Himachal Pradesh High Court
Karam Singh Kaundal vs Rukhsana Shaheen Khan Versus ... on 22 June, 2022
Bench: Jyotsna Rewal Dua
REPORTED
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 22nd DAY OF JUNE 2022
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION NO. 4945 OF 2021
Between:-
KARAM SINGH KAUNDAL
r to
S/O LATE SH. MUNSHI RAM,
R/O VILLAGE DHAGOH, P.O. BAHAL,
TEHSIL GALORE, DISTRICT HAMIRPUR, H.P.
.....PETITIONER
(BY SH. SANJEEV BHUSHAN, SENIOR ADVOCATE
WITH SH. RAJESH KUMAR, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH, THROUGH
SECRETARY (TECHNICAL EDUCATION),
TO THE GOVERNMENT OF HIMACHAL
PRADESH.
2. DIRECTOR, DEPARTMENT OF TECHNICAL
EDUCATION, VOCATIONAL AND INDUSTRIAL
TRAINING, SUNDERNAGAR,
DISTRICT MANDI, H.P.
3. SMT. MANJU SHARMA,
W/O SH. SANJEEV GAUTAM,
PRESENTLY POSTED AT GOVERNMENT
POLYTECHNIC BANIKHET, TEHSIL BANIKHET,
DISTRICT CHAMBA, H.P.
.....RESPONDENTS
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2
(SH. NARENDER THAKUR, DEPUTY
ADVOCATE GENERAL, FOR R-1 & R-2,
.
NEMO FOR R-3, THOUGH SERVED)
_______________________________________________________
This petition coming on for orders this day, the
Court passed the following:
ORDER
For the reasons that petitioner's Annual
Performance Appraisal
r Reports of five years under
consideration did not meet the required benchmark of 'Very
Good' prescribed in the office memorandum dated 21.6.2016,
petitioner was denied promotion to the post of Principal
(Polytechnic). He was superseded by his juniors. He has
instituted present petition claiming promotion to this post from
due date.
2. Facts
2(i) The petitioner is presently serving as Head of
Department (Applied Sciences and Humanities) in the
Government Polytechnic, Sundernagar, District Mandi, H.P. He
was initially appointed as Lecturer (Mathematics) on regular
basis on 6.12.1989 and promoted to the post of Senior Lecturer
on 14.3.1997. The petitioner was further promoted as Head of
Department (HOD) on 13.2.2009. Next promotion available to
the petitioner was to the post of Principal in the pay scale of
Rs. 37,400-67,000 + 8700 Grade Pay.
.
2(ii) Four posts of Principal (Polytechnic) had fallen
vacant due to superannuation of the incumbents. The
respondents-state initiated the process for filling-up these
vacant posts of Principals (Polytechnic). In accordance with the
Recruitment and Promotions Rules of the post of Principal
(Polytechnic), the same was to be filled up 100% by promotion
from amongst the Heads of department and Deputy Directors,
Technical Education, Vocational and Industrial Training
possessing five years regular service or regular combined with
continuous adhoc service rendered up to 31.03.1991, if any, in
the grade.
2(iii) A meeting of Departmental Promotion Committee
(DPC) was held on 27.4.2021. Name of the petitioner also fell
in the consideration zone in terms of R&P Rules. The DPC
considered cases of 13 officers for promotion to the posts of
Principal. On the basis of record and overall assessment of all
the officers and their grading in the ACRs, the DPC
recommended the names of following HODs for promotion to
the post of Principal (Polytechnic) on regular basis:-
i) Shri Acchar Singh;
ii) Shri Satish Dhingra; and
.
iii) Smt. Manju Sharma (respondent No. 3 herein).
The above three persons were promoted as
Principal, Polytechnic, Class-I (Gazetted) vide notification dated
28.4.2021 (Annexure P-1).
2(iv)
Shri Satish Dhingra and Smt. Manju Sharma
promoted to the post of Principal were juniors to the petitioner.
Since the name of the petitioner did not figure in the list of those
promoted to the post of Principal, the petitioner applied for
documents under the Right to Information Act to search for
reasons for his supersession.
