Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 53 (PNJ)

Ashok Kumar Sood v. State of Punjab

2006-01-06

BALDEV SINGH, J.S.NARANG

body2006
JUDGMENT J.S. NARANG, J. 1. This judgment would dispose of CWP No. 9037, 12234 and 1395 of 2005, as the common questions to be interpreted and decided are involved though the facts relating to the service of the respective petitioners are at some variance, which would not affect the resultant decision rendered accordingly. 2. In the first instance, the facts are being taken from CWP No.9037 of 2005. 3. The petitioner was appointed as Sub Divisional Engineer by direct recruitment in the year 1970. He was promoted as Executive Engineer in the year 1979 and thereafter earned promotion to the rank of Superintending Engineer in May 1998. From the perusal of the documents appended with the petition the seniority position interse the petitioner and respondents No. 2 and 3 emerged as under:- Sr. No. Name of Officer Seniority 1. Sh.J.P. Chander, Respondent No.2 14 2. Sh. Ashok Kumar, Petitioner 20 3. Sh. N.K. Aggarwal, Respondent No.3 25 It may be noticed here that respondent No.3 Shri N.K. Aggarwal, had filed CWP No.6724 of 2002, claiming higher seniority and that the said petition is pending in this Court as yet. 5. For the purpose of filling vacancies of Chief Engineers in the Public Works Department (Building and Roads) Branch, separate Departmental Promotion Committees were constituted for considering the eligible candidates for filling the reserved vacancy and the vacancy in the general category. Shri J.P. Chander, having been shown at Seniority No.14 was considered against the general as well as reserved category vacancy but was not found suitable as he did not meet the bench mark of 15 marks. It may be noticed that the aforestated bench mark was required to be determined as per the instructions dated December 29, 2000, issued by the government of Punjab, which had been subsequently modified/updated by virtue of the instructions dated September 6, 2001, copies of which have been appended as Annexures P3 and P4 respectively. One Shri Amritpal Singh i.e. petitioner in CWP No.1395 of 2005, had been recommended for promotion as he had been graded as “Very Good” by the Departmental Promotion committee (hereinafter referred to as “the DPC”). However , against the general category vacancy one Shri D.S. Sekhon, was found suitable and was recommended by the DPC, pursuant thereto he was promoted as Chief Engineer on February 5, 2003. However , against the general category vacancy one Shri D.S. Sekhon, was found suitable and was recommended by the DPC, pursuant thereto he was promoted as Chief Engineer on February 5, 2003. Respondent No.2-Shri J.P. Chander, was not found suitable despite the fact that he ranked senior to Shri D.S. Sekhon. It may be noticed that Shri D.S. Sekhon has retired on June 30, 2004.. 6. It has been averred that respondent No.2-Shri J.P. Chander, had been awarded remarks as “Very Good” in the Annual Confidential Report (ACR) for the year 2000-01. For the year 2001-02, he had been awarded the remarks as “Good”. Respondent No.2 represented to the government for upgradation of his Annual Confidential Reports for the aforestated years from “Very Good” and “Good” to “Outstanding”. As per the averment of the petitioner, the remarks of respondent No.2 for the aforestated Annual Confidential Reports have been upgraded to “outstanding” for both the years. Thus, in view of this, respondent No.2 would be taken to have acquired the bench mark of 15 marks pursuant to the aforestated government instructions. 7. In view of the above, the respondent-State directed that a Review Departmental Promotion Committee be held and that the promotion of Shri Amrit Pal Singh, recommended by the DPC in its proceeding dated November 25, 2002, be reviewed in view of the changed Annual Confidential Report of respondent No.2- Shri J.P.Chander. Consequently, the Review Departmental Promotion Committee was constituted to be held on December 21, 2004 but for the reasons best known to the government, the same was postponed/deferred. This action of the government has been challenged by Shri Amritpal Singh,Chief Engineer in CWP No.1395 of 2005 ( which is being decided along with the present petition). It may also be noticed that while issuing notice of motion in the aforestated case, the reversion of Shri Amritpal Singh from the post of Chief Engineer has been stayed vide order dated January 25, 2005. It may also be noticed that while issuing notice of motion in the aforestated case, the reversion of Shri Amritpal Singh from the post of Chief Engineer has been stayed vide order dated January 25, 2005. The stand of the government in the aforestated petition filed by Shri Amritpal Singh is against the vacancy reserved for members of the Scheduled Caste , Shri Amritpal Singh had been promoted as Chief Engineer by superseding Shri J.P.Chander, by taking into consideration the overall assessment awarded to him by the concerned Administrative Secretary during the year 2000-01 and 2001-02 wherein his overall assessment for three years was downgraded from “outstanding” to “good” without recording any reasons in this regard. Shri J.P.Chander had represented against the aforestated and that after taking the advice of the Department of Personnel, it had been decided that the overall assessment as recorded by the two Reporting Officers i.e. the Chief Engineers, based on field data and highlighted in the Annual Confidential Reports of these years having been taken into account, the gradation of “Outstanding” awarded to him by the Chief Engineers shall be considered as compared to the overall assessment “good” taken into account by the DPC held on December 30, 2003. It is for this reason the Review Departmental Promotion Commitee had been convened. The extract of the relevant paras i.e. Para Nos.3, and 7 to 10, from the written statement filed by the Government in CWP No.1395 of 2005,is as under:- “ XXXX XXXXX XXXX Against the other vacancy reserved for members of Scheduled Castes, the Petitioner was promoted as Chief Engineer superseding respondent No.2 on account of the fact that the DPC took into consideration the overall assessment awarded to him by the concerned Administrative Secretary during the years 2000-01 and 2001-02, wherein his overall assessment for three years was downgraded from “Outstanding” to “Good” without recording any reasoning for doing so. The respondent No.2 represented against down grading his assessment by the concerned Administrative Secretary and after taking the advice of the Department of Personnel, it has been decided that the overall assessment as recorded by the two Reporting Officers i.e. two Chief Engineers based on field data highlighted in the Confidential reports of these years shall be taken into account, which meant that the gradation of “outstanding” awarded to him by the Chief Engineers shall be considered as compared to the overall assessment “Good” taken into account by the DPC held on 30.12.2003. For these reasons, meeting of the review DPC had been convened, which later on had to be postponed.” “That