Punjab-Haryana High Court
Ashok Kumar Sikka vs State Of Punjab And Ors on 21 November, 2014
Author: Amol Rattan Singh
Bench: Amol Rattan Singh
CWP No. 12870 of 2013 -:1:-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 12870 of 2013
Date of decision : 21.11.2014
Ashok Kumar Sika ...... Petitioner
Versus
State of Punjab and another
...... Respondent
CORAM : HON'BLE MR.JUSTICE AMOL RATTAN SINGH
***
Present:- Mr. Kanwaljit Singh, Sr. Advocate
with Mr. Amandeep Singh, Advocate
for the petitioner.
Mr. L.S. Virk, Addl. A.G. Punjab.
***
AMOL RATTAN SINGH, J.
This petition impugns the order dated 27.02.2012 (Annexure P-14) passed by the 1st respondent, as also the communication dated 01.04.2013 (Annexure P-17), by which his representation dated 17.10.2012 (Annexure P-16), also addressed to the 1 st respondent, was conveyed to him as having been filed away.
2. Effectively, the petitioner is seeking a writ of mandamus directing the respondents to grant him the benefits of the Assured Career Progression Scheme (ACP Scheme) upon his having completed 4, 9 and 14 years of service in a cadre, from the dates that he actually completed the said periods of service.
AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No. 12870 of 2013 -:2:-
3. The petitioner was nominated to the Punjab Civil Service Cadre in the year 1992 and eventually retired from the said cadre on 31.08.2010, upon attaining the age of superannuation.
As per the case set out in the writ petition, and as argued by the learned Senior Counsel appearing for the petitioner, Mr. Kanwaljit Singh, the petitioners' service record throughout his service career spanning 35 years (including the period in different capacities before 1992), was excellent/good. However, though his annual confidential report (ACR) for the year 1998-99, when he was serving as SDM, Rajpura, District Patiala, was recorded as 'Very Good' by both, the Deputy Commissioner, Patiala as also the Divisional Commissioner, the Financial Commissioner (Revenue), down graded the same to an 'Average' report and also recorded the following remarks:-
" I am not inclined to agree with the assessment. In " Golden Forest" Case, he was asked to direct the parties to file returns under Land Reforms Act. He never executed those orders. An Average Officer. Nothing outstanding about it. Assessment of D.C./Commissioner is incorrect.
Grading-Average.
FC(R) 23.01.2001"
4. In view of the above report, the petitioner was not granted a higher pay scale w.e.f. the year 2001, after he had completed 9 years of service in the PCS cadre, which otherwise would have fallen due to him in terms of the ACP Scheme, a copy of which is annexed with the petition as Annexure P-12.
Though the said scheme came into effect only from the date of AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No. 12870 of 2013 -:3:- its issuance, i.e. 03.11.2006, however, as stated in the petition, in terms of the said scheme, the petitioner was granted the 'ACP' scale after completion of 4 years of service, which was (retrospectively) granted to him w.e.f.01.01.1997.
5. Up to this point, there is no dispute between the petitioner and the respondents. However the next scale which became due to him, after completion of 9 years of service in 2001 (actually w.e.f. 01.01.2002) as already observed above, was actually granted to him only w.e.f. 01.01.2005. As per the respondents, the effect of the remarks in the ACR for the year 1998-99, continued till that date, i.e. 01.01.2005.
Consequently, the next higher scale under the Scheme was granted to the petitioner w.e.f. 01.01.2010, i.e. 5 years after the grant of the previous scale to him on 01.01.2005, in view of the fact that though the 3rd ACP scale was to be granted after 14 years of service in a cadre, the 14th year point also got postponed in the case of the petitioner, to a date three years thereafter, because of the delay in granting the 2nd stage of the ACP.
6. Though the petitioner has referred to the merits of the issue on account of which the adverse remarks were incorporated by the Financial Commissioner (Revenue), who also down graded his ACR, the details thereof need not be adverted to for the purpose of this petition, except very briefly.
As per the petitioner, he had acted immediately upon the matter having been entrusted to him for service of notices upon three companies that had purchased land in excess of the permissible area stipulated in the Punjab Land Reforms Act, 1972.
AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No. 12870 of 2013 -:4:-
It is the petitioners' case that the matter was 1st brought to the knowledge of the Deputy Commissioner, Patiala, by the Financial Commissioner Revenue vide communication dated 24.02.1998 (Annexure P-1), after which it was conveyed by the Deputy Commissioner to the Financial Commissioner, vide letter (Annexure P-2), that the matter was being now monitored by the SDM, Rajpura. The petitioner has also annexed with the petition, copies of three notices/communications addressed to the three companies that had bought the land in excess of the permissible area laid down in the Act of 1972. The reply of the Companies and follow up action taken by the petitioner, by way of passing an order directing the Niab Tehsildar-cum-Circle Revenue Officer concerned to collect information of the total land holdings actually held by these Companies and subsequent show cause notices issued to the Companies on 31.08.1988 by the petitioner, for delivery of possession of surplus area, have also been annexed with the petition.
However, despite the above, the petitioners' ACR was down graded by the Financial Commissioner with the remarks reproduced earlier.
7. The petitioners' case further is that these remarks were never conveyed to him for a period of 3 years and were actually conveyed only by a letter dated 05.10.2001, addressed to him by the Financial Commissioner Revenue, a copy of which is annexed as Annexure P-9.
It needs to be noticed here that though the petitioners' case is that the remarks were not conveyed for three years, the obvious reference is to the fact that the remarks are for the period 1998-99. However, the remarks, as already noticed above, were actually made only on 23.01.2001, AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No. 12870 of 2013 -:5:- and thereafter were conveyed on 05.10.2001.
8. The petitioners' contention, therefore, is that the remarks were wholly uncalled for in the circumstances, due to which he made representations for expunction of the same, which were eventually rejected on 22.12.2003, as conveyed to him vide communication, Annexure P-11.
9. Mr. Kanwaljit Singh, learned Senior Counsel, submitted that, firstly, the remarks themselves are wholly un-called for, especially in view of the fact that the reporting authority, i.e. the Deputy Commissioner and the Divisional Commissioner, had graded the petitioner to be "Very Good", justifying the said grading by giving details, in the different columns provided for the purpose, in the 'ACR' proforma.
Next, Mr. Kanwaljit Singh submitted that even accepting the fact that the expunction of the remarks has not been made, the overall grade granted to the petitioner is "Average" and there is no adverse comment on his honesty, in any manner whatsoever. Thus, as per the learned Senior Counsel, even in terms of the parameters set out in the 'ACP' Scheme itself, there was no ground for not granting the petitioner the scale otherwise admissible to him upon completion of 9 years of service, w.e.f. 01.01.2002.
In this regard, Mr. Kanwaljit Singh pointed to the relevant part of sub-clause (f) of Clause 3 of the Scheme (Annexure P-12), which reads as under:-
"The procedure for assessing the work and conduct for placement in the higher scales shall be the same as applicable to the case of promotion. The placement in higher scale shall be allowed only to place employees whose overall service record during the span of AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No. 12870 of 2013 -:6:- satisfactory service, is adjudged as "Good" and the employee is otherwise suitable for promotion. "Good"
record shall mean that more than 50% Annual confidential Reports are good and out of last three years reports at least two should be "Good". For the remaining years the bench mark may be "Average".
10. Thus, learned Senior Counsel pointed out, that the bench mark for grant of a higher 'ACP' scale is that the overall service record should be good, and it has been further clarified to mean that at least 50% of the Annual Confidential Reports of an officer/official should be good. The further contention is that of the last three years (prior to the date on which the next scale is to be granted) at least two reports should be good, even with the remaining ACRs' being graded as "Average".
Learned counsel submitted that right from the year 1993-94, till the year 2008-2009, the petitioners' grading had either been outstanding/very good/good, with only one "Average" report, for the period 02.04.1998 and 20.04.1998, i.e. the grading given to him on 20.03.2001 (reproduced earlier above).
Hence, Mr. Kanwaljit Singh submitted that the impugned order (Annexure P-14), by which the petitioner has been granted the 2 nd 'ACP' scale only w.e.f. 01.01.2005 in stead of 01.01.2002 and consequently the 3rd 'ACP' scale w.e.f. 01.01.2010 in stead of 01.01.2007, deserves to be quashed.
