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2005 DIGILAW 469 (HP)

R. K. MITTAL v. STATE OF H. P.

2005-12-13

K.C.SOOD

body2005
JUDGMENT K.C. Sood, J. - The petitioner by this petition under Articles 226 and 227 of the Constitution of India prays for the following reliefs: (a) Summon the records of the case; (b) Quash the order dated 21/23.10.202 (Annexure-P7) whereby a minor penalty of stoppage of one increment without cumulative effect has been inflicted as also the order dated 6.3.2003 (Annexure P-9) whereby the appeal dated 27.11.2002 has been rejected without assigning any reason; (c) Quash the memo dated 17.6.2003 (Annexure P10) whereby the petitioner has been graded as an Average Officer on account of the imposition of penalty of with holding of one increment without cumulative effect, as also the order dated 1.9.2003 (Annexure P-12) whereby the representation of the petitioner against the memo dated 17.6.2003 has been rejected without assigning any reason; (d) Expunge the remarks average office in the annual confidential report of the year 1998-1999 which was based on false complaint in which the petitioner has been acquitted of all the main charges as per inquiry report copy of which was supplied to the petitioner vide letter dated 12.8.2002; (e) Quash the notification dated 18.8.2003 (Annexure P-20) whereby the respondents No. 3 to 5 have been promoted and appointed in the H.P. Higher Judicial Service by ignoring and superseding the eligible claims of the petitioner; (f) Quash the ACR for the years 1998-99 and 2002-2003 for want of compliance of principles of natural justice; (g) Petitioner be awarded grace marks (if not already awarded) so as to maintain his inter se seniority of the lower cadre viz-a-viz respondents No. 3 to 5; (h) Direct the respondents No. 1 and 2 to consider and promote the petitioner to the H.P. Higher Judicial Service without taking into consideration the memo dated 22.6.1999 and penalty order dated 21/23.10.2002 and memo dated 17.6.2003 with all consequential benefits flowing from such as seniority with effect from 18.8.2003 and all other benefits; (i) Any other relief which this Honble Court deems fit in the facts and circumstances of the case. 2. The petitioner, R.K. Mittal, was inducted in the Himachal Pradesh Judicial Service on October 26, 1982 (Judicial Service for short). Based on seniority, he was appointed and posted as Senior Su b Judge in the year 1995. A post in the cadres of Higher Judicial Service became available in January, 2003. 2. The petitioner, R.K. Mittal, was inducted in the Himachal Pradesh Judicial Service on October 26, 1982 (Judicial Service for short). Based on seniority, he was appointed and posted as Senior Su b Judge in the year 1995. A post in the cadres of Higher Judicial Service became available in January, 2003. This vacancy was to be filled from amongst the members of judicial Service by promotion in accordance with the "Principles and Procedure to. be followed in making selection for promotion to the Himachal Pradesh Higher Judicial Service" (Annexure P-21) framed and adopted by the respondent No. 2, the High Court of Himachal Pradesh "High Court" for short). The petitioner being senior most eligible member of the Judicial Service was in the zone of consideration. The process for promotion of the Officers of Judicial Service was accordingly initiated. The matter was placed before the Full Court of the High Court on August 1, 2003. The petitioner was not found Tit and suitable, at this stage, for promotion." 3. The case of the petitioner is that he was ignored because he had suffered an average entry in his Annual Confidential Report for the year 1998-99 and also minor penalty of stoppage of one increment without cumulative effect, imposed on him after departmental inquiry where he was found having availed two journey days more than what was justified and having performed return journey via Chandigarh, not a shortest route, in June, 1998. This penalty was imposed and conveyed to him only in September, 2002. 4. The petitioner submitted his appeal/review/representation against the penalty which was rejected. The rejection was conveyed to the petitioner in March, 2003. He, in view of the penalty imposed was again assessed as average in the Annual Confidential Report for the year 2002-2003. His representation against this assessment was rejected. Officers junior to him, respondents No. 3 to 5, were promoted by the respondent No. 2 by a notification dated August 18, 2003 (Annexure P-20). 5. It is the case of the petitioner that his representation/ appeal/review was rejected without assigning any reason by a non-speaking order on September 1, 2003. It is his further case that he had not violated any rule, regulation or instruction regarding the performance of journey, on official duties, from Reckong Peo, his places of posting, to Nurpur where he was required to give evidence. It is his further case that he had not violated any rule, regulation or instruction regarding the performance of journey, on official duties, from Reckong Peo, his places of posting, to Nurpur where he was required to give evidence. It is the plea of the petitioner that he charge, noticed above, .against him was without any foundation and the penalty, in the circumstances, imposed on him was unjustified and illegal. It is his further case that the other reason for grading him as "average Officer" was the pendency of some complaint. Mere pendency of complaints, submits petitioner, cannot be a reason for grading an officer as "average1. This action of the High Court is unsustainable in the eyes of law. He also submits that the petitioner was charge-sheeted for several misdemeanors but was exonerated of all the charges except the one, noticed above, by the Inquiry Officer. It is the contention of the petitioner that the remarks recorded in the Annual Confidential Report of 1998-99 were due to pendency of a claimant which subsequently formed basis of charge-sheet, are bad in law and liable to be quashed. It is his case that remarks in the A.C.R. for the year 1998-99 ought to have been up-graded. 6. So far the grading of the petitioner as an average officer in the Annual Confidential Report of 2002-03 is concerned, it was only because: (a) Minor penalty of withholding of one increment was imposed on him which related to the year 1998; and (b) Pendency of some complaint. 7. It is his case that he cannot have been down graded to average because pendency of complaints cannot be a ground to down-grade him as average officer". The action is unsustainable and liable to be struck down. 8. It is the case of the petitioner that his grading as average officer in the Annual Confidential Report for the year 2002-03 could not have been considered as disability for his promotion to the Higher Judicial Service in view of the Principles and Procedure prescribed for such promotion. The petitioner, it is alleged, who has twenty-one years of service is made to suffer for the reasons beyond the control of the petitioner. The petitioner, it is alleged, who has twenty-one years of service is made to suffer for the reasons beyond the control of the petitioner. According to the petitioner, in the absence of any rules for the journey period and in the light of the earlier precedents, the journey period which was taken by the petitioner could not be said to be unjustified and for this reason too, the order of minor penalty withholding of the increment for one year and his grading on that account as average officer are liable to be set aside. He also says that the High Court had sanctioned earned leave for June 7, 1998 (Sunday) and. June, 11, 1998 and therefore, if at all there was any lapse, for having availed these two days, as journey days, that stood condoned. According to the petitioner, so far the question of he having not sought the permission to perform return journey via Chandigarh is concerned, no such permission is required under the rules. Such journey via Chandigarh was necessitated because of the circumstances beyond the control of the petitioner as his mother was (raveling with him who was aged and sick and was unable to stand the rigors of hill journey. He did not claim any TA or DA for the journey. 