paras No. 7 to 10, as alleged are denied on account of averments made in para No.3 supra of written statement. It is reiterated that the DPC took into consideration the overall assessment awarded to him by the concerned Administrative Secretary during the years 2000-01 and 2001-02, wherein his overall assessment for these years was downgraded from “Outstanding” to “Very Good” and “good” respectively without recording any reasoning for doing so. The respondent No.2 represented against down grading the assessment by the concerned Administrative Secretary and after taking the advice of the Department of Personnel, it has been decided that the overall assessment as recorded by the two Reporting Officers i.e. two Chief Engineers based on field data highlighted in the Confidential reports for these years shall be taken into account, which meant that the gradation of “Outstanding” awarded to him by the Chief Engineers shall be considered as compared to the overall assessment “Good” taken into account by the DPC held on 30.12.2003. For these reasons, meeting of the review DPC had been convened, which later on had to be postponed.” 8. It is also the stand of the Government that the Department of Personnel is the competent authority to infer the policy decision taken by the Government from time to time by taking into consideration the facts of the case. It has also been observed that the then Public Works Minister was well within his rights to record his remarks in the Annual Confidential Report of Shri J.P.Chander for the year 2000-01. So far as the remarks recorded by the then Secretary Public Works in the Annual Confidential Reports of Shri J.P.Chander for the year 2001-02 are concerned, are not to be treated as valid.. So far as the remarks recorded by the then Secretary Public Works in the Annual Confidential Reports of Shri J.P.Chander for the year 2001-02 are concerned, are not to be treated as valid.. Therefore, the remarks recorded by the two Chief Engineers in the aforestated Annual Confidential Reports have been held good. In this regard, it shall be apposite to notice the reply of the Government submitted to sub para (ii) of para No.12 in the aforestated petition which reads as under:- “Sub para No. (ii) That sub para No. (ii), as alleged, is denied. In this connection it is submitted that the Department of Personnel is the competent authority to interpret the policy decision taken by the State Govt. from time to time and taking into account the facts of the case, the concerned department advised as follows: 1) The then Public Works Minister was well within his rights to record his remarks in the ACR of Sh. J.P. Chander for the year 2000-2001. 2) As regards ACR for the year 2001-02, remarks recorded by the then Secretary Public Works in the ACR of Sh. J.P. Chander are not to be treated as valid. If there is no difference of opinion over the remarks recorded by the two Chief Engineers in this ACR such remarks recorded by the two Chief Engineers should hold good. In view of above, if required, the matter of promotion may be placed before the D.P.C as per prescribed procedure. 9. On account of these facts the Petitioner has no reason to agitate.” 10. It is the case of the petitioner that the reviewing authority of the petitioner had classified his Annual Confidential Report as “outstanding” for the year 2001-02 and also for the year 2002-03. Thus, there was no question for having arbitrarily downgrading the aforestated report of the accepting authority to “Very Good”, as no reasons have been recorded for such down gradation . In this regard, the petitioner is similarly situated as Shri J.P.Chander Respondent No.2. 11. It is the averment of the petitioner that there is no rule or instructions which would permit the filing of a representation against the uncommunicated Annual Confidential Report, which does not contain any adverse remarks. As per the instructions, the representation is maintainable only against the adverse Annual Confidential Reports, which may be communicated. 11. It is the averment of the petitioner that there is no rule or instructions which would permit the filing of a representation against the uncommunicated Annual Confidential Report, which does not contain any adverse remarks. As per the instructions, the representation is maintainable only against the adverse Annual Confidential Reports, which may be communicated. The uncommunicated Annual Confidential Reports are not even supposed to be in the knowledge of the officer concerned. Therefore, the question of filing any representation cannot and would not arise. However, for any reason the Annual Confidential Report of an officer is upgraded, this act of the authority would become challengeable by way of invoking the extraordinary jurisdiction of the Court under Articles 226/227 of the Constitution of India. In this regard reliance has been placed upon the dicta of the Hon’ble Supreme Court of India rendered in re: Lakhi Ram v. State of Haryana and others, 1982(1) SLR 650. 12. It has also been averred that the Current Minister/Chief Minister could have assessed the work of Shri J.P. Chander respondent No.,2 for a period of 15 days i.e. after March 13, 2003, the date when the notification for the formulation of new cabinet and distribution of the departments had been made. As per the rules and instructions, no Annual Confidential Report can be written for a period which is less than three months. Thus, the Current Minister could not have any personal knowledge of the work and conduct of Shri J.P.Chander respondent No.2, therefore, could not sit in judgment upon the report/remarks of the Administrative Secretary. Thus, the aforestated upgradation of the Annual Confidential Reports of respondent No.2, for the aforestated period, is not at all sustainable and, therefore, deserves to be vitiated. 13. It is also the case of the petitioner that as per the instructions dated February 8,1968, the Minister-in-charge is neither recording nor accepting authority, therefore, the power to upgrade the Annual Confidential Report did not vest in the Minister concerned. However, he may be competent in a particular case to send for the personal file of an officer and record such remarks as he considers appropriate on the basis of his personal knowledge. He could not sit as an appellate authority for the purpose of upgrading the Annual Confidential Report. However, he may be competent in a particular case to send for the personal file of an officer and record such remarks as he considers appropriate on the basis of his personal knowledge. He could not sit as an appellate authority for the purpose of upgrading the Annual Confidential Report. It is also the settled law that once a decision has been taken and acted upon the successor officer cannot reconsider the matter for the purpose of re-writing the remarks recorded. In support of this contention, reference has been made to a Division Bench judgment of this Court rendered in re: Sarv Mittar Sharma v. Punjab and Haryana High Court, 1992 (4) SLR 1. Reference has also been made to the Standing Guide ,on Annual Confidential Report, issued by the Department of Personnel, Government of Punjab, 2nd Edition corrected upto August 31, 2001 and that a pointed reference has been made to page 87 and further at page 10 of the said book whereby the manner and the method in which the Minister-in-charge is expected to act, has been indicated. The excerpt therefrom reads as under:- (ii)The Minister-in-charge will be the accepting authority in regard to Additional Secretries, Joint Secretaries, Deputy Secretaries, and Heads of Departments (all India Service Officers). In respect of the Heads of Departments (other than all India Service Officers), the Minister-in-Charge will be the reviewing authority. In the case of other officers, the Minister- in-charge would normally be neither a recording nor an accepting authority. He would be competent , however, in any particular case, if he so chooses to send for the personal file of an officer and record such remarks therein as he considers should be made on the basis of his personal knowledge.” 