very Good" were rightly given a march over the

petitioner for the purpose of promotion to the post of Section Officer

at the relevant time, being a selection post, this petition being devoid

of any merit is dismissed, so also pending miscellaneous applications,

if any.

(Ajay Mohan Goel) Judge December 20, 2021 (vinod)