9. The State in its return says that its action in having promoted officers junior to the petitioner, on the recommendations of the High Court, is neither contrary to the principles of natural justice nor to the constitutional provisions. So far other allegations are concerned, it is the case of the State that these pertain to the High Court and "need not to be commented upon by the respondent No. 1. 10. The High Court in its return says that adverse remarks recorded regarding the work and conduct of the petitioner were duly conveyed to him from time to time. It is admitted that penalty of stoppage of one increment, without cumulative effect, for a period of one year from April 1, 2003 to March 31, 2004 was imposed on the petitioner under rule 11 (iv) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (Rules for short) by an order dated October 21/23, 2005. It is admitted that penalty of stoppage of one increment, without cumulative effect, for a period of one year from April 1, 2003 to March 31, 2004 was imposed on the petitioner under rule 11 (iv) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (Rules for short) by an order dated October 21/23, 2005. It is the case of the High Court that perusal of the Annual Confidential Report of the petitioner for the year 1998-99 would how that it was recorded on the basis of over all performance of the petitioner relating to that period and not based on any complaint which was pending at that time. It is submitted that the petitioner did not file any representation against the remarks recorded in the Annual Confidential Report for the year 1998-99. So far the imposition of penalty is concerned, it is stated that the petitioner submitted representation dated September 5, 2002 against the findings under Charge No. 3, for which minor penalty in question was imposed. This representation which was duly considered and rejected. So far the appeal/review made by the petitioner were concerned, they were also considered by the High Court and it was only after such consideration that the appeal was rejected and decision was conveyed to the petitioner by a letter dated March 6, 2003 (Annexure P-9). It is the case of the respondent No 2 that sanctioning of earned leave does not amount to condoning the lapse on the part of the petitioner as sanction of leave, ex-post-facto and misconduct are two separate and distinct things. In any event, it is submitted the leave was sanctioned after the imposition of penalty. 11. It is submitted that the petitioner was graded as average officer in the Annual Confidential Report for the year 2002-03 but such gradation was not based merely because the petitioner was visited with penalty of with holding of one increment. The entry was recorded keeping in view the over all performance/conduct of the petitioner during the relevant period. So far the question of imposition of penalty is concerned, the stand of the High Court is that the same was recorded in the Annual Confidential Report for the year 2002-03 as there is a column in the Annual Confidential Report for such entry. It is submitted by the High Court that various complaints were received against the petitioner. So far the question of imposition of penalty is concerned, the stand of the High Court is that the same was recorded in the Annual Confidential Report for the year 2002-03 as there is a column in the Annual Confidential Report for such entry. It is submitted by the High Court that various complaints were received against the petitioner. The comments of the petitioner were called. These complainsts are still under consideration of the replying respondent. It is submitted that he petitioner was conveyed decision regarding rejection of his representation against the Annual Confidential Report for the year 2002-03. However, reasons for such rejection were not required to be reproduced in the communication though such reasons exist in the record which will be made available before the Court. It is the case of the High Court that the petitioner was considered for promotion along with respondents No. 3 to 5 but was not found suitable and fit for such promotion. 12. So far the question of petitioner having been imposed minor penalty is concerned, it is the case of the High Court that appeal/representation of the petitioner dated November 27, 2002 was considered but did not find favour of the High Court and the appeal was rejected. 13. It is the case of the "High Court" that the petitioner who was then posted as Senior Sub Judge-cum-Chief Judicial Magistrate at Reckong Peo, was summoned by the Sub Divisional Judicial Magistrate, Nurpur as a witness for June 8, 1998. The petitioner was granted permission by the District and Sessions Judge, Kinnaur at Rampur to leave the station on the morning of June 6, 1998 for Nurpur and thereafter to proceed to Dalhousie to meet his family members. He was also sanctioned casual leave for June 9 and 10, 1998. The petitioner left Reckong Peo in the morning of June 6, 1998 at 4.00 a.m. He reached Dalhousie, a place beyond Nurpur on the same night at 10.00 p.m. Dalhousie is situated beyond Nurpur and therefore, there was no justification for the petitioner to have availed June 7, 1998 as journey day. Nonetheless he availed June 7, 1998 as journey day and enjoyed the day by as "furlough" "at the cost of judicial work which constitute as an act of grave misconduct". On return journey, says "High Court" the petitioner without any permission travelled via Chandigarh from Dalhousie on June 11, 1998. Nonetheless he availed June 7, 1998 as journey day and enjoyed the day by as "furlough" "at the cost of judicial work which constitute as an act of grave misconduct". On return journey, says "High Court" the petitioner without any permission travelled via Chandigarh from Dalhousie on June 11, 1998. The route adopted was not shortest and thereby the petitioner violated the leave rules by claiming journey day on June 7 and June 11, 1998. 14. It is admitted that the promotion of the Judicial Officers to the Himachal Pradesh Higher Judicial Service is made in accordance with the Principles and Procedure. It is also admitted that the Scheme provides for award of grace marks to maintain inter-se seniority for such promotion. However, it is contended that grace marks are awarded only in cases where the person is otherwise found fit and suitable for promotion. The petitioner, on overall assessment of his records, was not found "fit and suitable" for promotion to the Himachal Pradesh Higher Judicial Service and therefore, there is no question of , he having been granted grace marks to him to maintain inter se seniority. 15. Respondents No. 3 to 5 did not file any reply despite notice. 16. Heard Mr. A.K. Sinha and Mr. Anand Sharma, Advocates, for the petitioner, Mr. Ashok Chaudhary learned Additional Advocate General for the State respondent No. 1 and Ms. Jyotsna Rewal Due Advocate for the High Court respondent No. 2. 17. The record shows that the petitioner was served with a charge-sheet by a memorandum dated June 3, 1999 containing five Articles of charges. These charges were enquired into by Inquiry Officer (Registrar Vigilance) who submitted his inquiry report on October 6, 2001. In his report, he found all the articles of charges "not proved" exonerating the petitioner except charge No. 3 which was held to be proved. 