Arvind Kumar vs State Of Uttarakhand & Ors.

Lok Pal Singh, J

Petitioner has approached this Court seeking the following reliefs:-

i) Issue a writ, order or direction in the nature of certiorari for quashing the order dated 15.12.2017 issued by the Uttarakhand Police Headquarter, whereby the representation submitted by the petitioner for treating the categorization of the petitioner ACR entry 'Excellent' for the year 2010 to be 'Outstanding' as per the Govt. Orders has been rejected in a cryptic manner and also quash the communication dated 8th August 2017.

ii) Issue a writ, order or direction in the nature of certiorari for quashing the selection and appointment of the private respondent no.4 on the post of Inspector (Civil Police) vide order dated 15th October 2016 issued by the Office of the Director General, Uttarakhand Police Headquarters, Dehradun.

iii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to award 1.5 additional marks for the entry Excellent given to the petitioner for the year 2010 treating the same to be "outstanding" in the selection process for the post of Inspector (Civil Police) and accordingly revise the marks allotted to the petitioner on the basis of service record.

iv) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to consider the candidature of the petitioner for promotion on the post of Inspector (Civil Police) after revising the marks of the petitioner, in the selection process initiated in the year 2015 for the said post.

Factual matrix of the case is that on 02.02.2015 the Police Headquarters issued a Circular for making regular selection on the post of Inspector (Civil Police) from Sub Inspector (Civil Police) who has completed minimum 10 years of service on the post of Sub Inspector and have satisfactory service record from 01.01.2004. Appointment by promotion on the post of Inspector (Civil Police) in Uttarakhand Police is governed by the procedure prescribed vide Notification dated 23.09.2004 notified by the Department of Home, Government of Uttarakhand, which contemplates that for promotion on the post of Inspector (Civil Police/Intelligence), the Sub Inspector (Civil Police/Intelligence) who have rendered at least 10 years of service as such on 1st day of April of a recruitment year and have satisfactory service record of 10 years will be eligible. This Notification was subsequently amended by another Notification dated 15.09.2006 whereby clause 3 of the Notification was amended by providing that 35 marks would be available for ACR entries. It was further clarified that for awarding the marks based on ACR entries of last 5 years, 3.5 marks would be awarded for 'Outstanding' category, 02 marks for 'Very Good' and 01 marks for 'Good'. On 18.12.2003, the State Government issued a Government Order regarding the procedure for ACR entries which provided that at the end of the ACR entry, the reporting officer would provided the grading of concerned employee based on his total work and conduct. The grading would be categorized as Outstanding, Very Good, Good, satisfactory and bad/unsatisfactory. Subsequently, the State Government issued another Government Order dated 30.09.2010 providing that ACR entries would be categorized in 04 categories viz. Outstanding, Very Good, Good, Bad/Unsatisfactory, which was, however, repealed/cancelled vide another Government Order dated 10.12.2012 and the government order dated 18.12.2003 was revoked which provided that the ACR entries would be graded in 05 categories, namely, Outstanding, Very Good, Good, satisfactory and bad/unsatisfactory.

On 07.10.2016, the Office of the Director General of Police, Uttarakhand issued a Circular regarding holding of the Interview for selection on the post of Inspector (Civil Police), which provided that the selection has to be held for promotion against 126 vacancies on the post of Inspector (Civil Police) and candidates four times of the vacancies i.e. 230 eligible Sub Inspector would be called for interview. Petitioner, being eligible, was also included in the list of eligible Sub Inspector to be called for interview. Merit list was prepared on the basis of marks obtained in ACR entries and interview, which showed that the last promotee Inspector (Civil Police) has obtained 74.5 marks out of 100 whereas the petitioner has secured 73.5 marks. Vide order dated 15.10.2016 and 03.05.2017, total 124 Sub Inspectors (Civil Police), excluding the petitioner, have been promoted on the post of Inspector (Civil Police and Intelligence). Petitioner obtained information under the Right to Information Act and came to know that for the ACR entry 'Excellent' for the year 2010 the petitioner has been awarded 02 marks. Thereafter, the petitioner made a representation to the Director General of Police, Uttarakhand, Dehradun, in respect of grading of the ACR entry awarded in the year 2010 to the petitioner as 'Excellent' being contrary to the provisions of the Government Orders in force pertaining to the recording of the ACR entries, and requested that the ACR entry of the petitioner for the year 2010 be treated as 'Outstanding' in place of 'Excellent'. Representation of the petitioner was rejected by the Police Department by order dated 15.12.2017.