14. Alternatively, it has been averred that passing of an order in favour of respondent No.2 -Shri J.P. Chander, by virtue of which the Annual Confidential Report has been upgraded, the interest of the petitioner has been adversely affected. In such a situation, the principle of opportunity of being heard has been violated, the petitioner ought to have been granted such opportunity in view of the dicta enunciated and laid down by the Hon’ble Supreme Court as well as this Court from time to time i.e. audi altrem partem. In such a situation, the principle of opportunity of being heard has been violated, the petitioner ought to have been granted such opportunity in view of the dicta enunciated and laid down by the Hon’ble Supreme Court as well as this Court from time to time i.e. audi altrem partem. Alternatively, the petitioner would also be entitled to the similar relief if the relief granted to respondent No.2 Shri J.P. Chander is accepted. In such eventuality, the petitioner and respondent No.2 would have to be treated equally. 15. It has been further averred that two vacancies in the post of Chief Engineers were anticipated to have arisen consequent upon the retirement on 30.6.2005 and another would arise on December 31, 2005. As per the information of the petitioner, a Departmental Committee was constituted to consider the claims of all the eligible officers, the committee met on May 25, 2005 and that the petitioner as also the respondents have been duly considered for the aforestated vacancies and that the petitioner as also respondents No. 2 and 3 have earned the grades as under:- No. Name of Officer 1. Sh.J.P. Chander, Respondent No.2. 16 2. Sh. Ashok Kumar, Petitioner 17 3. Sh. N.K. Aggarwal, Respondent No.3. 19 4. Sh. K.J.S. Brar, S.E.” It is also the contention that if the petitioner is similarly treated as Shri J.P.Chander respondent No.2, the merit as per upgraded Annual Confidential Reports would show that the petitioner would earn 19, Shri J.P.Chander would earn 16 and Shri N.K.Aggarwal would earn 19. In this situation the petitioner would get the first vacancy of Chief Engineer which has now been given to respondent No.3 and that respondent No.2 would not be able to earn promotion to the post of Chief Engineer. 16. The relief claimed is that the upgradation of the Annual Confidential Report of respondent No.2 Shri J.P.Chande4r for the year 2000-01, 2001-02, deserves to be quashed but if the same are sustainable under law, similar treatment deserves to be meted out to the petitioner by upgrading the Annual Confidential Reports of the petitioner for the year 2001-02 and 2002-03. This would have the resultant effect thereon. Thus, the recommendation made in favour of respondents No. 2 and 3 for the post of Chief Engineer would deserve to be quashed and that the claim of the petitioner as also others would require re-consideration accordingly., 17. This would have the resultant effect thereon. Thus, the recommendation made in favour of respondents No. 2 and 3 for the post of Chief Engineer would deserve to be quashed and that the claim of the petitioner as also others would require re-consideration accordingly., 17. Notice of motion was issued vide order dated May 31, 2005 and that notice regarding stay as well had been issued. It is on July 7, 2005, a Division Bench of this Court opined that in the meantime, no promotion be made till the adjourned date, which was extended from time to time. It was on July 29, 2005, learned Additional Advocate General, placed on record a copy of the order dated July 26, 2005, passed by the Government vide which the Annual Confidential Reports of the petitioner for the period November 1, 2002 to March 31, 2003, has been treated as “outstanding”. Copy thereof had been supplied to the concerned counsel. Learned counsel for the petitioner submitted that treating the Annual Confidential Reports for the aforestated period is “outstanding” would not ultimately solve the point at issue. 18. The petition has been contested and three separate written statements have been filed by all the respondents. 19. The stand of the Government i.e. respondent No.1 is that respondent No.3 Mr.N.K.Aggarwal; has also filed CWP No.6724 of 2002, and the same is pending before this Court. It may be mentioned that we had sent for the aforestated Court file and we find that the said petition had been admitted by a Division Bench of this Court vide order dated November 26, 2002-and that the relief claimed is that Mr. N.K. Aggarwal, petitioner deserves to be considered for the post of Chief engineer and that respondents No. 2 and 3 Mr. A.K. Sood (petitioner in the present petition) and Mr.J.P.Chander respondent No.2 in the present petition be not considered for promotion to the post of Chief Engineer. The perusal of the aforestated court file shows that a direction had been issued by a Division Bench vide order dated May 1, 2002, that in the meanwhile the DPC would consider the case of the petitioner ( Mr.N.K.Aggarwal) for promotion to the post of Chief Engineer and that this consideration would be subject to further order of the Court and further the result of selection will not be declared till further orders. The order reads as under:- “ C.M allowed as prayed. Notice of motion for 14.5.2002. Process be given dasti. Meanwhile, the Departmental Promotion Committee will consider the case of the petitioner as well for promotion to the post of Chief Engineer. This will be provisional and subject to further orders of the court. The result of the selection will not be declared till further orders. Copy of this order be given dasti under signatures of the Court Secretary/Reader. Sd/- N.K.SODHI JUDGE Sd/ JASBIR SINGH JUDGE .” 