18. Charge No. III against the petitioner was that the petitioner was to appear as witness in the Court of Additional Chief Judicial Magistrate at Nurpur on June 8, 1998. He was permitted to leave his place of posting on the morning of June 6, 1998. The petitioner left Reckong Peo at 4.00 a.m. on June 6, 1998 and reached Dalhousie at 10.00 p.m. on the same day completing the journey of more than 50 kms and therefore, there was no justification for availing June 7, 1998 as. He was permitted to leave his place of posting on the morning of June 6, 1998. The petitioner left Reckong Peo at 4.00 a.m. on June 6, 1998 and reached Dalhousie at 10.00 p.m. on the same day completing the journey of more than 50 kms and therefore, there was no justification for availing June 7, 1998 as. journey day from Dalhousie to Jasor. On return journey, he performed his journey via Chandigarh on June 11, 1998 without any official permission. By his conduct, he flouted leave rules by claiming journey day of June 7 and 11, 1998 thereby committed acts of misconduct unbecoming of a public servant as contemplated under rule 3(i)(ii) of the CCC (Conduct) Rules, 1964. Article-Ill of the charge reads :- "That while posted and functioning as Senior Sub Judge-cum-Chief Judicial Magistrate, Distt. Kinnaur at Reckong Peo during June, 1998, you had taken two days causal leave for 9th and 10th June, 1998 for availing after your appearance as a witness in the court of Addl. CJM Nurpur on 8.6.1998. You left Reckong Peo at 4.00 a.m. on 6.6.1998 and reached Dalhousie at 10.00 p.m. on the same day, i.e. completing the journey of more than 500 kms from Reckong Peo to Dalhousie on the same day. Thus, there was no justification for availing 7.6.1998 as journey day from Dalhousie to Jasur. On return journey, you visited Chandigarh on 11.6.1998 without any official permission to visit Chandigarh. The journey was not performed by the shortest route. Without taking permission, you were not entitled to avail yourself on 11.6.1998 as journey day to Chandigarh. You have thus, prima facie, flouted the leave rules by claiming journey days on 7.6.1998 and 11.6.1998 without official permission and have misused your powers as Head of Office and Drawing & Disbursing Officer. You, therefore, committed of misconduct unbecoming of a public servant. Thus, you have failed to maintain absolute integrity and devotion to duty required of you under Rule 3(i) and (ii) of the CCS (Conduct) Rules, 1964. 19. The Inquiry Officer, in his report, held that this Article of charge was proved against the petitioner who was entitled to claim only actual journey(s) day for journey: performed by shortest route and not by longer route for the sake of his comfort without seeking permission of the Controlling Officer. 19. The Inquiry Officer, in his report, held that this Article of charge was proved against the petitioner who was entitled to claim only actual journey(s) day for journey: performed by shortest route and not by longer route for the sake of his comfort without seeking permission of the Controlling Officer. The findings recorded by the Inquiry Officer were accepted by the Full Court of the High Court by a resolution dated August 2, 2002. The Full Court by a resolution dated September 26, 2002 imposed minor penalty of withholding of one increment without cumulative effect for a period of one year as proposed by the Committee of the Honble Judges. The period of absence of two days, i.e. June 7, and June 11,1998 was also treated as earned leave. 20. The question which calls for answer is whether the petitioner violated the Leave Rules for which he was charged or for the matter any other rules or instruction or regulation for having availed June 7 and 11,1998 as journey days. 21. The fact of the matter is that the petitioner was summoned to appear as a witness in the Court of Additional Chief Judicial Magistrate Nurpur for June 8, 1998 in a case State v. Sada Singh and others. The petitioner sought permission of the District Judge, his Controlling Officer, for attending the court hearing on June 8, 1998. He also requested for grant of casual leave for June 9 and 10, 1998 to enable him to meet his family at Dalhousie. He also sought permission to leave the station of his posting on the morning of June 6, 1998 as the distance from Kinnaur to Nurpur was more than 500 kms. This permission was granted by the learned District and Sessions Judge Kinnaur (Annexure P-16) subject to verification of the period as may be spent in performing journey to Headquarter from the place of leave. 22. It is not in dispute before me that the petitioner left the place of his posting at 4.00 a.m. in the morning in a Taxi and reached Dalhouise the same night at 10.00 p.m. On his return journey, he left Dalhouise on the morning of June 11, 1998 in a Bus, reached Chandigarh on the same evening, left Chandigarh, by bus, next morning and reached his place of posting in the evening. The tour diary of the petitioner (Annexure P-17) shows and it is admitted position that he left Reckong Peo, his place of posting at 4.00 a.m. arrived Dalhouise at 10.00 p.m. Left Dalhouise in the afternoon of next day, arrived Jassur, a place 3 km. away of Nurpur at 6.30 p.m, stayed for the night at Jassur and attended the Court next day. Left Nurpur for Dalhousie at 6.30 p.m. on the same day, availed casual leave on June 9 and 10,1998, left Dalhousie via Nurpur and arrived Chandigarh at 8.00 p.m., spent night at Chandigarh, left Chandigarh in the morning of June 12,1998 and reached Reckong Peo at 8.30 p.m. by Bus. 23. Even though the Articles of Charge in question says that the petitioner violated the Leave Rules but Ms. Jyotsna Rewal Due, learned Counsel for respondent No. 2 could not point out anything from the Leave Rules or any other rules which provide for permission journey days to an Officer on tour. Learned Counsel was also unable to explain how and in what manner the Leave Rules were violated or flouted in terms of the Article of Charge No. Ill for which the petitioner was found guilty and punished. The inescapable conclusion is that the finding of the Inquiry Officer that Charge No. Ill against the petitioner was proved is without any foundation in the Rules or instructions. 24. Before me it is not disputed that the petitioner in normal course was entitled for two journey days in view of the distance from Reckong Peo to Nurpur, i.e. the place of his posting to the place of his duty, for both sides of the journey. Admittedly, the petitioner left in the early hours of the morning of June 6, 1998 which happened to be Saturday. He was supposed to stay at Draman on that night. However, as his mother had suddenly fallen ill, who was at Dalhousie at the relevant time, he did not break the journey at Draman and drove to Dalhousie via Sihunta without going to Nurpur as there is a bifurcation to Dalhousie from Sihunta. What, at the most can be said is that the petitioner may have performed his journey by a slight longer route but the petitioner did not claim any TA or DA for the journey undertaken by him. What, at the most can be said is that the petitioner may have performed his journey by a slight longer route but the petitioner did not claim any TA or DA for the journey undertaken by him. In these circumstances, there is no question of either he having misused his power as Head of the Office of Drawing and Disbursing Officer. Admittedly, there is no violation of the Leave Rules or any other Rules. 