2(v) The documents obtained by the petitioner and
appended alongwith this writ petition revealed that petitioner's
name though figured at Serial No. 4 in the list of those
considered by the DPC for promotion to the post of Principal
(Polytechnic), however, on considering Annual Confidential
Report of the petitioner for the last five years i.e. 2015-2016,
2016-2017, 2017-2018, 2018-2019 and 2019-2020, the DPC
held him unfit for promotion on the ground that he did not
possess the required benchmark of 'Very Good' in his ACRs.
The petitioner who is set to superannuate on
30.6.2022, filed this writ petition for the following substantive
.
relief:-
"i. That appropriate writ, order or direction may very kindly
be issued and Annexure P-1, notification dated 28 th
April, 2021 may very kindly be quashed and set aside
to the extent, whereby persons junior to the petitioner
has been promoted by further directing the
respondents to promote the petitioner to the post of
Principal (Polytechnic), Class-I (Gazetted) with effect
from 28th April, 2021, with all consequential benefits of
pay, arrears, seniority etc., in the interest of law and
justice."
3. Contentions
I have heard learned Senior Counsel for the
petitioner, the learned Deputy Advocate General for
respondents No. 1 & 2 and considered the material available on
record.
3(i) On behalf of respondents No. 1 and 2, it has not
been disputed that the petitioner was due for promotion to the
post of Principal (Polytechnic) and his case for promotion to the
said post was considered by the DPC in its meeting held on
27.4.2021. It has also not been disputed that the petitioner was
found unfit for promotion by the DPC and his juniors namely
Shri Satish Dhingra and Smt. Manju Sharma (respondent No. 3
herein) were promoted as Principals on 28.4.2021 on the basis
of recommendations of the DPC made on 27.4.2021. The
.
justification given by the respondents for not promoting the
petitioner to the post of Principal is that in terms of an Office
Memorandum dated 21.6.2016 issued by the Department of
Personnel, to the Government of Himachal Pradesh, an officer
is to be considered for promotion to the selection post carrying
grade pay Rs. 7600/- and above only if he meets prescribed
benchmark of 'Very Good' in all the ACRs of five years under
consideration. The petitioner did not satisfy required
benchmark of 'Very Good' for promotion to the post of Principal,
he was, therefore, found unfit for promotion.
3(ii) Learned senior counsel for the petitioner submitted
that the ACRs for all the five years period in question were not
communicated to the petitioner. Even the overall entries
recorded therein were not brought to the notice of the petitioner
by the respondent-department. Petitioner had no chance to
represent against the grading in the ACRs. Learned senior
counsel argued that on the strength of un-communicated ACRs
of the petitioner for the period in question, the respondents-
department cannot debar him from being promoted to the post
of Principal (Polytechnic). In support of these submissions,
reliance was placed upon Dev Dutt versus Union of India &
.
Others, (2008) 8 SCC 725, Abhijit Ghosh Dastidar versus
Union of India and Others, (2009) 16 SCC 146, Sukhdev
Singh versus Union of India, (2013) 9 SCC 566 and
Rukhsana Shaheen Khan versus Union of India, Civil
Appeal No. 32 of 2013, decided on 28th August, 2018. Prayer
was made to direct the respondents to consider the case of
promotion of the petitioner to the post in question ignoring the
un-communicated ACRs.
4. Observations
Upon hearing learned counsel for the parties and
taking note of the material available on record, I am of the
considered view that this petition deserves to be allowed for the
following reasons:-
4(i) Following material facts are not in dispute:
4(i)(a) Petitioner was eligible in terms of Recruitment and
Promotion Rules for promotion to the post of Principal
(Polytechnic).
4(i)(b) The respondents had convened a meeting of
Departmental Promotion Committee on 27.4.2021 to effect
promotions for the vacant post of Principals (Polytechnic). The
DPC considered the names of 13 persons who were eligible in
.
terms of Recruitment and Promotion Rules for promotion to the
post of Principal. The name of petitioner figured at serial No. 4
in the list of those considered by the DPC. The petitioner was
declared 'unfit' for promotion by the DPC for the reason that he
did not satisfy the required benchmark of 'Very Good' in all the
Annual Performance Appraisal Reports (APARs) for five years
period under consideration.