11. Mr. L.S. Virk, Addl. A.G. Punjab, in reply, pointed to the counter filed by the respondents to the writ petition, to submit that even the remarks recorded by the Financial Commissioner Revenue for the year AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No. 12870 of 2013 -:7:- 1998-99, would have to be taken as adverse remarks, the effect of which would continue in the same manner that adverse remarks would continue to hold the field while considering a persons' case for promotion. He specially pointed to the 1st part of Clause 5 of the instructions dated 17.04.2000 (Annexure R-1 with the reply), in this regard.
The said document/instructions, also are, in fact, the issuance of an ACP Scheme, prior to the scheme dated 03.11.2006. In fact, for the period in question, i.e. the years 2001-02, it would be these instructions, dated 17.04.2000, that would govern the ACP scheme, and not the instructions annexed with the petition (Annexure P-12), dated 03.11.2006.
However, clause 5 of the instructions dated 17.04.2000, is, in fact, ad-verbatim the same as the relevant part of sub-clause (f) of Clause 3 of the 'ACP' Scheme issued on 03.11.2006 (already reproduced hereinabove).
12. Mr. Virk next pointed to the instructions of the Punjab Government dated 06.09.2001 (Annexure R-2 with the reply) to submit that since the procedure for assessing the work and conduct for placing an officer in a higher scale under the 'ACP' Scheme, is the same as that which applies to grant of promotion, these instructions also would apply for grant of 'ACP' scales.
The instructions dated 06.09.2001 lay down the bench mark for considering a person for promotion to the next rank. A perusal thereof shows that there are different bench marks set for officers to be promoted to Group-A and Group-B Posts, i.e. for consideration for promotion as Class-I and Class-II officers, respectively.
AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No. 12870 of 2013 -:8:-
Clause 1(c) of these instructions lays down the benchmarks, and reads as under:-
"( c ) It has been decided to retain the numbering system of evaluation of ACRs as contained in the instructions dated 19.12.2000, which is as under:-
'Outstanding' : 4 marks
'Very Good' : 3 marks
'Good' : 2 marks
'Average' : 1 Mark.
ACRs for the last 5 years are to be taken into consideration for promotion. The criteria for promotions will as under:-
(1) The case pertaining to the promotions as Head of Departments would be decided strictly on the basis of merit-
cum-seniority. The minimum bench mark for promotion for such posts would be "Very Good". The marking system adopted earlier in instructions dated the 29th December, 2000 would be followed and a minimum of 15 marks would be required to be considered as Very Good. The officer who is graded as Outstanding would supersede the officer granted as Very Good.
(2) For promotion to posts falling in Group 'A' other than Head of Departments, the minimum bench mark will be Very Good within at least 12 marks. Amongst those meeting this criteria, there would be no super session.
(3) In the case of promotion to posts falling in Group 'B' the minimum bench mark will be 'Good' and there would be no super session i.e. promotions would be made strictly on seniority-cum-merit.
(4) For making promotion in all the categories there should not be any adverse remarks in the ACRs under consideration."
AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No. 12870 of 2013 -:9:- Thus the contention of the State Counsel is that since the procedure for grant of ACP Scales is the same as for making promotion, then as per the Sub-clause 1 (c )(4), there should not be any adverse remarks in the ACRs under consideration.
Learned State Counsel, therefore, submitted that the writ petition be dismissed.
13. Having considered the rival arguments and having gone through the pleadings before this Court, I find that the stand of the respondents is misconceived. No doubt both the sets of instructions, i.e. Annexure P-12 with the writ petition and Annexure R-1 with reply, stipulate that the procedure for assessing the work and conduct for placement in the higher scale would be same as applicable to a case of promotion. However, in my opinion, that condition does not extend to application of the same bench marks as are applicable for promotion, to the case for grant of higher ACP scales. If that were so, then after the opening lines of the relevant part of Clause 3 (c ) of Annexure P-12 and Clause 5 of Annexure R-1, there would have been no need to further clarify that the overall service record should be adjudged as "Good" and a good record would simply mean more than 50% Annual Confidential Reports, of which the last two should be 'Good' whereas the remaining can be average.
This is in stark contradistinction to the bench marks set down for promotion vide the instructions dated 06.09.2001 (Annexure R-2 with the reply), which specifically assign marks to different gradings in the ACRs, from 'Outstanding' to 'Average'. It is further stipulated in Annexure R-2 that where promotion is to be made to the post of Head of the AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No. 12870 of 2013 -:10:- Department, the minimum bench mark for such promotion would be "Very Good" as per the marking system adopted in earlier instructions dated 29.12.2000 and a minimum of 15 marks would be required for an officer to be considered "Very Good".