25. There is no provision or instruction for journey days even in the T.A. Rules, i.e. F.R.S.R. Part-II, (T.A. Rules). Section IX of these rules pertains to journey on tour. Rule S.R. 61 says that a Government servant is on tour when absent on duty from his headquarters either within or, with proper sanction, beyond his sphere of duty. S.R. 61 reads: "61. A Government servant is on tour when absent on duty from his headquarters either within or, with proper sanction, beyond his sphere of duty. For the purposes of this section, a journey to a hill station is not treated as a journey on tour." 26. Thus the petitioner was on duty beyond his jurisdiction with prior sanction of his Controlling Officer, S.R. 63 says that the competent authority may impose such restrictions as it may think fit upon the frequency and duration of journeys to be made on tour by any Government servant or class of Government servants. Admittedly, in this case, no restriction was imposed by the Controlling Officer on the duration of the journeys to be made by the petitioner. The Controlling Officer in fact while conveying the sanction of the leave and permission to attend the Court for giving evidence (Annexure P-16) accorded permission to leave the station on the morning of June 6, 1998 subject to the verification about the period as may be spent in performing journey to headquarter from the place of leave. There is no dispute so far performing of journey from the headquarter to the place of leave i.e. Dalhousie is concerned. It is accepted position that an Officer on tour, in Himachal Pradesh is permitted one journey day from 200 kms. The Inquiry Officer noticed that the evidence of Bhau Ram Superintendent of the Office of District and Sessions Judge Kinnaur at Rampur (PW-6) to the effect that two days are allowed to perform the journey for more than 200 kms. It is accepted position that an Officer on tour, in Himachal Pradesh is permitted one journey day from 200 kms. The Inquiry Officer noticed that the evidence of Bhau Ram Superintendent of the Office of District and Sessions Judge Kinnaur at Rampur (PW-6) to the effect that two days are allowed to perform the journey for more than 200 kms. Thus, the petitioner was indeed entitled to two days of journey from Reckong Peo, the place of his posting, to Nurpur where he was to appear as witness which is admittedly more than 500 kms. No statutory rule or instruction is pointed out which may have been violated or infringed by the petitioner by having taken two journey days to perform this distance. 27. It is true that the petitioner, as explained by him, because of the sudden illness of his mother instead of staying for the right at Draman went to Dalhousie. He over stretched himself to his discomfort and reached Dalhousie at 10.00 in the night undertaking continuous journey for 18 hours. This position is not in dispute nor there is any finding of the Inquiry Officer to the contrary. There was no question of the petitioner having for leave or taken sanction of leave for June 7, 1998 which was Sunday., The inescapable conclusion is petitioner did not violate or infringe any provision of the Leave Rules or for that matter any instruction or any other Rule. 28. So far the return journey is concerned, it is admitted position that the petitioner left Dalhousie, where he was on leave, on the morning of June 11, 1998 by a Bus, reached Chandigarh late in the evening, spent night at Chandigarh, started his onward journey along with his mother in a bus from Chandigarh to Reckong Peo and reached his headquarters on the same evening. It is true e that the petitioner did perform his inward journey in eighteen hours from Reckong Peo to Dalhousie by tiring and over stretching himself due to the illness of his mother only because he was traveling by Taxi. But return journey could not have been performed in a single day on the same day by Bus either via Chandigarh or via Hamirpur. 29. It is so clear from the evidence of Gian Singh, Regional Manager, HRTC Kinnaur (DW5). But return journey could not have been performed in a single day on the same day by Bus either via Chandigarh or via Hamirpur. 29. It is so clear from the evidence of Gian Singh, Regional Manager, HRTC Kinnaur (DW5). It is his evidence that he is Regional Manager of the H.R.T.C at Reckong Peo and it takes about eleven to twelve hours to reach Reckong Peo from Shimla by Bus. Similarly, it takes about the same time, i.e. eleven to twelve hours to reach from Shimla to Nurpur via Hamipur. It is also his evidence that it takes the same time to perform journey from Dalhousie to Chandigarh via. Talwara-Una as from Dalhousie to Shimla via Nurpur Hamirpur, i.e., 11 to 12 hours. 30. The petitioner, even if he had travelled by so-called shortest route, i.e. Nurpur Shimla via Hamirpur Bilaspur, he would have taken the same time, i.e. eleven to twelve hours to reach Shimla from Nurpur and admittedly, another days journey from Shimla to Reckong Peo. In this view of the evidence on record, by no stretch, it could be said that the petitioner could have performed his journey from Dalhousie to Reckong Peo in one day. 31. There is no infraction of any rule even if journey on duty is performed by longer route provided no traveling allowance is claimed more so when time taken for such journey is same as by shortest route. 32. F.R.S.R. Part-II, in terms of S.R. 30 says that the purpose of calculating mileage allowance, a journey between the two places is held to have been performed by the shortest of two or more practicable routes or by the cheapen of such routes as may be equally short; provided that, when there are alternative railway routes and the difference between them in point of time and cost is not great, mileage allowance should be calculated on the route actually used. S.R. 30(b) provides that the shortest route is that by which the traveler can most speedily reach his destination by the ordinary modes of traveling S.R. 30(b)reads: "30(b). The shortest route is that by which the traveler can most speedily reach his destination by the ordinary modes of traveling. In case of doubt a competent authority may decide which shall be regarded as the shortest of two or more routes." 33. The shortest route is that by which the traveler can most speedily reach his destination by the ordinary modes of traveling. In case of doubt a competent authority may decide which shall be regarded as the shortest of two or more routes." 33. The petitioner traveling by bus cold not have reached Reckong Peo from Nurpur mere speedily. As noticed in the evidence of Regional Manager, Himachal Road Transport Corporation, journey either performed via Chandigarh on via Hamirpur would take the same time to reach Shimla and there is no other route from Shimla to Kinnaur except by which the journey was performed by the petitioner in the Bus. No pecuniary loss has been caused to the State exchequer. This part of the charge is without any foundation and misplaced as the petitioner admittedly has not claimed any TA and DA for the performance of his journey either for going to Nurpur/Dalhgousie or for his return journey from Dalhousie/Nurpur to Reckong Peo. 34. In this view of the matter, no misconduct is attributable to the petitioner under this charge. 35. Misconduct means misconduct arising from ill-motive. Acts of negligence, errors of judgment or innocent mistake perse does not constitute such misconduct. In the facts and circumstances of the present case, no ill-motive is attributable to the petitioner so as to bring his act of performing journey from Reckong Peo to Nurpur and Dalhousie and back to Reckong Peo within the mischief of "misconduct". 