20. Again an order dated 23.11.2003, had been passed giving direction that if the petitioner falls beyond the limits of the prescribed zone of consideration he shall be considered separately and his result shall be kept in a sealed cover. The order dated 23.11.2002, reads as under:- “ We have heard the learned counsel for the parties at some length. It is stated by the learned counsel for the State that DPC is meeting on November 25, 2002, for considering the candidates for the post of Chief Engineer. It is also stated that the petitioner may not fall in the zone of consideration. Be that as it may, we do not intend to modify the interim order granted by the Division Bench as we are listing the matter for final hearing on November 26, 2002. If the petitioner falls behind the limits of the prescribed zone of consideration, he shall be considered separately and his result be kept in a sealed cover. The respondents would be considered obviously on their own seniority and any order passed thereupon will be subject to further order passed in the writ petition. List the matter on November 26, 2002. Sd/-SWATANTER KUMAR JUDGE Sd/- VINEY MITTAL 23.11.2002 JUDGE “ 21. It has been noticed in the order dated November 26, 2002 that the result of the DPC had been produced in a sealed cover which was opened and perused by a Division Bench of this court and was ordered to be re-sealed and was returned to the Counsel for the State and thereafter the petition had been ordered to be admitted. The order dated November 26, 2002, reads as under:- “ The result of the DPC has been produced in sealed cover today. After perusing the minutes of the DPC, we order re-seal of the same. It is returned to the counsel for the State. Admit. The order dated November 26, 2002, reads as under:- “ The result of the DPC has been produced in sealed cover today. After perusing the minutes of the DPC, we order re-seal of the same. It is returned to the counsel for the State. Admit. Liberty to move the learned Single Judge for early hearing granted. Sd/ (SWATANTER KUMAR) JUDGE SD/- (VINEY MITTAL) JUDGE “ 26.11.2002. “ 22. In the aforestated petition C.M.No.8693 of 2003, had been filed vide which a direction had been issued vide order dated 22.4.2002, for considering the petitioner ( Mr. N.K.Aggarwal) in the DPC meeting scheduled to be held on April 24, 2003 and the direction had been given that the result be kept in a sealed cover,. As is indicative from the subsequent orders passed in the aforestated petition that the meeting of the DPC was postponed for some reason or the other. 23. Another C.M.No.20168 of 2003, had been filed and a direction had been issued to the government for holding the meeting of the DPC for promotion to the post of Chief engineer with a direction that if the DPC takes place , the result thereof be produced in a sealed cover before this Court. Pursuant to order dated September 19, 2003 and the subsequent orders passed from time to time the DPC was held and the report thereof was submitted before the learned Single Judge. Upon opening the sealed cover, it has been recorded that Charanjit Lal has been selected but a restraint order has been passed vide order dated January 22, 2004 that Charanjit Lal be not promoted and posted as Chief Engineer, the order reads as under:- “ I have seen the report of the DPC according to which Charanjit Lal has been selected. The other post belonging to the general category of Chief Engineer (Civil) has not been considered. Let the report be sealed and placed on record. For arguments to come up on 12.2.2004. The parties are given right to challenge the report of DPC. In the meantime, Charanjit Lal be not promoted and posted as Chief Engineer. 22.1.2004 Sd/- K.C.GUPTA, JUDGE “ 24. This petition is now posted for regular hearing 30.11.2005 and that another CWP No.43481 of 2001, has also been ordered to be heard with this petition.. 25. The parties are given right to challenge the report of DPC. In the meantime, Charanjit Lal be not promoted and posted as Chief Engineer. 22.1.2004 Sd/- K.C.GUPTA, JUDGE “ 24. This petition is now posted for regular hearing 30.11.2005 and that another CWP No.43481 of 2001, has also been ordered to be heard with this petition.. 25. The above said facts have not been disclosed in the written statement filed in the present petition. 26. However, the case of the Government is that DPC meeting was held on November 26, 2002 in which Shri Amritpal Singh S.E. had been found fit for the post of Chief Engineer against the reserved vacancy meant for the Scheduled caste, by virtue of having acquired minimum bench mark required under the rules and instructions. Respondent No.2 ( Mr. J.P.Chander) was not found fit for promotion on account of his failure to secure minimum bench mark. It has been admitted that respondent No.2 was graded to be “outstanding” by the Chief Engineer but the concerned Administrative Secretary by virtue of being the accepting authority graded him “Very Good” for the year 2000-01. The concerned Minister of Public Works Departmernt sent for the Annual Confidential Report file of respondent No.2 and by order dated December 3, 2001, graded the aforestated Annual Confidential Report of respondent No.2 to be “outstanding”. Since the matters were not clear in regard to the competence of the Minister for recording such remarks as the same could not be considered having been awarded on the basis of and in view of the instructions dated December 29, 2000 and September 6, 2001. Thus, the assessment of respondent No.2 was taken as “ Very Good” which had been awarded by the Administrative Secretary for the year 2000-01. Similarly in respect of the Annual Confidential Report for the year 2001-02 of respondent No.2, the two Chief Engineers graded him to be “outstanding” but the concerned accepting authority i.e. the Administrative Secretary graded him “Good”. However, the Department of Personnel advised that the then Minister of Public Works was well within his rights to record his remarks in the Annual Confidential Report of respondent No.2.. However, the Department of Personnel advised that the then Minister of Public Works was well within his rights to record his remarks in the Annual Confidential Report of respondent No.2.. The Department of Personnel further advised that the remarks recorded by the then Secretary Public works Department for the year 2001-02, cannot be accepted as valid on the ground that there is no difference of opinion in regard to the remarks recorded by the two Chief Engineers in the Annual Confidential Report of that period. Therefore, the remarks recorded by two chief Engineers should hold good. It is upon these basis, it became imperative to hold the Review Department Promotion committee. It is on this apprehension Mr. Amritpal Singh, Chief Engineer, promoted against the reserved vacancy, preferred CWP No.1395 of 2005 and by virtue of interim order dated 25.1.2005, the reversion of the petitioner has been stayed till further orders by a Division Bench of this court. It has been admitted that convening the meeting of the Review Departmental Promotion committee, has been deferred in view of the interim order passed by a Division Bench of this Court in Mr.Amritpal Singh’s case i.e. CWP No.1395 of 2005.. 