IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

Civil Writ Petition No.6578 of 2012 (O & M)

Date of Decision: September 20, 2018

Surinder Kumar Mahajan

..... PETITIONER

VERSUS

State of Punjab & others

..... RESPONDENTS

. . .

CORAM:

HON'BLE MR. JUSTICE JASPAL SINGH

. . .

PRESENT: - Mr. C.M. Chopra, Advocate, for the petitioner.

Mr. Jaswinder Singh, Senior Deputy Advocate General,

Punjab.

. . .

Jaspal Singh, J

Through the instant writ petition preferred under Article

226/227 of the Constitution of India, petitioner has sought for issuance of a

writ in the nature of mandamus, directing the respondents to upgrade his

ACR for the period 1994-95 wherein adverse remarks recorded stands

expunged by the Government vide letter dated September 16, 2009

conveyed on September 23, 2009 (Annexure P-1) and for declaration that

non-communication of average reports is arbitrary and violative of Article

14 of the Constitution, as well as for release of ACP from the due date i.e.

January 01, 1996.

Heard learned counsel for the parties and perused the record.

AVIN KUMAR

2018.09.25 10:39

I attest to the accuracy and

integrity of this document

CWP No.6578 of 2012 [2]

Petitioner was working as Executive Engineer in the office of

Director, Plant Design & Central Purchase Organization, Ranjit Sagar Dam

Project, Shahpurkandi Township. He retired from service on October 31,

2009 on attaining the age of superannuation. It is the case of petitioner that

he was denied the benefit of ACP on competition of 4, 9, 14 years of service

w.e.f. January 01, 1996 in view of Punjab Government circular dated April

17, 2000 of ACP Scheme as his ACRs for the period 1993-94, 1994-95 and

1995-96 were average which were never conveyed or communicated to him.

Though, adverse remarks in ACR of 1994-95 were expunged by the Punjab

Government, Irrigation Department vide letter dated September 23, 2009

(Annexure P-1) but ACP w.e.f. January 01, 1996 has been rejected on the

ground that his ACRs were not upto the bench mark.

The only question which requires determination in this case is

whether the ACRs pertaining to the years 1993-94, 1994-95 and 1995-96

which have been adjudged as Average= and have not been conveyed to the

petitioner, can be taken into consideration while assessing the benchmark for

the purposes of Promotion or Grant of ACPs.

This question/controversy is no more res-integra in view of the

catena of judgments delivered by the Hon9ble Apex Court as well as by this

Court. A similar question came up for hearing before this Court in Dr.

Gurdev Singh Bhardwaj vs. State of Punjab & others, 2012(4) SCT 635,

wherein following the law laid down by the Hon9ble Apex Court, this Court

observed as under:-

<10. The first question that arises for consideration is as to

whether the ACR relating to the year 2005-06 wherein the

petitioner had been graded as 'average' and the same having

not been communicated to the petitioner could have been

taken into account while determining the bench mark for

purposes of promotion to the post of Senior Medical Officer.

AVIN KUMAR

2018.09.25 10:39

I attest to the accuracy and

integrity of this document

CWP No.6578 of 2012 [3]

11. The Hon'ble Supreme Court in the case of Dev Dutt v.

Union of India and others reported as2008(3) S.C.T. 429 ;

2008(4) R.A.J. 432 ; (2008) 8 SCC 725 had held in the

following terms:

<Learned counsel for the respondent relied on a decision of

this Court in Vijay Kumar vs. State of Maharashtra & Ors.

1988 (Supp) SCC 674 in which it was held that an un-

communicated adverse report should not form the

foundation to deny the benefits to a government servant

when similar benefits are extended to his juniors. He also

relied upon a decision