36. The petitioner under Article III of the charges is charged from having failed to maintain absolute integrity and devotion to duty in terms of Rule 3(i) and (ii) of the CCS (Conduct) Rules, 1964. The notification of the Government of India in the Department of Personnel (O.M. No. 11013/18/76-Estt.(A) February 7, 1997 clearly lays down, in para 2.2 that Rule 3(i) of the CCS (Conduct) Rules, 1964, though provides that a Government servant shall at all times maintain absolute integrity and devotion to duty and do nothing unbecoming of a Government servant but it is clarified that his rule serves a specific purpose of covering acts of misconduct not otherwise covered by specific provisions of the rules. It is, therefore, necessary, emphasizes the notification, that Disciplinary Authority should first satisfy itself that alleged acts of misconduct do not attract the provision of any specific rule before taking recourse to Rule 3(i) particularly on grounds of unbecoming conduct, special care must be taken by the Disciplinary Authority to eliminate cases of trivial nature. 37. In the present case, looking to the facts and circumstances on record and the evidence led before the Inquiry Officer particularly that of the Regional Manager, Himachal Road Transport Corporation, it is not possible to say that travel by petitioner, after due sanction on June 6, 1998 from Reckong Peo to Dalhousie, a journey of more than 500 kms. by over-stretching himself in a single day instead of two days allowed to him, amount lacking either integrity or devotion to duty. 38. Blacks Law Dictionary (Sixth Edition) defines misconduct to mean "a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanor , misdeed, misbehaviour, delinquency , impropriety mismanagement, offense, but not negligence or carelessness." Thus the charge No. Ill as laid against the petitioner cannot be said to be misconduct so as to warrant either Disciplinary proceeding or penalty. 39. As held by a Division Bench of the Calcutta High Court in Deputy Inspector General, CISF v. Shib Kumar Ray, 1995(2) SCT 654, every omission or commission does not amount to misconduct. Misconduct, as defined in Strouds Judicial Dictionary, would mean misconduct arising from ill motive, acts or negligence, errors of judgment or innocent mistake do not constitute such misconduct. 40. In the absence of any rules or clear instructions for the permissible journey day on tour, the petitioner who admittedly could not have performed the journey within one single day of more than 500 kms. having performed the same while going to give his evidence in the Court at Nurpur by traveling more than 18 hours without break, which he was supposed to take at Draman, (due to sudden illness of his mother) to be with his ailing mother and having not asked for leave for the next day which happened to be his journey day, more so that day being Sunday, cannot be said to have committed any misconduct. Similarly, his return journey which was performed by the petitioner via Chandigarh admittedly could not have been performed in a single day even via Hamirpur would not amount to misconduct. 41. The petitioner is charged for having not maintained absolute integrity and devotion to duty as provided under Rule 3(1 )(i) and (ii) of the CCS (Conduct) Rules. The relevant Rules 3(1), (i) and (ii) reads :- "3(1) Every Government servant shall at all times :-(i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) xxx xxx xxx 42. The performance of journey by the petitioner both for out outward and inward journey cannot be said to be a mischief within the meaning of Rule 3(1 )(i) and (ii) notice above either lacking in integrity,, or devotion to duty as the petitioner was not bound by any rule order, : instruction of sanction of his Controlling Officer to adopt a particular route. His sanction was only subject to he having performed the journey as requested by him which he did. 43. I am fortified for the view I. have taken by the ratio in three Judges Bench of the Apex Court in A.L. Kalra v. The Project and Equipment Corporation of India Ltd., AIR 1984 Supreme Court 1361. In that case, a similar rule 4(1)(i) and (ii) came for interpretation. The relevant rule in that case reads :- "4(1) Every employee shall at all times. (i) maintain absolute integrity; (ii) xxxxxxxx (iii) do nothing which is unbecoming of a public servant." Their Lordships observed:- " Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct." It was further held that: "It is not necessary to dilate on this court delate on this Court in Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut, 1984(1) SC 1: AIR 1984 SC 505, where this Court held that everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling with in the enumerated misconduct for the purpose of imposing a penalty. Rule- 4 styled as General specifies a norm of behaviour but does not specify that its violation will constitute misconduct." 44. The charge, as earlier observed was misconceived, mislaid and without any foundation. The findings returned by the Inquiry Officer are not only dehors the evidence recorded by him but also unmindful of the rules and regulations. The penalty imposed by the Disciplinary Authority in the circumstances is un-sustainable and is liable to be quashed. This situation is further compounded by the Disciplinary Authority while accepting the report of the Inquiry Officer The Disciplinary Authority has not assigned any reasons for accepting the report of the Inquiry Officer and for rejecting the representation of the petitioner. Even when in its return it is maintained that such reasons are recorded on the files, no such reasons are found in the records produced by the High Court before me. The acceptance of findings by the Disciplinary Authority and consequent imposition of the penalty in question in this view of the matter is unsustainable being arbitrary and therefore violative of Article 14 of the Constitution. 45. The next question is about the grading of the petitioner as (sic) Annual Confidential Report for the year 1998-99. The acceptance of findings by the Disciplinary Authority and consequent imposition of the penalty in question in this view of the matter is unsustainable being arbitrary and therefore violative of Article 14 of the Constitution. 45. The next question is about the grading of the petitioner as (sic) Annual Confidential Report for the year 1998-99. A perusal of this A.C.R. shows that against various heads, the remarks are recorded by the District and Sessions Judge and under the third column, the remarks are to be recorded by the High Court. However, the High Court had not recorded any remarks against various heads. The remarks as recorded by the Controlling Officer have been approved. Against the head. "Has he maintained a reputation for honesty and impartiality during the period under report" ? the District Judge has recorded : "Complaint pending on the administrative side". Honble Chief Justice has also appended a note saying that special remarks at A, B, "C and F about disposal/reconciliation may be conveyed to him for purpose of guidance. 