27. It is obvious that the DPC would have to meet for considering the claim of the petitioner as well as the respondents by applying instructions dated 29.12.2000 and 6.9.2001 and/or any other instructions applicable in this regard. The bench mark would also be calculated accordingly by accepting the Annual Confidential Reports of the concerned officials. However, the authority of the Minister Public Works Department by recording the remarks as “outstanding” in the case of respondent No,.2 for the year 2000- 01, shall have to be considered vis-a-vis the opinion of the Department of Personnel. It shall also have to be opined vis-a- vis the authority of the Administrative Secretary in the case of the remarks given by the two Chief Engineers grading the official to be “outstanding” for the year 2001-02 and that the right of the petitioner to be considered shall have to be examined accordingly. This consideration would also affect the petitioner because during the pendency of the petition, the government had informed that by way of passing the order dated July 26, 2005, the Annual Confidential Report for the year November 2002 to March 31 2003, relating to the petitioner has been treated as “outstanding”. This consideration would also affect the petitioner because during the pendency of the petition, the government had informed that by way of passing the order dated July 26, 2005, the Annual Confidential Report for the year November 2002 to March 31 2003, relating to the petitioner has been treated as “outstanding”. The order dated 26.7.2005, passed by the Governor, Punjab, has been appended as Annexure P4 in CWP No.12234 of 2005, which has been filed by Mr. N.K. Aggarwal.. 28. Respondent No.2 (Mr. J.P. Chander) has filed a separate written statement. The preliminary objection taken is that the respondent had been incorrectly ignored by the DPC in its meeting held on 25.11.2002, on the ground that the answering respondent did not achieve the requisite bench mark. The answering respondent had made representation against the incorrect act committed by the Administrative Secretary of the Department by way of downgrading the Annual Confidential Report of the answering respondent for the year 2000-01 and 2001-02 and that too without assigning any reasons and without communicating the same to the answering respondent. It is also averred that the vacancy which had to arise on June 30, 2005, a panel of three officers, in order of seniority, had been made and that Shri N.K.Aggarwal who had been graded as “outstanding” (having secured more than 17 marks) has been recommended for promotion as Chief Engineer. So far as the next vacancy which is due to fall vacant on December 31, 2005 on the retirement of one Shri Kuldip Singh, another panel of three officers, in order of seniority, namely respondent No.2, the petitioner and Shri K.J.S.Brar have been considered and in this panel all the three aforestated officials have been graded as “Very Good” (having secured 15 to 19 marks). Thus, respondent No.2 having secured more marks in the panel has been selected and recommended for promotion as Chief Engineer. Thus, in all eventuality, the petitioner does not get any chance to be promoted as Chief Engineer. It is also the case of respondent No.2 that the Annual Confidential Reports of respondent No.2 have already been reviewed in consultation with the Department of Personnel. Whereas, the Annual Confidential Reports of the petitioner for the period 2001-02 and 2002-03, have not been reviewed so far. Therefore, the claim of the petitioner is hypothetical and imaginary and that he cannot claim promotionto the rank of Chief Engineer. 29. Whereas, the Annual Confidential Reports of the petitioner for the period 2001-02 and 2002-03, have not been reviewed so far. Therefore, the claim of the petitioner is hypothetical and imaginary and that he cannot claim promotionto the rank of Chief Engineer. 29. So far as respondent No.3 is concerned, he has submitted a separate written statement and the plea set up is that the recommendations of the Departmental Promotion Committee made in favour of the answering respondent No.3 as also respondent No.2 be set aside. In fact, as per the averment of the petitioner, the service record of respondent No.3 is meritorious/outstanding and it is also not the case of the petitioner that the Annual Confidential Report of respondent No.3 have been upgraded as has been alleged in the case of respondent No.2, answering respondent has secured 19 marks and, therefore, would be entitled to get the first vacancy. In the aforestated situation, the petitioner cannot have any grouse or can have any cause of action against the answering respondent i.e. Shri N.K. Aggarwal. It is the admitted case of all that the rights/claims of the claimants have to be considered by keeping in view the instructions dated December 29, 2000, copy Annexure P3 and September 6, 2001, copy Annexure P4 and that as per these instructions the Annual Confidential Reports for five years have to be considered and that the officers earning 18 to 20 marks would be graded as outstanding and that the petitioner has himself admitted that the answering respondent Shri N.K. Aggarwal has obtained 19 marks, therefore, has “outstanding” record. Thus, the appointment of respondent No.3 in the slot of Chief Entgineer is inevitable. This petition in fact has been filed to put a spoke in the process of promotion to the rank of Chief Engineer. However, the answering respondent has admitted the filing of CWP No.6724 of 2002 by the answering respondent for the purpose of claiming seniority as per rule 12 (9)(c)(ii) of Punjab Service of Engineer Class-I Rules, 1965. So far as the answering respondent is concenred, his promotion to the rank of Chief Engineer is being unnecessarily put in a quandry. Because, in either eventuality the answering respondent is to be promoted to the rank of Chief Engineer, in view of the recommendation made by the DPC. Resultantly, the petition deserves to be dismissed. 30. So far as the answering respondent is concenred, his promotion to the rank of Chief Engineer is being unnecessarily put in a quandry. Because, in either eventuality the answering respondent is to be promoted to the rank of Chief Engineer, in view of the recommendation made by the DPC. Resultantly, the petition deserves to be dismissed. 30. Learned counsel for the petitioner has argued that respondent No.3 Shri J.P. Chander contested the ACR pertaining to the year 2000-01 and 2001-02, after he had been awarded the overall “Outstanding” report, the Secretary Public Works i.e. Reviewing/Accepting Authority differed with the aforesaid report of the reporting authority assessed as “outstanding” and assessed the same as “Good”. This certainly was not an adverse remark and that Shri J.P.Chander, could not have made any representation and that too before the Public Works Minister. 31. The Minister in-charge had the authority and the right to call for the personal file for perusal, but, that would not mean that he would or he could sit as a reviewing authority or Appellate Authority against the remarks of the final authority i.e. the Secretary Public Works, the accepting authority. 