4(i)(c) The office memorandum dated 21.6.2016 provides
that in case of an officer to be considered for promotion to the
'selection' post carrying grade pay Rs. 7600/- and above, the
benchmark of 'Very Good' is to be invariably met in all APARs of
five years under consideration.
4(i)(d) The APARs of the petitioner under consideration
pertain to years 2015-2016 to 2019-2020. The post of Principal
is a selection post with grade pay Rs. 8700/-. Petitioner in his
five APARs under consideration has been overall graded as
under:
Name of Date of Birth 2015-16 2016-17 2017-18 2018-19 2019-2020
officers
S/Shri/Smt.
Karam Singh 10.06.1964 Good Good Good V.G. Good
Kaundal
4(ii) With the assistance of learned counsel for the
parties, I have also seen the APARs of the petitioner appended
.
alongwith the petition as Annexure P-5 (colly). In all these
"is he fit for independent charge for promotion to
next higher post".
The remarks against the above column in all the
APARs of the petitioner is "yes".
It defies logic that on one hand petitioner in the
APARs is being considered 'fit' for holding independent charge
on promotion whereas on the other hand because of overall
grading of 'good' in the very APARs, he is being held by the
DPC as 'unfit' for promotion on account of Office Memorandum
dated 21.6.2016. Perhaps either the column in the APARs are
not in tune with the Office memorandum dated 21.6.2016 or this
memo was not in the knowledge of Reporting/Reviewing/
Accepting Authorities who dealt with APARs in question. In fact
APAR of the petitioner for the year 2015-2016 is of the period
prior to the issuance of Office memorandum dated 21.6.2016. I
have also considered the entries and remarks made in the
APARs. The entries and remarks per-se do not convey any
negative aspect of the petitioner. The remarks do not convey
any intention of the reporting/reviewing/assessing authority of
.
denying promotion to the petitioner. Be that as it may.
4(iii) The Hon'ble Apex Court in Dev Dutt's case supra
has held that fairness in public administration and
transparency require that all entries in the Annual Confidential
Reports of a public servant must be communicated within a
reasonable period whether it is a poor, fair, average, Good or
Very Good entry. The object of communication is to enable the
employee to know about the assessment of his work and
conduct by his superiors, enabling him to improve his work in
future.
In Abhijit Ghosh Dastidar's case supra relying upon
Dev Dutt's case, it was held that non-communication of entries
in the Annual Confidential Report to a public servant has civil
consequences affecting his chances of promotion and getting
other benefits. Non-communication of adverse ACRs would be
violative of Article 14 of the Constitution.
In Sukhdev Singh's case supra, a larger bench of
Hon'ble Apex Court affirmed the correctness of the view taken
in Dev Dutt's case but held that every entry in ACR must be
communicated to the public servant and communication of only
adverse entry is not enough.
.
In Rukhsana Shaheen Khan's case, the Hon'ble
Apex Court observed that it is well settled legal position that un-
communicated and adverse ACRs cannot be relied upon.
In (2019) 4 SCC 276, titled Anil Kumar versus
Union of India and Others, the Hon'ble Apex Court was
considering the case of an employee who was aggrieved by the
rejection of his claim for financial upgradation on the ground put
forth by his employer that he did not fulfill the required
benchmark of "Very Good" for the financial upgradation. The
grievances of the appellant therein was that Annual Confidential
Reports for the period in question in which he had failed to meet
the benchmark were not communicated to him. Taking note of
its previous judgments rendered in Dev Dutt vs. Union of India,
Sekh Dev Singh vs. Union of India, the Hon'ble Apex Court held
that failure to communicate the ACRs had deprived the
appellant therein of the opportunity to submit his representation
in the matter of financial upgradation. Having held this, the
Hon'ble Apex Court also noticed that the employer in the said
case had furnished an opportunity to the appellant therein to
submit his representation before effecting the promotion in
question and also taking note of the fact that appellant therein
.
had since retired from his service and was claiming grant of
Modified Assured Career Progression (MACP) benefits, which
was not a matter of right, therefore, in the facts and
circumstances of the case, the appellant therein was granted an
opportunity to submit a representation in respect of the ACRs
for the concerned years within a period of four weeks where he
did not fulfill the required benchmark for financial upgradation.