46. It is well settled and I hardly need to say that merely because complaints are pending against an Officer who is under consideration for promotion, will not make him unfit and unsuitable for promotion. No notice can be taken of such complaints unless the complaints result into Departmental proceedings and if such proceedings are pending, then sealed cover procedure has to be adopted. In fact, remarks regarding pendency of complaints cannot be reflected in the A.C.R. while assessing an officer. There is no head/column regarding pending complaints in the A.C.R. against which such remarks could be recorded. Pendency of complaints would not mean that Officer is lacking integrity. It is interesting to note that there is a certificate (Form-B) which is required to be recorded when the ACRs are placed before the Honble the Chief Justice/Honble Administrative Judge for recording remarks in the ACR and for acceptance. The certificate(s) as given by the Registrar General and the Registrar (Vigilance) in this case say: Certified that nothing has been finally decided/observed about the officer on the administrative side during the reporting year which may be treated as adverse Certified that nothing has been finally decided/observed about the officer on the Vigilance side during the reporting year which may be treated as adverse. Sd/- Registrar Sd/- Registrar (Vigilance) 47. Sd/- Registrar Sd/- Registrar (Vigilance) 47. It is admitted position that no Departmental inquiry was pending against the petitioner when he was to be considered for promotion. So far special remarks as noticed by the Honble Chief Justice are concerned, it so happened when statement regarding disposal of cases on regular and old side and disposal of cases through conciliation was placed along with the A.C.R. before the Honble the Chief Justice. The disposal statement recorded the performance of the petitioner as Good so far disposal on the regular side is concerned. The performance was recorded as wholly deficient in respect of old cases. He was graded as F in conciliation of the cases and the over all assessment of disposal qua regular, old cases and conciliation was assessed as average. In so far special remark A is concerned, it says that the Judicial Officer need to improve his performance and should show better results during the next quarter. Special remark B says that Judicial Officer should put in better efforts to improve performance. Special remark C says that the performance in regard to disposal of old cases leaves much to be desired and the Officer must show improved results to deserve better appraisal of disposal of old cases. Special remark "F says that a repeat performance of this nature shows that the remarks conveyed on the previous quarterly assessment have failed to make the desired impact which is not creditable for the Judicial Officer. 48. The record shows that in the statement regarding disposal of old cases and on regular side, which was placed before the Honble the Chief Justice had reflected disposal as adequate for the quarter ending June, 1998, poor for the quarter ending September, 1998, poor for the quarter December, 1998 and poor for the quarter ending March, 1999. But this assessment for the quarter ending September, December, and March was revised by the High Court. As is apparent from Annexure P-22, the assessment on the regular side as revised by the High Court is as follows:- June 1998 Adequate September, 1998 Very Good December, 1998 Outstanding March, 1999 Poor 49. Now this revised assessment was not placed before the Hon’ble the chief justice directed that attention of the officer should be drawn to the special remarks. Now this revised assessment was not placed before the Hon’ble the chief justice directed that attention of the officer should be drawn to the special remarks. The possibility that had the revised remarks of very good and outstanding been brought to the notice of the Hon’ble reviewing judge/Hon’ble the chief justice the petitioner might not have been as an ‘average Officer’ cannot entirely be ruled out. 50. Be that as it may. The petitioner even on the basis of average A.C.R. excluding the remarks regarding pendency of complaints was entitled to be considered for promotion under the principles and procedure. He could not have been found “unfit or unsuitable” when he fell within the zone of consideration in the year 2003 particularly so when the minor penalty of withholding of one increment for that year though imposed in the year 2002 pertaining to the year 19998-99 is liable to be excluded in view of my observation made hereinabove. 51. It is pertinent to observe here that penalty always relates back to the period when the alleged misconduct was committed or in any case when period when such misconduct was detected. In the present case, withholding of one increment as penalty would relate back to the year 1998-9 and even on the face of this penalty, the petitioner could not be said to be unsuitable or unfit for promotion in the year 2003 as the penalty was for a limited period of one year. Thus, the penalty which is imposed upon the petitioner could not be in the way of his promotion in accordance with the Principles and Procedure. 52. The next are the remarks recorded in the A.C.R. for the year 2002-03. In this A.C.R. there is no adverse remarks against various columns of the Annual Confidential Report. The knowledge of law and procedure is assessed as Good. Similarly in respect of his quality of judgment, he is assessed as Good. He is found to be industrious and prompt in the disposal of the cases. However, against the column, "Has he maintained a reputation for honesty and impartiality during the period under report", the District Judge has recorded: "nothing adverse came to notice". However, the High Court recorded: "Complaints received by the H.C. and are pending". I have already observed, such remarks could not have been recorded against column No. 9. However, against the column, "Has he maintained a reputation for honesty and impartiality during the period under report", the District Judge has recorded: "nothing adverse came to notice". However, the High Court recorded: "Complaints received by the H.C. and are pending". I have already observed, such remarks could not have been recorded against column No. 9. In any event, pendency of claimants against an Officer is of no consequence. Again against column No. 10, "Is he fit for the exercise of any enhanced powers", it is recorded: "on his own turn". The overall performance of the Officer is assessed as Good by the District Judge. However, the High Court has recorded "Average in view of remarks No. 7 and 9 above". Against column No. 7, "whether the officer was warned/visited with penalty during the period under review? If so, give brief particulars", it is recorded by the High Court "Visited with penalty of withholding of one increment vide officer order dated 21/23.10.2002." I have already observed that the penalty relates back to the year to which it pertain and therefore, could not have been recorded in the A.C.R. for the year 2002-03 as it related to the year 1998-99. In any case, as held by me in earlier part of the judgment, the penalty in question based on the findings in Departmental Inquiry being without any foundation, is liable to be quashed and is nonest. The record shows that against column No. 13, i.e., Net result, the District Judge has recorded Good whereas, the High Court down graded to it as Average only because of the remarks against Column No. 7 and 9, i.e.: (a) The petitioner was visited with penalty of withholding of one increment vide office order dated 21/23.10.2002. (b) Complaints received by HC and are pending. Relevant columns No. 7, 9 and 13 reads Cl. No. Heads under which Information is required Remarks by Distt. & Sessions Judge Remarks by the High Court 7. Whether the officer was warned/visited with penalty during the period under review? if so, give brief particulars No. Visited with penalty withholding of one increment vide office order dated 21/23/10/2002 9. Has he maintained a reputation for honesty and impartiality during the period under report ? Nothing adverse came to notice Good Complaints received by the HC and the pending. 13. if so, give brief particulars No. Visited with penalty withholding of one increment vide office order dated 21/23/10/2002 9. Has he maintained a reputation for honesty and impartiality during the period under report ? Nothing adverse came to notice Good Complaints received by the HC and the pending. 