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Himachal Pradesh High Court · body

2014 DIGILAW 143 (HP)

Satya Dev Sharma v. State of H. P.

2014-03-03

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. (Oral). This application has been filed with the following prayers: (i) That the impugned action of the respondent Department whereby although he applicant has been considered for promotion to the post of Executive Engineer (electrical), but due to non-consideration of ACRs of preceding five years, promotion of suitable officer has not been made. If respondent no.2 is not found fit for promotion as such by this Hon’ble Tribunal, the same may be quashed and set aside; (ii) That the respondent may be directed to promote the applicant against the one vacant post of Executive Engineer (Electrical) falling to the share of Diploma Holder Assistant Engineer (Electrical); (iii) That the respondents may be directed to produce the entire record pertaining to the case for the perusal of this Hon’ble Tribunal, especially elucidate the reasons as to under what circumstances the ACRs for the year 2003-04 and 2004-05 have not been produced for consideration of the DPC.” 2. Complaint is that the ACRs of preceding five years from the date of convening the meeting of Departmental Promotion Committee (DPC) and promotion to the post of Executive Engineer have not been considered and thereby the petitioner has been deprived of his fundamental right of being promoted as Executive Engineer. It has also been submitted that on account of non-consideration of ACRs for the reporting years 2003-04 and 2004-05, the petitioner could not find place in merit and ultimately promoted. 3. In reply, the 1st respondent while making a reference to the procedure prescribed under the rules with regard to the assessment of ACRs at the time of consideration of an incumbent for promotion to the higher rank, has categorically submitted that the ACRs of the officers in the zone of consideration, including the petitioner, for the five years were considered and the petitioner, who was junior to the 2nd respondent, could not be promoted on the basis of assessment made by the DPC. As regards the ACRs for the reporting years 2003-04 and 2004-05, it has been submitted that the same were not available at the time of convening the meeting of DPC, hence, as provided under the Rules, the ACRs of preceding years 1998-99 and 1999-2000, were considered. As regards the ACRs for the reporting years 2003-04 and 2004-05, it has been submitted that the same were not available at the time of convening the meeting of DPC, hence, as provided under the Rules, the ACRs of preceding years 1998-99 and 1999-2000, were considered. Therefore, the 2nd respondent being in merit and even senior also, was recommended for promotion to the post of Executive Engineer from the quota meant for Diploma Holder Assistant Engineers. 4. Reply filed on behalf of the 2nd respondent is also on the similar line. The same rather is supported by the guidelines Annexure R2/1, which provide for assessing of merits of the officers in the zone of consideration, where ACRs of a particular year has either not been recorded or not available and Annexure R2/2 proceedings of the DPC. 5. The petitioner, in rejoinder has come forward with the version that the ACRs for the reporting years 2003-04 and 2004-05 were available, but not considered deliberately and intentionally. 6. On hearing learned counsel on both sides and also going through the record, the petitioner and the 2nd respondent, admittedly, were Diploma Holder Engineers and working as Assistant Engineers. The quota for the category of the petitioner and the 2nd respondent for promotion to the post of Executive Engineer, as per Rules, admittedly is 30% and the criterion is merit-cum-seniority. In the year 2006, one anticipated vacancy fell in the quota of the category of the petitioner. Proceedings Annexure R2/3 reveal that including the petitioner and the 2nd respondent, one Nanak Chand were considered for promotion against the said post. As per the procedure prescribed for promotion to a higher post, the DPC had to consider the ACRs of 5 preceding years in respect of all the three officers, who were in the zone of consideration. The DPC decided to consider 5 ACRs of each officer in the zone of consideration commencing from the reporting year 2000-01 to 2004-05. However, ACRs upto the years 2000-01, 2001-02 and 2002-03 only were available and as ACRs for the years 2003-04 and 2004-05 were not available, therefore, as per the procedure prescribed vide guidelines Annexure R2/1, ACRs for the preceding years 1988-99 and 19992000, in respect of all the three officers were considered and assessment made on the basis thereof. However, ACRs upto the years 2000-01, 2001-02 and 2002-03 only were available and as ACRs for the years 2003-04 and 2004-05 were not available, therefore, as per the procedure prescribed vide guidelines Annexure R2/1, ACRs for the preceding years 1988-99 and 19992000, in respect of all the three officers were considered and assessment made on the basis thereof. The petitioner was graded as “good” as compared to the 2nd respondent, who was graded as “Very Good”. Therefore, he being senior and also assessed higher in merit as compared to the petitioner, was recommended to be promoted as Executive Engineer. 7. There is no reason to disbelieve the reply to the application filed on behalf of the 1st respondent on the affidavit of Under Secretary (PW) to the Govt. of Himachal Pradesh and also of the 2nd respondent on his own affidavit, that the ACRs for the years 2003-04 and 2004-05 were not available at the time of convening the meeting of DPC. The petitioner, no doubt, has denied such contention being wrong and come forward with the version that such ACRs were available, however, without any proof thereto. Otherwise also, there being no allegation of malafide against either the respondent or the member of the DPC, it cannot be believed that ACRs for these years were withheld deliberately or intentionally just to put the petitioner in any loss. I, therefore, find no merit in this petition and the same is accordingly dismissed.