32. It shall be apposite to mention here that upon perusal of the record, we have noticed that on this issue a long drawn correspondence took place between the Public Works Minister as well as the Secretary, Public Works. Ultimately, the Public Work Minister accepted it to be a case of difference of opinion and that as per the rules of Business the matter was required to be placed before the Chief Minister. Consequently, the matter was placed before the Chief Minister and he agreed with the Public Works Minister by opining that the Minister was well within his rights to record the remarks in the ACR of J.P. Chander for the year 2000-01 and further the ACR for the year 2001-02, the remarks recorded by the Secretary Public Works in the ACR of Shri J.P.Chander are not to be treated as valid. If there is no difference of opinion over the remarks recorded by the two Chief Engineers in his ACR, such remarks recorded by the two Chief Engineers should hold good. While opining , the Chief Minister has also observed that the matter of promotion may be placed before the DPC as per the prescribed procedure. If there is no difference of opinion over the remarks recorded by the two Chief Engineers in his ACR, such remarks recorded by the two Chief Engineers should hold good. While opining , the Chief Minister has also observed that the matter of promotion may be placed before the DPC as per the prescribed procedure. It may be further noticed that during the pendency of the petition, the grading of the petitioner i.e. Shri A.K.Sood, has also been upgraded by the Public Works Minister acting in a similar manner as in the case of Shri J.P. Chander. The communication in this regard has been taken on record pursuant to our order dated July 29, 2005. The perusal of the record shows that in the case of the petitioner, no difference of opinion had arisen between the Public Works Minister and the Secretary Public Works. Resultantly, the aforestated order has been passed. 33. Learned counsel for the petitioner submits that in view of the aforestated order passed in favour of the petitioner, the plea of challenge to the upgradation of the ACR of Shri J.P.Chander, would be of no consequence as the petitioner would now rank at par for consideration before the DPC. 34. Learned counsel for the petitioner further argued that the matter relating to promotion to the post of Chief Engineer which were vacant and available and which have fallen vacant and which would fall vacant now, the eligible candidates including the petitioner deserve to be considered afresh. If any person had been considered on the basis of the ACR termed as “Good/Very Good” only he shall be entitled to be considered denovo by taking into consideration those reports as “Outstanding” as per the order passed by the Minister in-charge and that the stakes of the claimants should be considered accordingly. 35. He further contends that any person who has been selected against the reserved category, while applying the yardstick tainted with the earlier ACRs, now termed as “Outstanding”, would also be required to be considered afresh. 36. On the other hand, learned Additional Advocate General has argued that the matter requires consideration vis-a-vis the manner and the method in which the reports of the concerned officials have been upgraded to “Outstanding” wherein the difference of opinion had arisen between the two authorities i.e. the Administrative Secretary and the Minister in-charge. 36. On the other hand, learned Additional Advocate General has argued that the matter requires consideration vis-a-vis the manner and the method in which the reports of the concerned officials have been upgraded to “Outstanding” wherein the difference of opinion had arisen between the two authorities i.e. the Administrative Secretary and the Minister in-charge. The powers of the authorities have been defined under the rules and the instructions and none of the authorities is entitled to over-step its domain and power conferred accordingly. 37. Learned counsel for the private respondents have submitted that the claims of the private respondents deserve to be considered expeditiously in view of the matter having been finalized vis-a- vis the ACRs. If any person has been given the promotion in deference to the claim of the senior persons, the same shall also be required to be re-considered. A specific reference has been made to the case of A.P. Singh, who has been promoted to the rank of Chief Engineer, thus, while submitting the matters of promotion to the posts of Chief Engineers, once all over again to the Review DPCs, all orders in this regard need to be examined accordingly. The approach in this regard has been challenged by way of CWP No. 1395 of 2005, the order of reference contemplated to be passed/passed has been stayed by order dated 25.1.2005, passed in CWP No.1395 of 2005. 38. We have heard learned counsel for the parties at length and have also perused the paper book as also the respective pleadings of the parties and also the documents appended therewith. We had requisitioned the record pertaining to the claims of the claimants, which had been produced before us and was ordered to be retained till the disposal of the cases vide our order dated November 18, 2005, passed in CWP No.12234 of 2005. 39. We have pondered over the matter and have also considered the respective arguments of learned counsel for the parties. 39. We have pondered over the matter and have also considered the respective arguments of learned counsel for the parties. The perusal of the record shows that some of the officials had earned “outstanding” reports as reported by the reporting authorities but the reviewing and the accepting authority downgraded the same to the level of “Good” and “Very Good”, which obviously effected the manner of consideration of the officials pursuant to the instructions dated December 29, 2000 and September 6, 2001, which laid down the guide-lines for ascertaining/assessing the bench mark for the purpose of earning promotions accordingly. The perusal of the record further shows that the official respondents had taken the decision for setting up Review Departmental Promotion Committee as well for reconsidering the claims of the contenders. During this process the issue had also been raised as to whether the Minister in-charge is entitled to give the remarks by way of accepting the remarks of the reporting authority. We have also apprised ourselves vis-a-vis the reference of the matter to the Chief Minister in case of difference of opinion between the Minister incharge and the Administrative Secretary and the ultimate decision taken by the Chief Minister. As a sequel thereto, the decision rendered on the file is that the opinion of the Minister in-charge deserves to be upheld vis-a-vis the remark of the Administrative Secretary in the case of Shri J.P.Chander. The Chief Minister has further ordered that the matter be put up before the DPC for consideration as per the prescribed procedure. Similar approach has been adopted in the case of the petitioner i.e. Shri A.K. Sood, in whose case no difference of opinion had arisen and the opinion of the Minister incharge has been accepted by the Secretary, Public Works. Resultantly, the ACRs for the relevant period of both the officials are to be taken as “outstanding” for the relevant period. It is obvious that in view of the aforestated decision of the authorities, the claim of the concerned officials shall have to be re-assessed by the DPC. If any of the officials had stolen march over them, in view of the aforestated status, shall have to be reconsidered accordingly. 