13. Net result: (Outstanding, Very Good, Good, Average, Poor) Average in view of No. 7 and 9 above 53. From the reasons noticed above, there is nothing in the record to show that the petitioner was down-graded for any other reasons. 54. The penalty imposed is nonest view of my findings above and the pendency of claimants had no relevance to column No. 9 and could not have been recorded in the A.C.R. In this fact situation, grading of the petitioner as Average against column No. 13 "Net Result" is un-tenable both in law and facts. In this view of the matter, the grading of the petitioner is liable to be revised looking to the remarks of the High Court against various columns dehors the remarks against Column No. 7 and 9. The remarks against Column No. 7 and 9, for reasons recorded above, are liable to be quashed from the ACR for the year 2002-2003. 55. So far super-session of the petitioner is concerned, the record shows he was "not found fit and suitable for promotion" apparently on the basis of the penalty imposed upon him and pendency of the claimants. In the minutes of the Full Court, considering his case for promotion it is recorded. "Shri R.K. Mittal, presently working as Administrative Officer, H.P. State Legal Service Authority, upon consideration along with other officers falling in the zone of consideration, was not found fit and suitable, at this stage, for promotion." I may hasten to add that no reasons are recorded why the petitioner was not found fit and suitable for promotion. 56. It would be pertinent to note here that when this matter came up for hearing on September 24, 2004, it was pointed out that respondent No. 2, in its return, has taken a stand that grace mark as-to maintain inter -e seniority as per principles and procedure for selection and appointment to the H.P. Higher Judicial Service were not awarded to or given to the petitioner because he was not otherwise found suitable and fit for promotion. The respondent No. 2 had not explained in its return why the petitioner was not found "suitable and fit" for promotion. In this view of the matter, the respondent No. 2 was directed to file an affidavit detailing the reasons, if any, as to why the petitioner otherwise was not found fit and suitable for promotion. Was it on account of imposition of penalty or for any other reason. Pursuant to the directions of this Court, the Registrar General of the High Court filed an affidavit saying that the records of the Honble Full Court are confidential in nature and, therefore, the reasons, justification for finding the petitioner unfit for promotion are not spelt out in the affidavit. The record, however, shall be produced in the Court on the next date of listing of the case or as and when directed by the Court. I have seen the records including the notes for the Full Court and the minutes of the Full Court Meetings. There is nothing, apart from impugned penalty and pendency of complaints, which might have found him unfit and unsuitable for promotion. 57. As pointed out by the Supreme Court in Gurdial Singh Fijji v. State of Punjab and others, 1979(2) Supreme Court Cases 368 and Union of India v. Mohan Lal Capoor, 1973(2) SCC 836 that a particular officer was "not found suitable" is conclusion and not a reason to support the decision to supersede such Officer. Reasons, it was observed in Mohan Lal Capoor, "are the links between the materials on which certain conclusions are based and the actual conclusions". They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. Their Lordshipos further observed: "True, that it is not expected that the Selection Committee should give anything approaching the judgment of a Court, but it at least state, as briefly as it may, why it came to the conclusion that the officer concerned was found to be-not suitable for inclusion in the Select List. Their Lordshipos further observed: "True, that it is not expected that the Selection Committee should give anything approaching the judgment of a Court, but it at least state, as briefly as it may, why it came to the conclusion that the officer concerned was found to be-not suitable for inclusion in the Select List. In the absence of any such reason, we are unable to agree with the High Court that the Selection Committee had another "reason" for not bringing the appellant on the Select List1. 58. In the present case, I am unable to cull out or fathom any reason from the records as to why the petitioner was not found suitable for promotion apart from: (a) He was visited with penalty in the year 2002 relating to alleged misconduct in the year 1998. (b) Certain complaints were pending against him. 59. I hardly need to emphasis that reasons for ignoring an employee for promotion have to be disclosed in the proceedings of the Committee or in this case Full Court so that if the action is challenged, it may be disclosed to the Court as to what material and reasons prevailed in the mind of such Authority for ignoring such employee. In the absence of any reason, it is not possible to hold, in judicial review based on record, that the petitioner was not fit and suitable for promotion. 60. It is well settled that every action of an Authority which has civil consequences must be informed by reasons. The logic is that every action with civil consequences is subject to judicial review under Article 226 and 32 of the Constitution. It is, therefore, necessary that reasons are given for an action which has civil consequences where there is a right of judicial review to enable a Court, in a judicial review, to judge the validity of such sanction. Any action, with civil consequences, in the absence of reasons would be stultified. The respondent No. 2 was bound to give reasons for the rejection of the representation of the petitioner and also for not finding the petitioner fit and suitable for promotion to the Higher Judicial Service. 61. The High Court has framed a Scheme titled. "Principles and Procedure to be followed in making selection for promotion to the Himachal Pradesh Higher Judicial Service". 61. The High Court has framed a Scheme titled. "Principles and Procedure to be followed in making selection for promotion to the Himachal Pradesh Higher Judicial Service". The Scheme provides that appointments by promotion shall be made by following the Principles and procedure in the Scheme. The selection, it provides, shall have to be made on the basis of examination of judgments, assessment of the A.C. Rs. for the last five years and Special Report of the District and Sessions Judge to be evaluated as under:- (I) Examination of judgments (Civil and Criminal) rendered during the last one year for one month 45 marks. (ii)Assessment of ACRs for the last five years 45 marks (iii) Special Report of the District and Sessions 10 marks Judge Total 100 marks. 