Punjab-Haryana High Court
Dr.Gurdev Singh Bhardwaj vs State Of Punjab & Others on 16 August, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.22617 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.22617 of 2010
DATE OF DECISION: AUGUST 16, 2012
Dr.Gurdev Singh Bhardwaj .......Petitioner
Versus
State of Punjab & others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.HK Aurora, Advocate, Advocate for the petitioner.
Mr.Suvir Sehgal, Additional Advocate General, Punjab.
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TEJINDER SINGH DHINDSA, J.
The challenge in the present petition is to the order dated 11.3.2010, Annexure P4, whereby the petitioner has been ignored for promotion to the post of Senior Medical Officer in the department of Health and Family Welfare, State of Punjab.
2. The petitioner, who belongs to the reserved category of Scheduled Castes, was appointed as Medical Officer, PCMS-II on 16.10.1979. In terms of order dated 27.4.1995, he was placed in the pay scale of `3000-4500 with designation of Senior Medical Officer w.e.f. 2.5.1988 upon completing eight years of regular service. In the seniority list of Medical Officers circulated by the respondent-Department, the petitioner was placed at CIVIL WRIT PETITION NO.22617 of 2010 2 Serial No.203, whereas private respondent No.4 - Dr.Devinder Singh, who also belongs to the reserved category of Scheduled Castes, was placed junior to him at Serial No.204.
3. A Departmental Promotion Committee was constituted in the month of January 2010 for considering eligible Officers for purposes of promotion of Medical Officers to the post of Senior Medical Officers. The petitioner, who asserts that he has never been conveyed any adverse remarks during his entire service career, is aggrieved by the order dated 11.3.2010, Annexure P4, whereby he has been denied promotion to the post of Senior Medical Officer, whereas his junior, respondent No.4, has been granted the promotion to the higher post. Having been denied promotion, the petitioner sought information as regards his ACRs under the provisions of Right to Information Act. The documents supplied by the Public Information Officer concerned revealed to the petitioner that the ACR for the year 2005-06 was shown as "average". It has been categorically pleaded by the petitioner that such report was never conveyed to him. That apart, the petitioner has been graded 'good' in the ACR for the year 2003- 04, 'good' for the year 2004-05, 'good' for the year 2006-07, 'very good' for the year 2007-08 and 'very good' for the year 2008-09.
4. Upon notice of motion having been issued, a reply was filed by the Director, Health and Family Welfare, Punjab, Chandigarh on behalf of respondents No.1 to 3. A stand has been taken by the respondent-authorities that the claim of the petitioner was duly considered for promotion to the post of Senior Medical Officer by the Departmental Promotion Committee in its CIVIL WRIT PETITION NO.22617 of 2010 3 proceedings held on 22.2.2010 but the petitioner was not found fit for promotion as he did not fulfil the required bench mark. Particulars in regard thereto have also been furnished which are in the following terms:
2003-04 - 'Good' - 2
2004-05 - 'Good' - 2
2005-06 - 'average' - 1
2006-07 - 'Good' - 2
2007-08 - Received but not available.
2008-09 - 'Very Good' - 3
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5. I have heard learned counsel for the parties at length.
6. The claim of the petitioner for purposes of promotion to the post of Senior Medical Officer would require adjudication in the light of the statutory provisions contained in the Punjab Civil Medical Service (Class-I) Rules, 1972, amendments made therein i.e. Punjab Civil Medical (State Service Class-I) (Ist Amendment) Rules 2003 as also the instructions issued vide memo dated 29.12.2000 and memo dated 6.9.2001 by the Department of Personnel and Administrative Welfare, State of Punjab. There is no dispute as regards the fact that the criteria for filling the post of Senior Medical Officer was to be on the basis of merit-cum- seniority. The minimum bench mark required for purposes of promotion to the post of Senior Medical Officer was to possess a grading of 'very good' and for which 12 marks were required. The evaluation of the ACRs on the basis of afore-noticed instructions were as under:
Outstanding - 4
Very Good - 3
CIVIL WRIT PETITION NO.22617 of 2010 4
Good - 2
Average - 1
7. Furthermore, in terms of the instructions of the Personnel Department, the ACRs of the last five years were to be considered for purposes of promotion.
