Punjab-Haryana High Court
Pinki vs State Of Punjab And Ors on 5 March, 2025
Neutral Citation No:=2025:PHHC:031377
-1-
CWP-19070
19070-2020
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
220 CWP-19070-2020 (O & M)
Date of decision: 05.03.2025
Pinki ....Petitioner
Versus
State of Punjab and Others ...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
Present : Mr. Rakesh Sobti, Advocate for the petiti
petitioner.
Mr. Swapan Shorey, DAG, Punjab
*****
AMAN CHAUDHARY, J. (ORAL)
1. Prayer made in the present petition is for directing the
respondents to clear the probation of the petitioner w.e.f. 11.10.2011 and
grant annual increment and benefit of ACP on completion of 4 and 9
years of service in the cadre of Senior Assistant along with interest.
2. Learned counsel candidly admits that during the pendency of
the present petition, the main prayer has been accepted, however, ACP
has not been granted on account of 50% ACRs are not good with regard to
which he states that years in which there were non report certificate issued
for 2010-11,
11, 2011-12,
2011 2013-14
14 and 2019
2019-20, cannot be taken into
consideration as also the average reports which remained admittedly un
un-
communicated as has been held in Dr. Gurdev Singh Bhardwaj vs.
communicated,
State of Punjab and others 2013(1) RSJ 474
474, placing reliance on the
judgment of Hon'ble the Supreme Court in Dev Dutt vs. Union of India
(2008) 8 SCC 725, against which LPA has been dismissed vide order
dated 20.12.2012, relevant paras thereof read thus:
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"12. Following the dictum laid down by the Apex
Court, it is clear that the average report relating to the
year 2005-0606 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 20052005-06 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
respondent-authorities
have acted arbitrarily
rarily in not considering the ACR of the
petitioner for the year 2007
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 2007-08 and such
report had been duly received
ceived 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 29.2.2012, having attained the age of
superannuation.
15. Accordingly, I allow the present petition in
terms of directing the respondent
respondent-authorities to re-
consider 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
2005-0606 and in terms of taking into account the five
previous
evious ACRs i.e. for the years 2008
2008-09, 2007-08, 2006-
07, 2004-05 and 2003-04. 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
ation on the post of Senior Medical Officer as on
the date of his superannuation and would be released the
revised pensionary/retiral benefits accordingly."
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19070-2020
3. Hon'ble the Supreme Court allowed the appeal in
Rukhsana Shaheen Khan vs. Union of India aand others 2019(1)
Apex Court Judgments (SC) 231, observing that the uncommunicated
Annual Confidential Reports (ACRs), which are adverse to the appellant,
should have been relied upon for the purpose of consideration of the
appellant for promotion, in view of the decision of this Court in Sukhdev
Singh Vs. Union of India & Ors. reported in (2013) 9 SCC 566
566, and
thus directed the competent authority to ignore the uncommunicated
adverse ACRs and take a fresh decision in accordance with la
law, affording
an opportunity
rtunity of hearing in the process to the appellant.
4. The aforesaid facts having been brought out, during the
course of hearing, learned State counsel, on instructions, states that the
respondents shall re-examine
re examine the matter and decide afresh, taking into
account the aforesaid judgments and ignoring the uncommunicated
ACR(s), within a period of 6 months,
months which this Court has no reason to
believe the authorities would not address in a just, fair and reasonable
manner.
5. The aforesaid satisfies the learned
arned counsel for the petitioner.
6. The matter stands disposed of accordingly and if the
petitioner is found entitled, grant the benefit forthwith. Needless to say, if
the orders are adverse to her interest, the same may be passed after
granting opportunity of hearing to her and shall contain reasons,
whereupon she
he shall be free to seek legal redress thereupon
thereupon.
05.03.2025 (AMAN CHAUDHARY)
ashok JUDGE
Whether speaking/reasoned
spe : Yes / No
Whether reportable : Yes / No
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