40. It is obvious that in view of the aforestated decision of the authorities, the claim of the concerned officials shall have to be re-assessed by the DPC. If any of the officials had stolen march over them, in view of the aforestated status, shall have to be reconsidered accordingly. 40. We have also considered the power and authority of the Minister in-charge vis-a-vis the Administrative Secretary and we have also perused the government instructions issued vide circular letter No.2334- ASI-60/15708,dated May 3, 1960 and circular letter No.15/9/90-1PP1/10407 dated June 12, 1990, which have been placed before us through the good offices of the learned Additional Advocate General Mr. Ashok Aggarwal and Mr. B.S.Chahal, Assistant Advocate General. 41. In regard to “ Confidential Reports” the government had issued instructions in detail vide circular letter dated May 3, 1960. For writing Annual Confidential Reports of the Secretaries,Joint Secretary, Heads of the Department, and other officers, working under the State Government, some procedural detail has been mentioned. In this regard it shall be apposite to notice para No. 5 and 16 of the aforestated instructions, which read as under:- “5. Writing of Annual Confidential Reports on the Secretaries, Joint Secretaries, Heads of Departments, and other officers, working under the State Government. - (i) The Administrative Secretaries to Government will write confidential reports on the Additional Secretaries, Joint Secretaries, Deputy Secretaries and Heads of Departments, included in their sphere of work. If the work of a Deputy Secretary or below passes through the Additional Secretary or Joint Secretary orother officer concerned will be initiated by the Additional Secretary/ Joint Secretary as the case may be, and will thereafter be put up to the Administrative Secretary for his remarks. In regard to Heads of Departments the Secretary will write the initial remarks though if much work has seen by an Additional or Joint Secretary, the former will consult him before doing so. The Confidential Reports on the work and conduct of the Inspector General of Police will be initited by the Home Secretary if he is of the rank of Commissioner. Thereafter, it will be recorded by the Chief Secretary, Minister- in-Charge of Home (Police) Department and the Chief Minister. The Confidential Reports on the work and conduct of the Inspector General of Police will be initited by the Home Secretary if he is of the rank of Commissioner. Thereafter, it will be recorded by the Chief Secretary, Minister- in-Charge of Home (Police) Department and the Chief Minister. In case, the Home Secretary is not of the rank of Commissioner, the Confidential Report of the Inspector General of Police will be initiated by the Chief Secretary, who will consult the Home Secretary, informally or otherwise, before recording his remarks. Thereafter, the remarks will be recorded by the Home Minister and the Chief Minister. (ii) The Minister-in-charge- will be the recording authority in respect of Secretaries to Government. (iii) The Minister in-charge will be the accepting authority in regard to Additional Secretaries, Joint Secretaries, Deputy Secretaries and Heads of Departments. In the case of other officers, the Minister-in-charge would normally be neither a recording nor an accepting authority. He would be competent, however, in any particular case, if he so chooses to send for the personal file of an officer and record such remarks therein as he considers should be made on the basis of his personal knowledge. (iv) A Deputy Minister will have the same rights regarding recording/accepting of remarks in the confidential reports as the Minister-in-charge. Explanatory Note.- A Minister or a Deputy or the Chief Parliamentary Secretary who has quit office, will not be competent to record remarks in the confidential reports of officers working in the Departments, which worked under him or his personal staff. The reports of the officers for whom the Ministers or Deputy Ministers are only reporting authority, shall be recorded by the Chief Minister .” 16. Soliciting of remarks to be discouraged. - Government have noticed an undesirable tendency among officers, officials to approach the higher authority for getting remarks out of the way on their personal files. The confidential remarks on the work of Government Servants are recorded by the competent authority in the normal course when due. The officer/officials should own no account, solicit for remarks in personal files whether from Ministers or their other superiors.” 42. The confidential remarks on the work of Government Servants are recorded by the competent authority in the normal course when due. The officer/officials should own no account, solicit for remarks in personal files whether from Ministers or their other superiors.” 42. It is abundantly clear that Minister-in-charge normally would neither be a recording nor an accepting authority in the case of other officers except the ones mentioned in the para, however, he shall have the discretion to send for the file of an officer and can record such remarks as he considers should be made on the basis of his personal knowledge. This would mean the Minister-in- charge shall have the authority to weigh the remarks of the Reviewing/Accepting Authority. Further, perusal of the instructions shows, the supremacy accorded to the Chief Minister in a given set of circumstances. If the Minister-in-charge is normally not the recording or accepting authority, the limiting of such right by virtue of para 7 of the instructions would not arise for the purpose of calling of personal file (ACR as per later instructions) for giving the remarks. For reference para No.7 is reproduced as under: “7. Minimum period for which a Reporting Officer should have seen the work of a subordinate before recording remarks on him. - - In future no reporting officer should record his remarks in confidential reports of an officer under him unless he has seen his work and conduct for at least three months. If the officer has served under the reporting authority for less than three months, the opinion of the officer under whom he has previously served at least three months should be obtained. XXX XXX XXXX XXX “. The usage of the word “personal file” perhaps caused some confusion, which has been clarified by the Government by virtue of Circular letter No.15/9/90-1PP1/10407 dated June 12, 1990 which reads as under: “Copy of Punjab Government circular letter No.15/9/90-1PP1 10407 dated the 12th June, 1990, from the Department of Personnel and Administrative Reforms, addressesd to all Heads of Departments etc.etc. Subject: Substituting the words “ACR file” for “Personal File”. I am directed to refer to the subject noted above and to say that it has been observed by the Government that the words ‘Personal File’ used in lieu of ‘ACR file’ in the ‘ Standing Guide on Annual Confidential Reports’ sometimes creates confusion. Subject: Substituting the words “ACR file” for “Personal File”. I am directed to refer to the subject noted above and to say that it has been observed by the Government that the words ‘Personal File’ used in lieu of ‘ACR file’ in the ‘ Standing Guide on Annual Confidential Reports’ sometimes creates confusion. The matter has, therefore, been reconsidered and it has been decided that the words ‘Annual Confidential Report File’ may be substituted in place of ‘Personal File’ in the ‘Standing Guide on Annual Confidential Reports’ and in the instructions issued,- vide this Department circular letter No. 15/7/90-1PP(I)/7681, dated the 30th April, 1990, wherever these occur. 