Time was given to the respondents to consider and to take
decision on the said representation. In case of decision going
on in favour of the appellant therein, consequential directions
were given to the respondent/employer for giving due and
admissible benefits to the employee therein.
In JT 2022 (3) SC 430, titled Abhay Jain v. The
High Court of Judicature for Rajasthan and Anr. the ACRs
having adverse entries were not communicated to the judicial
officer within reasonable time. Taking note of judgments
delivered in Dev Dutt's and Sukhdev Singh's cases supra, the
Apex Court held as under:
"47. Moreover, it is not disputed that the ACRs were
not communicated to him within reasonable time. In this
context, a 3-Judge Bench of this Court in Sukhdev Singh
vs Union of India [JT 2013 (8) SC 270] has held that:
.
"In our opinion, the view taken in Dev Dutt [Dev
Dutt vs Union of India] 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." (emphasis supplied)
Hence, in light of the above, the non-communication of
the ACRs to the appellant in the present case is arbitrary
and as has been held by this court in Maneka Gandhi vs.
Union of India [1978 (1) SCC 248], such arbitrariness
violated Article 14 of the Constitution of India.
71. To conclude, we are of the firm view that in the
present case there was no material to showcase
unsatisfactory performance of the appellant in terms of
requirement under Rule 45 and 46 of the RJS Rules,
2010. Moreover, the appellant's discharge was not
simpliciter, as claimed by the respondent. The non-
communication of the ACRs to the appellant has been
proved to be arbitrary and since the respondent choose to
hold an enquiry into appellant's alleged misconduct, the
termination of his service is by way of punishment
.
because it puts a stigma on his competence and thus
affects his future career. In such a case, the appellant
would be entitled to the protection of Article 311 (2) of the
Constitution. Moreover, the adverse comments in the
ACR for the year 2015 could not have been the basis on
which the appellant was discharged from service. The
appellant was never granted an opportunity to improve
and there was no intimation to him about his performance
being unsatisfactory. Importantly, no verifiable complaint
was filed against the appellant that could form the basis
of the disciplinary proceeding against him. After perusing
all the relevant record, we hold that the appellant was
competent to pass the bail order dated 27.04.2015 and
that the Respondent has not been able to prove the
presence of any extraneous consideration or ulterior
motive on the part of the appellant. It should also be
highlighted here that neither the bail order dated
27.04.2015 was ever challenged by the State before any
Court of law, nor was any complaint received against the
appellant regarding the said bail order. This is not the
case where there are strong grounds to suspect the
appellant's bona fides. Even if appellant's act is
considered to be negligent, it cannot be treated as
"misconduct".
4(iv) In the instant case, during hearing of the case,
learned Deputy Advocate General placed on record the copy of
instructions dated 21.6.2022, imparted from the office of Special
Secretary (TE) to the office of learned Advocate General.
According to these instructions, the APARs of the petitioner for
the period in question were not communicated to him. These
instructions have been taken on record. In the instant case
neither the APARs for the period in question have been
.
communicated to the petitioner nor any opportunity till date to
represent against the same was granted to the petitioner. The
petitioner is set to superannuate on 30.6.2022. One of the
APAR of the petitioner i.e. for the year 2019-2020 fulfills the
required benchmark "Very Good". One of his APAR i.e. for the
period 2015-2016 is prior in time to the office memorandum
issued on 21.6.2016 mandating 'Very Good' benchmark. All the
APARs of the petitioner for the period in question otherwise
hold him fit for promotion. No adverse entry per se is reflected
in any of the APARs.
5. Considering all the above aspects, the conclusion is
that petitioner has made out a case in his favour. Accordingly,
this petition is allowed. The respondents No. 1 and 2 are
directed to convene a review DPC for considering the case of
the petitioner for promotion to the post of Principal (Polytechnic)
without considering the un-communicated ACRs for the period
in question. This exercise will be completed within a period of
three weeks from today. Needless to observe that in case the
petitioner is promoted to the post of Principal, he will be entitled
to all the consequential benefits from due date. Pending
miscellaneous application(s), if any, shall also stand disposed
.
of.
Jyotsna Rewal Dua
Judge
June 22, 2022
(vs)
r to