8. Learned counsel for the petitioner refers to the proceedings of the Departmental Promotion Committee, Annexure P3, appended along with the petition wherein the name of the petitioner had been considered and he had been assigned ten numbers and, accordingly, held to have not fulfilled the required bench mark. In such proceedings, it had been noticed that there was no complaint/enquiry pending against the petitioner and his integrity had not been doubted. The relevant extract of the proceedings of the Departmental Promotion Committee in relation to the petitioner are extracted hereunder:
"NAMES OF THE DOCTORS BELONGING TO RESERVE CATEGORY (SCHEDULE CASTE) WHO ARE TO BE CONSIDERED FOR PROMOTION AS SENIOR MEDICAL OFFICERS:-
1. Dr.Gurdev Singh, Service No.3068, PHC, Chakowal (S.C.) This doctor had joined the service as PCMS-2 on 1.5.80. There is no complaint/enquiry pending against this doctor. This doctor has bench mark of 10 numbers and does not fulfil the requisite bench mark. The honesty of this doctor is not doubtful. The name of this doctor for the post of Senior Medical Officer is not liable to be considered. The detail of annual confidential reports is as under:-
2003-04 - 'Good' - 2
2004-05 - 'Good' - 2
2005-06 - 'average' - 1
CIVIL WRIT PETITION NO.22617 of 2010 5
2006-07 - 'Good' - 2
2007-08 - Received but not available.
2008-09 - 'Very Good' - 3
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9. Learned counsel appearing for the State although admitted that the ACR for the year 2005-06 had not been conveyed to the petitioner, has taken a stand that since such report was not conveyed and the grading was 'average', as such, there was no need to communicate the ACR for the year 2005-06 to the petitioner. Still further, even though it has been admitted that for the year 2007-08, the petitioner had been graded as 'very good', but such ACR even though having been received but was not available at the time of preparation of the agenda note for the Departmental Promotion Committee and, accordingly, the same had not been considered. Learned State counsel would further submit that even if this ACR was to be considered by the Departmental Promotion Committee, even then the total numbers that could have been assigned in favour of the petitioner would be eleven i.e. 2004-05, 'good' - (2), 2005-06, 'average' - (1), 2006-07, 'good' - (2), 2007-08, 'very good' - (3) and 2008-09, 'very good' - (3). Accordingly, learned counsel would contend that the petitioner would still fall short of the requisite bench mark of twelve.
10. The first question that arises for consideration is as to whether the ACR relating to the year 2005-06 wherein the petitioner had been graded as 'average' and the same having not been communicated to the petitioner could have been taken into CIVIL WRIT PETITION NO.22617 of 2010 6 account while determining the bench mark for purposes of promotion to the post of Senior Medical Officer.
11. The Hon'ble Supreme Court in the case of Dev Dutt v.
Union of India and others reported as (2008) 8 SCC 725 had held in the following terms:
"Learned counsel for the respondent relied on a decision of this Court in Vijay Kumar vs. State of Maharashtra & Ors. 1988 (Supp) SCC 674 in which it was held that an un-communicated adverse report should not form the foundation to deny the benefits to a government servant when similar benefits are extended to his juniors. He also relied upon a decision of this Court in State of Gujarat & Anr. vs. Suryakant Chunilal Shah ,1999 (1) SCC 529 in which it was held:
"Purpose of adverse entries is primarily to forewarn the government servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the government servant to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance".
On the strength of the above decisions learned counsel for the respondent submitted that only an adverse entry needs to be communicated to an employee. We do not agree. In our opinion every entry must be communicated to the employee concerned, so that he may have an opportunity of making a representation against it if he is aggrieved.
In the present case the bench mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was CIVIL WRIT PETITION NO.22617 of 2010 7 that the candidate should have 'very good' entry for the last five years. Thus, in this situation the 'good' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a 'good' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances.
Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the 'good' entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the 'good' entry, which was not done in this case. Hence, we are of the opinion that the non- communication of the 'good' entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable."
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 CIVIL WRIT PETITION NO.22617 of 2010 8 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 29.2.2012, having attained the age of superannuation.
15. Accordingly, I allow the present petition in terms of directing the 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 2005-06 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 CIVIL WRIT PETITION NO.22617 of 2010 9 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.
16. The petition is allowed in the aforementioned terms.
( TEJINDER SINGH DHINDSA )
August 16, 2012 JUDGE
SRM
Note: Whether to be referred to Reporter? (Yes/No)