2. The above amendment may please be brought to the notice of all Officers/Officials working under you for information and necessary action. 3. xxx xxx xxx xx”. 44. It may also be noticed that by providing instructions No.16, as noticed above, the Government has opined that the officer should not make it a habit to approach the higher authority for getting remarks out of the way on their personal files which have been recorded in the normal course when due. However, this would not restrict the power of the Minister-in-charge as envisaged under Instruction No.5. Of course, it should not be made a habit by the officer/official concerned. If the aforestated instruction is read in a water tight jacket, the power of the Minister-in-charge as noticed under Instruction No.5 would be of no consequence. Thus, both the aforestated instructions have to be read complimentary to each other, meaning thereby that habitually the power defined under Instruction No.5 should not be used. It is required to be used only when there is a wide difference between the reporting authority and the reviewing/accepting authority, as in the present case. 45. The perusal of the aforestated shows that the Minister incharge is entitled to call for the ACR and also the personal file of an official and is entitled to give the remarks. It is required to be used only when there is a wide difference between the reporting authority and the reviewing/accepting authority, as in the present case. 45. The perusal of the aforestated shows that the Minister incharge is entitled to call for the ACR and also the personal file of an official and is entitled to give the remarks. We have also perused the remarks given by the Minister- in-charge wherein he has categorically observed that he had the opportunity to observe the work and conduct of the officials concerned and that he does not subscribe to the view of the Secretary Public Works as the work and conduct assessed by the reporting authorities has been opined as “Outstanding”, who had better opportunity to watch the work and conduct of the official concerned. It obviously seems that the Minister incharge has opined on the basis of his personal knowledge and experience vis-a-vis the official concerned. We are of the opinion that as far as reviewing and accepting authority is concerned, the said authority is also subject to the control of the democratic set up propounded under the Constitution of India. In the democratic system the popularly elected person has to have the control upon the administrative authorities as per the rules and regulation and rules of business defined accordingly. We are further of the opinion that the Administrative Secretary while downgrading the ACR has not given the justifiable reasons, whereas in the case of both the officials i.e. Shri J.P. Chander and Shri A.K. Sood, the reporting authority has spelt out the consideration of the work and conduct of the officials under various heads and have ultimately opined the assessment in favour of the official concerned as “Outstanding”.. Thus, re-writing the report “Good” or “Very Good” would require detailed re-consideration. In the instant case, the perusal of the record shows that the Secretary has not given any reasons for differing with the report of the reporting authority. The purpose and object of giving the authority to the Minister in-charge for calling the personal file as also the ACR would be lost if the Minister incharge is not entitled to give the remarks accordingly. It is true that the rules though provide that the person must be under the control and surveillance of the authority concerned for at least a period of three months. It is true that the rules though provide that the person must be under the control and surveillance of the authority concerned for at least a period of three months. If that be so, the authority entitled to examine the aforestated files would lose the authority if in a given case the Ministry is formed and the Minister in- charge remained Minister in-charge for a period of 1-1/2 months and thereafter within 15 days the ministry is reconstituted and another person becomes the Minister in-charge, Would it mean that none of the Minister incharge would be entitled to opine accordingly ? We are of the considered opinion that the minimum period prescribed under the rules is laudable but this cannot take away the ultimate authority vested in the authority so prescribed. The period of three months as provided shall be applicable to the Reporting Authority and also the Reviewing and Accepting Authority as per the rules and regulation and instructions in this regard. 46. Apart from the above, the record shows that the Public Works Minister accepted the difference of opinion vis-a-vis himself and the Administrative Secretary and very fairly sent the same for the consideration of the Chief Minister. The Administrative hierarchy vis-a-vis the interpretration of instructions would always make it imperative that the person who holds the authority amongst the equivalence, shall be the authority to finally opine accordingly. In the present case, the Chief Minister has opined accordingly and as a result thereof, the upgradation of the ACR in the case of the officials has been rightly accepted. 47. In view of the above, the irresistible conclusion is that this writ petition deserves to be disposed of with a direction to the respondents to consider the claim of all the eligible candidates, by being placed before the DPC, who were and are in the zone of consideration for the purpose of filling the posts of Chief Engineers which had fallen vacant during the pendency of the petition and which may fall vacant upto the date of this judgment. No costs. 48. CWP No.12234 of 2005, filed by Shri N.K. Aggarwal; and CWP No.1395 of 2005, filed by Shri Amritpal Singh, are concerned the same deserve to be dismissed in view of the aforestated observations i.e. If they also fall within the aforesaid, they shall also have the right of consideration as per the rules and instructions applicable. No costs. 48. CWP No.12234 of 2005, filed by Shri N.K. Aggarwal; and CWP No.1395 of 2005, filed by Shri Amritpal Singh, are concerned the same deserve to be dismissed in view of the aforestated observations i.e. If they also fall within the aforesaid, they shall also have the right of consideration as per the rules and instructions applicable. We order accordingly.