It is the contention of learned counsel for the petitioner that the as per the Government Order which was in force at the relevant point of time, the ACR entries were to be categorized as Outstanding, Very Good, Good, Bad/Unsatisfactory, there was no such category as 'Excellent', therefore, the category 'Excellent' awarded to the petitioner for the year 2010 is contrary to the said Government Order. It is also the contention that the respondents have wrongly given 02 marks for the ACR entry by treating the category 'Excellent' as equivalent to 'Very Good'. According to the petitioner, 'Excellent' is equivalent to 'Outstanding' and thus he has to be awarded 3.5 marks, and as such, the petitioner secured 75 marks.

Counter affidavit has been filed on behalf of respondent no.2, wherein it is stated as per the government order no.1712/Karmik-2/2003 dated 18.12.2003 regarding the annual entries the following categories has been fixed:-

Outstanding 2. Very Good 3. Good. 4. Satisfactory 5. Bad/Unsatisfactory.

It is also stated that in the ACR of the petitioner for the year 2010 word 'Excellent' has been mentioned, which has been treated/evaluated as Very Good and the petitioner has been given 02 marks for the same which is correct as per law. It is also stated that in the ACR entry of the petitioner for the year 2010 the word 'Excellent' has been mentioned as per the government order issued by the State of U.P. dated 23.03.1994, which provides that entry 'Excellent' be calculated as 'very good'.

Rejoinder affidavit has also been filed by the petitioner denying the averments made in the counter affidavit.

I have heard learned counsel for the parties and have gone through the entire material available on record.

Although a detailed counter affidavit has been filed by the respondent no.2 but the same is evasive and vague. In the counter affidavit, on the one hand the respondents states that the State Government has issued government orders from time to time regarding ACR entries and that as per Government Order dated 18.12.2003 it was directed that the ACR entries would be graded in 05 categories, namely, Outstanding, Very Good, Good, satisfactory and bad/unsatisfactory, while on the other hand the respondents states that the petitioner has been given category 'Excellent' in his ACR, which as per Government Order dated 23.03.1994, issued by the State of U.P., is equivalent to 'Very Good'. After the creation of State of Uttarakhand, when a specific government order has been issued by the Government of Uttarakhand, in regard to ACR entries, the Government Order dated 23.03.1994 issued by the State of U.P. before bifurcation, would become redundant for the State of Uttarakhand.

The Government Order dated 18.12.2003 issued by the Government of Uttarakhand provided that the ACR entries would be graded in 05 categories, namely, Outstanding, Very Good, Good, satisfactory and bad/unsatisfactory. However, the petitioner has been awarded 'Excellent'. In the ACR of the petitioner, it has been recorded that he is 'Hardworking and sincere Sub Inspector has been categorized as 'Excellent'. 'Excellent' does not find mention in the government order dated 18.12.2003, but due to ignorance of the reporting officer, petitioner has been awarded entry 'Excellent', which according to the respondents is equivalent to 'Very Good' and on such basis petitioner has been awarded 02 marks for the ACR entry for the year 2010. As per the Oxford Dictionary, the meaning of word 'Excellent' is an adjective which means very great, outstanding; the meaning of Outstanding is exceptionally good, clearly noticeable, not yet done or paid. The words 'Outstanding' and 'Excellent' connote one and the same meaning which is distinct from the word 'Very Good'.

In the light of aforesaid, this Court is of the considered view that firstly the reporting officer has committed error in awarding the petitioner entry 'Excellent' which was contrary to the Government Orders and secondly the respondents have further committed mistake in treating the ACR entry 'Excellent' equivalent to 'Very Good' and thereby awarding 02 marks to the petitioner. Petitioner cannot be made to suffer on account of mistake committed by the reporting officer.

Accordingly, writ petition is allowed. A writ of mandamus is issued against the respondent Department with the following directions:-

i) ACR entry of the petitioner for the year 2010 wherein entry of 'Excellent' has been awarded shall be treated as 'Outstanding' by the respondent department and 1.5 additional marks shall be awarded to the petitioner in the selection process, and thereafter, the petitioner shall be declared successful for promotion on the post of Inspector (Civil Police).

ii) As by changing the nomenclature of the ACR entry from 'Excellent' to 'Outstanding, the petitioner has now secured 75 marks, he shall be treated to be promoted on the post of Inspector (Civil Police) from the date when the person who has secured 74.5 marks was promoted.

iii) Respondent Department shall accordingly fix the salary of the petitioner. Arrears of enhanced salary, by virtue of promotion, shall be paid to the petitioner within a period of six months from today.

iv) Seniority of the petitioner shall be fixed as per the marks secured in the selection process.

No order as to costs.