Similarly, for promotion to other posts falling in Group-A, other than the post of Head of the Department, the minimum bench mark set in the instructions (Annexure R-2) is 12 marks.
Further, for promotion to posts falling in Group-B, the minimum bench mark is simply "Good".
Hence, I find the reasoning adopted by the respondents in their reply and as argued by Additional Advocate General, Punjab, to be wholly misconceived, in view of the fact that, specifically, different bench marks have been set out for promotion, as opposed to for the grant of 'ACP' scales, in different instructions governing each issue.
As such, the "words procedure for assessing the work and conduct for placing in the higher pay scale shall be the same as applicable to a case of promotion" can only mean that the screening would be by the same process as is done for promotion, i.e. a Screening Committee would be set up, which would assess the work and conduct of an officer, but as per the bench mark laid down in Clause 5 of the instructions dated 17.04.2000/Clause 3 (f) of the instructions dated 03.11.2006. If that were not so, that part of the above two clauses, as lays down that a 'Good' record would mean more than 50% 'Good' ACRs', out of which the last two years' should also be Good, would be a redundant clause.
In fact, if the respondents' contention would be the correct AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No. 12870 of 2013 -:11:- interpretation, then, the same criteria/bench marks as are contained in the instructions governing procedure for promotion, would have also been incorporated in the instructions governing the grant of ACP scales. There would have been no need to clarify in Clauses 3(f)/5 aforesaid, that only 50% 'Good' ACRs are required.
14. Thus, seen as above, the instructions governing promotions, dated 06.09.2001 (Annexure R-2), obviously do not hold good for anything other than for benchmarks/parameters to be adopted for promotions.
15. Therefore, looking to the petitioners' record in the light what has been observed hereinabove, undoubtedly, other than that one remark and one grading of 'Average' for the year 1998-99, the entire service record of the petitioner from 1993 onwards is either 'Outstanding' (for 8 years), 'Very Good' (for 5 years) and 'Good' ( for 2 years). For the years 1996-1997 and 1997-1998, no ACR was recorded, as per Annexure P-15, which is not denied by the respondents.
Further, it is to be noticed that even the remarks contained in the ACR in question, do not assess the petitioner to be below average. A perusal of the remarks, already reproduced hereinabove, shows that is stated therein that he did not execute the orders and was therefore "an Average Officer", with "Nothing Outstanding". Eventually, as already noticed many a times, the said ACR was graded as 'Average' and not 'Below Average'. Hence, I do not see how the stand of the respondent is sustainable in any manner.
16. Consequently, this petition is allowed. The impugned order, Annexure P-14, is quashed to the extent that it places the petitioner in a AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh CWP No. 12870 of 2013 -:12:- higher pay scale at the 9th year point of his service in the PCS cadre only w.e.f. 01.01.2005, as opposed to 01.01.2002, and in the 3 rd 'ACP' scale, at the 14th year point, only w.e.f. 01.01.2010, in stead of 01.01.2007.
The respondents are directed to reconsider the case of the petitioner for placing him in the higher ACP scales at the 9 th and 14th year points of his service in the light of what has been discussed hereinabove, by simply accepting the remarks for the year 1998-99, to be "Average", which would not be held against him in terms of Clause 5 of the instructions dated 17.04.2000 and Clause 3 (f) of the instructions dated 03.11.2006.
17. After considering the petitioners' case as above, an appropriate order would be passed with regard to grant of 'ACP' scales to the petitioner, from the dates that they became due to him, with consequential benefits of arrears of pay and pension etcetra. He would also be entitled to interest @ 7% per annum on such arrears.
The needful be done with 2 months from the date of receipt of a certified copy of this order.
Though even the letter dated 01.04.2012 (Annexure P-17) has been impugned in the petition, factually it is inconsequential, as all that has been conveyed to the petitioner vide the said letter, is that his representation has been filed away. Such filing away of the petitioners' representation is definitely not tenable; however, it is inconsequential in view of what has been held hereinabove.
No order as to costs.
(AMOL RATTAN SINGH) 21.11.2014 JUDGE dinesh/amit rana AMIT RANA 2015.04.27 12:26 I attest to the accuracy and authenticity of this document Chandigarh