62. The minimum qualifying marks for promotion are pegged at 50% of the total marks, i.e. 50 marks out of 100 marks. So far zone of consideration is concerned, it says that the zone of consideration shall ordinarily be three times the available and anticipated vacancies for the ensuing year. Part D of the Scheme provides that the Full Court shall constitute two Committees consisting of at least two Judges. Such committees are to act as "First Committee" and "Second Committee. Part-E provides that the First Committee shall assess the ACRs and the Special Report of the District and Sessions Judge in respect of the eligible Judicial officers. It says that while assessing the ACRs and examining the Special report, the first Committee will make evaluation on the basis of the entries in the various columns of the ACRs and the Special Reports and the assessment will not be made only on the basis of the entry made against the last column (net result) so far as the ACRs are concerned and the ultimate opinion of the District and Sessions Judge so far as the special reports are concerned. The Second Committee is to examine the judgments of the eligible officer and grade them as "Poor", "Average", "Good", "Very Good" and "Outstanding". The marks allocated to each of these grades are :- Poor 15 marks Average 22 marks Good 30 marks Very Good 35 marks Outstanding 40 marks 63. Final marks obtained are to be worked out by the process of averaging by dividing the gross total marks obtained for all the judgments by the number of judgments examined. The marks allocated to each of these grades are :- Poor 15 marks Average 22 marks Good 30 marks Very Good 35 marks Outstanding 40 marks 63. Final marks obtained are to be worked out by the process of averaging by dividing the gross total marks obtained for all the judgments by the number of judgments examined. Part-F of the Scheme provides for the grace marks. The Full Court, it says, shall have the power to award up to five grace marks to a successful judicial officer in order to maintain inter se seniority in the lower cadre. The Full Court shall also have the power to award up to two grace marks in order to bring an eligible Judicial Officer to the minimum qualifying marks. Merit list thereafter is to be prepared on the basis of the marks obtained by each eligible Judicial Officer under different heads to be added. The merit list is to be prepared considering of double the number of available vacancies and such merit list shall remain in operation for a period of one year. 64. The records in the present case show that the petitioner obtained 59.85 marks out of the total 100 marks and thus, was qualified for promotion. His immediate two juniors, respondent No. 3 and 4 indeed have obtained 63.64 and 63.74 marks out of 100, but the petitioner was entitled to five grace marks to maintain inter se seniority and therefore, ought to have been promoted in accordance with the Scheme. For the first vacancy, only three eligible officers who had obtained the minimum qualifying marks were to be considered., 65. It may be apposite to observe here that the validity of the procedure followed in making selection for promotion to the Higher Judicial Service as envisaged in the procedure came up for consideration before the Apex Court in Special Leave to Appeal (Civil) No. 7151 of 1995 Govind Ram Sharma v. High Court of HP. It may be apposite to observe here that the validity of the procedure followed in making selection for promotion to the Higher Judicial Service as envisaged in the procedure came up for consideration before the Apex Court in Special Leave to Appeal (Civil) No. 7151 of 1995 Govind Ram Sharma v. High Court of HP. and the Apex Court hold that provision in regard to grant of grace marks on the assessment made by the two Committees is an enabling provision which enables the Full Court to grant grace marks not exceeding 5 to successful candidate in order to maintain the inter se seniority between the successful candidate and the second part of that Rule enable the Full Court to award up to two grace marks in order to bring the Judicial Officer to the minimum qualifying marks. A contention was raised before the Supreme Court that the procedure in regard to grant of grace marks is unreasonable and adversely affects the chances of promotion of candidates who secure higher marks on the assessment made by the two Committees. The Supreme Court observed:- "The provision in regard to grant of grace marks is an enabling provision which enables the Full Court to grant grace marks not exceeding 5 to successful candidate in order to maintain the inter se seniority between the successful candidate and the second part of that Rule enable the Full Court to award up to two grace marks in order to bring the Judicial Officer to the minimum qualifying marks. Now after the inter se merit has been assessed by the two Committees and marks have been awarded, the successful candidates would have to be arranged for the purposes of seniority in the promotion cadre. What the procedure provides is that while fixing the seniority amongst the meritorious candidates if a senior person in the tower rank has I secured less marks as compared to his junior, the inter se seniority will not be affected if the difference is of five marks or less and that would be made up grating up to 5 grace marks." (Emphasis supplied) 66. It may also be observed that "average" remark as are not adverse remarks and merely because an Officer has earned an average entry would not exclude him from consideration for promotion to the Higher Judicial Service because under the Scheme, as noticed above, average entry in the A.C.R. gets lesser, marks than a good or I very good entry. Nevertheless, it is not a disqualification for consideration. The petitioner was not found fit and suitable only for two reasons as noticed earlier. (a) Imposition of penalty of forfeiture of one increment. Without cumulative effect; and (b) Pending complaints; which reasons are unfounded? To conclude: (a) The impugned order of penalty dated October 21/23, 2002 imposing penalty of withholding of one increment for one year relating to the period 1998 recorded in the A.C.R. for the year 2002-03 being unsustainable in the eyes of law is liable to be quashed. (b) The penalty relating to the year 1998, for the reasons in the foregoing paras, could not have been considered for his non-suitability for promotion in the year 2003. (c) Remarks in the A. C. Rs. regarding pendency of complaints are of no consequences and could not be considered to be adverse so as to make the petitioner unfit and not suitable for promotion. (d) The grading of the petitioner as "Average" in the A.C.R. is liable to be upgraded. 67. For the reasons recorded above, the petition is allowed in following terms: (a) Order dated 21/23.10.2002, "Annexure P7" whereby minor penalty of withholding of one increment without cumulative effect for one year has been inflicted on the petitioner is set aside and quashed consequently the letter of the Registrar General of the High Court conveying to the petitioner about his appeal/review/representation having been rejected is also quashed. (b) The remarks as conveyed to the petitioner in his A.C.R. for the year 2002-03 (P-10) against columns No. 7, 9 and 13 are quashed. (c) The respondent No. 2 shall review the remarks in the A.C.R. for the year 2002-03 against these columns and record appropriate remarks after taking into consideration the remarks against all the columns in the light of the observations made herein above. (d) The remarks in the A.C.R. for the year 1998-99 against column No. 8 are also quashed.. (c) The respondent No. 2 shall review the remarks in the A.C.R. for the year 2002-03 against these columns and record appropriate remarks after taking into consideration the remarks against all the columns in the light of the observations made herein above. (d) The remarks in the A.C.R. for the year 1998-99 against column No. 8 are also quashed.. (e) After appropriate remarks are recorded in the ACR, the respondent No. 2 shall consider the petitioner for promotion to the HP. Higher Judicial Service in accordance with the Principles and Procedure by awarding appropriate grace marks, if necessary against the first vacancy from the date respondents No. 3 and 4 were promoted. (f) The petitioner shall also be entitled to all consequential benefits including seniority etc.(g) Respondent No 2 shall take necessary action in terms of the above directions within six weeks from today.