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Judgment
Petitioner is a Constable (Mechanic) working as Electrician with Armed wing of the State Police after his appointment on 22.06.1982 on
substantive basis. In 1991, on the recommendations of the Departmental Promotion Committee various police personnel in transport Workshop
Cadre, were promoted as Head Constables and Selection Grade Constables. Respondents 4 to 10, junior to petitioner were promoted as
Selection Grade Constables vide order dated 11.03.1991 (Annexurep3). The petitioner was left out and not promoted.
This order 120 of 91 dated: 11.03.1991 as also promotion of respondents 4 to 10 juniothers to the petitioner is under challenge in this writ
petition.
Petitioner alleges that the promotion to selection Grade has to be according to seniority/merit. Petitioner is senior to the promoted respondents 4
to 10, as is evident from seniority list (AnnexureP2). The petitioner has earned a recommendation certificate in 1987. His conduct is good.
Petitioner's character roles are also good and satisfactory, in so far as if there were any adverse remarks or adverse enteres in his ACRs/APRs,
same would haw been conveyed to him, therefore, he presumes that his ACRs are not adverse to him. For promotion to the post of Selection
Grade Constable, neither any written test nor vivaexamination is prescribed or held. No minimum qualification marks are prescribed for the
purpose. No criteria or norm is laid or adopted for giving promotions to the higher grade of selection grade constable posts to eligible constables.
Though on seniority, merit and suitability he deserved to he promoted, yet he was denied grade promotion illegally without any justifiable reason.
The petitioner has not been given equal treatment with those who were equally placed and circumstanced as the petitioner for purpose of the
promotion in question.
Respondents have filed reply. It is admitted that the petitioner's appointment as Constable Electrician has been on substantive post. It is also
admitted that the petitioner is senior to respondents. It is averred that the departmental Promotion Committee considered the case of petitioner
alongwith respondents and other eligible candidates. The seniority of petitioner is not denied. Noncommunication of adverse ACRs is not also
refuted. Earning of recommendation awarded in 1987 is not also refuted. However, petitioner is stated to have been refused promotion by the
Departmental Promotion Committee after it found that the petitioner has been awarded minor punishment in December 1987 and punishment of
fine in January 1998. Besides the remarks recorded in the character roles of the petitioner for the years 1986 to 1990, were adverse. The
Committee assessed him for the rank of selection fixed constable. The Departmental Promotion Committee fixed 12 marks for qualifying for the
rank selection Grade Constable. But the petitioner could only earn one negative mark. Hence no promotion. The criteria for promotion to the
Selection Grade Constable is meritcumseniority and not vice versa and other respondents secured the qualifying marks and therefore were found fit
and given promotion. The counsel for petitioner solicits that no norm or method is laid by Departmental Promotion Committee for selection to
Selection Grade Constable. No yard stick is laid to Judge how the 12 marks have been assessed and apportioned incase of candidates failing
within consideration zone. The whole material before Departmental Promotion Committee was one performance certificate, one minor punishment,
one fine punishment and allegedly the adverse ACRs for four years 1986 to 1990, on which the petitioner has been considered. Since alleged
adverse ACRs for all these years have not been conveyed to petitioner, therefore, the same could not have been considered adverse to petitioner.
This is so as in reply, respondents have not refuted/denied the petitioner's allegation that the adverse remarks in petitioner's character roles were at
no stage and even for that matter the adverse censure and punishment was/were at no stage communicated to him. This being so there is no
material whatsoever adverse to the petitioner and capped to it the seniority of the petitioner would place the petitioner on a stronger footing than
the respondents. Petitioner has been discriminated against and arbitrarily left out from the promotion list and denied promotion.
Counsel for the respondents while contesting the arguments admits that the adverse enteries in the character rools of the petitioner in the years
1986 to 1990, have not been communicated to him. He also admits that in terms of the reply filed by a predecessor Mr.U.K.Jalali, SAAG, way
back in September 1992, noncommunication of censure and punishment of fine has not also specifically been communicated to the petitioner. It is
equally conceded that though it is stated that 12 marks were set by the Departmental Promotion Committee as qualifying marks for promotion to
the rank or Selection Grade Constable, but now a candidate aspiring to be promoted is assessed for these 12 marks is not given. It is solicited that
though it is not laid how the petitioner has been actually assessed to have secured negative one mark as against respondent 4 to 10, electrician with
him and much junior to him, who have been assessed as 10 and above, all the same as Departmental Promotion Committee has fairly and
objectively assessed the eligible candidates for promotion, therefore, there is no merit in the contention of the petitioner that he has been
discriminated against and denied promotion.
Admittedly the petitioner is senior to private respondent including respondent No.l0an electrician with him in the department. Petitioner's plea of
noncommunication of the alleged adverse enteries in ACRs is not all commented upon muchless refuted. Adverse report in ACR/ APR cannot be
relied to deny promotion unless it is communicated to the person concerned. In Gurdial Singh Fijji's case (AIR 1979 S.C 1622), their lordships
observed
The principle is wellsettled that in accordance with the rules of natural justice adverse report in a confidential rool cannot be acted upon to
deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct
or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the
superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified...
Similarly, n oncommunication of the punishment of ensure and fine is not also specifically denied. Though it is stated that 12 marks were set by
the Departmental Promotion Committee as qualifying marks for promotion to the rank of selection Grade Constable but no method or norm is
given as to how the candidate falling within consideration zone for the promotion is assessed for and apportioned these 12 marks. No method of
evaluation of record for this purpose is given or set in reply. Departmental promotion Committee's record is not produced No document thereto is
placed on record. In the facts and circumstances of this case, assertion and that too naked one that the criteria for the promotion has been fixed, it
not sufficient. The absence of guidelines and norms for exercise of power in matters of promotion under the police rules governing this case fall
within the mischief which article 14 of the constitution is to prevent. The action(s) of the Departmental promotion Committee though purely
administrative are required to confirm to the procedural fairness. The promotional Committee has to take the decision reasonably without being
influenced or guided by irrelevant considerations. Irrelevant and legally excludeable material and record cannot be taken into consideration by the
Committee. The Committee has to be reasonable, fair equally (SIC) disposed to all. It has to adhere and observe the fair procedure while
according consideration and making recommendations for promotion to the rank of Selection Grade Constables. This has not been done in this
case.
It is noted that the affidavit sworn by Administrative officer Police Head quarter Jammu/Srinagar, in support of the reply is defective. It is not in
conformance with the law. The contents of the reply are stated in verification (Supplied subsequently), to be believed to be true and correct as per
official record by the deponent, the said Administrative Officer. Infact the affidavit is not sworn to the knowledge of the deponent (even in part) on
ground that the person has access to and knowledge of the record. For the aforesaid reasons the writ petition is accepted. As the promotion of
respondents 4 to 10 has been ordered by this court not to be confirmed vide its order dated: 17.12.1991, therefore, mandamus is issued to the
respondents to treat the petitioner promoted to the rank of selection Grade Constable from the date promotion has been given to respondents 4 to
10, with consequential benefits. On equitable grounds promotion of respondents 4 to 10, is not disturbed.