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HARDEV SINGH versus STATE OF HARYANA ETC.

High Court of Punjab and Haryana, Chandigarh

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Hardev Singh v. State of Haryana etc. - CWP-4365-1988 [2006] RD-P&H 3996 (12 July 2006)

C.W.P.No.4365 of 1988 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

C.W.P.No.4365 of 1988

Date of Decision: 30-5-2006

Hardev Singh ........Petitioner

v.

State of Haryana and others ......Respondents CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.D.S.Bali, Sr.Advocate with

Mr.Namit Gautam, Advocate

for the petitioner.

Mr.Suresh Monga, Sr.DAG, Haryana

for the respondents.

***

P.S.PATWALIA, J.

Petitioner joined the Police Department as a Constable on 22.6.1947.

Being in service, he earned promotions from time to time and was ultimately promoted as a Sub Inspector of Police on 18.6.1975 against which post he was confirmed on 24.8.1985.

Petitioner was granted extension in service on attaining the age of 55 years in the year 1985. He claims that during his entire tenure of service his record has been good/above board.

It is stated by the petitioner that while posted at Gurgaon there was an enquiry against him on the allegation that he lost his service revolver negligently. However, the said departmental enquiry was filed on 13.2.1985.

The petitioner claims that many Sub Inspectors junior to him were C.W.P.No.4365 of 1988 [2]

promoted to the post of Inspector. However, he had been superseded. Since he had been ignored for promotion as an Inspector, he filed a representation on 10.6.1986. The same was however rejected on 9.10.1986. Petitioner states that he then filed a further representation on 18.4.1988. That representation remained pending and in the meanwhile the petitioner was to retire from service on 30.6.1988. After retirement when no action had been taken on his representation he then filed the present writ petition claiming promotion to the post of Inspector of Police with effect from the date persons junior to the petitioner were promoted.

In the writ petition the contention raised by the petitioner is that inspite of the fact that his service record was good, he was not promoted only on account of the fact that he had been granted extension on completion of age of 55 years in the year 1985 and since he was on extension he was not promoted.

Petitioner has cited cases of Shri Shambhu Lal and Shri Dalbir Singh who had been promoted during the period of extension and stated that in these circumstances the action of the State in not promoting him was discriminatory.

Respondents have filed a written statement opposing the writ petition. It is denied in the written statement that petitioner was not promoted as an Inspector as he was on extension beyond the age of 55 years. Rather it is stated that when his junior was promoted on 25.9.1985 petitioner's claim was considered as per government instructions dated 9.5.1975 which envisage that an employee should have 70% or more reports of good or better category during the last 10 years to be considered eligible for promotion to the higher post. Since the petitioner did not fulfill this criteria he had to be ignored. Relevant extract of the reply is as hereunder:-

"In the writ petition the petitioner has raised a point that he was not promoted as Inspector although he was given extension beyond the age of 55 years. In this connection it is submitted that the petitioner at the time of consideration of his name for entry to list `F' C.W.P.No.4365 of 1988 [3]

out of which Sub Inspectors are promoted had at his credit his service record as under:-

1975-76 Below Average

1976-77 Average

1977-78 Below average

1978-79 Average

1979-80 Good

1980-81 Good

1981-82 Good

1982-83 Good

1983-84 Good

1984-85 Good

It is also stated here that for the purpose of entry into list `F' which ultimately becomes the basis for promotion the Govt. have laid down policy that an employee claiming promotion must have at his credit atleast 70% good record. The above resume of his service record will itself show that the petitioner had at his credit only 60% of good record. Place in this situation the petitioner did not satisfy the conditions for promotion and as such he had to be ignored." Apart from this respondents have further pleaded that promotions took place on 25.9.1985. Petitioner however has approached this Court by filing the present writ petition in May, 1988 after almost three years. Moreover, petitioner was to retire on 30.6.1988 and by the time the written statement was being filed in October, 1988 petitioner had already retired. It is therefore submitted that the petition is belated and is liable to be rejected on the ground of delay and laches.

The case set up in the petition to the effect that the petitioner was ignored for promotion only on account of the fact that he was on extension has been refuted by the respondents in their written statement. It has been clearly stated that the petitioner was considered for promotion when his juniors were promoted but was ignored as he did not fulfill the requirement of 70% good or better category reports during the preceding 10 years prior to his promotion. Thus, C.W.P.No.4365 of 1988 [4]

on the basis of the case as pleaded in the petition, the claim of the petitioner is liable to fail on this ground alone.

At the time of hearing, Mr.D.S.Bali learned Senior Advocate appearing for the petitioner further argued that since the average reports were not conveyed to the petitioner they cannot be treated as adverse so as to deny the petitioner's claim for promotion. On the other hand Mr.Monga appearing for the respondent-State has referred to instructions dated 9.5.1985 which state as hereunder:-

"The matter has been considered further by the State Government and it has been decided that in further only such officials/officer(s) who have obtained at least 70% or more reports of `good' or better categories during the last 10 years should be considered eligible for promotion to a higher post. However, as before greater weightage shall be given to the reports earned on the higher post from which further promotion is being considered." These instructions have been referred to in the preliminary objections even though the date of the instructions has not been mentioned. Mr.Monga stated that there was no challenge to these instructions in this writ petition and therefore the consideration of the petitioner's claim by the respondents on the basis of these instructions which were being uniformly applied in all cases was valid and legal.

A reading of the instructions would show that at least 70% of the reports are required to be good or better than that for a person to be considered fit for promotion. The petitioner did not make this grade. The employer is entitled to prescribe the yardstick required to consider a person fit for promotion. In the present case the yardstick is of 70% good or better than good reports in the last 10 years. It is not a case where an average report is being treated as adverse.

Moreover, in the present case neither is there any challenge to these instructions nor the case as argued has been pleaded in the writ petition. Therefore in the facts C.W.P.No.4365 of 1988 [5]

and circumstances of the case I am of the opinion that the petitioner's case was considered as per the policy instructions prevalent at that time and since he failed to make the grade he was not promoted. The action of the respondents is in terms of the instructions and cannot be held to be unfair or arbitrary.

The facts of this case further reveal that the petitioner was superseded on 25.9.1985. His representation against the same was also rejected on 9.10.1986. However, the present writ petition was filed in May, 1988 when the petitioner was on the verge of retirement. The petition has been filed almost three years after the petitioner's juniors were promoted and at least two years after the rejection of his representation. In the facts of this case, I am of the opinion that the petition is belated. The petition is therefore also liable to be dismissed as being belated and on account of delay and laches.

For the reasons mentioned above, the present writ petition is dismissed. In the circumstances of this case there shall, however, be no order as to costs.

( P.S.PATWALIA )

May 30, 2006. JUDGE

RC


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